sv1
As filed with the Securities and Exchange Commission on
October 22, 2010
No. 333-
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Form S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
VISTEON CORPORATION
(Exact name of registrant as
specified in its charter)
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Delaware
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3714
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38-3519512
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(State or other jurisdiction
of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification No.)
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One Village Center Drive,
Van Buren Township,
Michigan 48111
(800) 847-8366
(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
(312) 862-2000
Approximate date of commencement of proposed sale to the
public: As soon as practicable after this
Registration Statement becomes effective.
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, check the
following
box: þ
If this Form is filed to registered 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. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) 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. o
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 o
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Accelerated
filer o
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Non-accelerated
filer o
(Do not check if a smaller reporting company)
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Smaller reporting
company þ
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CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount
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Offering Price
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Aggregate
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Registration
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Securities to be Registered
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to be Registered
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per Share
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Offering Price(1)
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Fee(2)
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Common stock, par value $0.01 per share
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46,972,866
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$62.50
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$2,935,804,125
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$209,322.83
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(1) |
Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(o) under the Securities act of
1933, as amended (the Securities Act).
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(2) |
Calculated pursuant to Rule 457(o) under the Securities Act
based on an estimate of the maximum aggregate offering price.
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities act of 1933 or until this Registration
Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be
changed. The selling stockholders may not sell these securities
until the registration statement filed with the Securities and
Exchange Commission relating to these securities is effective.
This prospectus is not an offer to sell these securities and it
is not a solicitation of an offer to buy these securities in any
jurisdiction where such offer, solicitation or sale is not
permitted.
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SUBJECT TO COMPLETION, DATED
OCTOBER 22, 2010
Visteon Corporation
46,972,866 Shares Common
Stock
The selling stockholders are offering 46,972,866 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 42
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 4.
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 traded on the
Over-the-Counter
Bulletin Board, commonly known as the OTC
Bulletin Board, under the trading symbol
VSTO.OB. On October 20, 2010 the last traded
price of the common stock was $62.50 per share.
This prospectus is
dated ,
2010.
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.
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 covenants
applicable to it; and the continuation of acceptable supplier
payment terms;
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our ability to satisfy pension and other post-retirement
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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ii
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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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WHERE YOU
CAN FIND ADDITIONAL INFORMATION
We have filed with the SEC a registration statement on
Form S-1
under 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 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.
iii
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 (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, 2009;
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Our Quarterly Reports on
Form 10-Q
for the periods ended March 31, 2010 and June 30,
2010; and
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Our Current Reports on
Form 8-K
(and amendments thereto) filed on March 17, 2010,
May 12, 2010, May 27, 2010, June 14, 2010,
June 17, 2010, July 30, 2010, September 7, 2010,
September 28, 2010, October 1, 2010, October 4,
2010 and October 19, 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
iv
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.
In September 2005, we transferred 23 of our North American
facilities and certain other related assets and liabilities (the
ACH Business) to Automotive Components Holdings, LLC
(ACH), an indirect, wholly-owned subsidiary of
Visteon. On October 1, 2005, we sold ACH to Ford for cash
proceeds of approximately $300 million, as well as the
forgiveness of certain other postretirement employee benefit
liabilities and other obligations relating to hourly employees
associated with the ACH Business and the assumption of certain
other liabilities. The transferred facilities included all of
our plants that leased hourly workers covered by Fords
Master Agreement with the United Auto Workers Union. The ACH
Business accounted for approximately $6.1 billion of the
Companys total product sales for 2005, the majority being
products sold to Ford.
In January 2006, we 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 2008, weakened economic conditions, largely attributable
to the global credit crisis, and erosion of consumer confidence,
negatively impacted the automotive sector on a global basis.
Significant factors including the deterioration of housing
values, rising fuel prices, equity market volatility and rising
unemployment levels resulted in consumers delaying purchases of
durable goods, particularly highly deliberated purchases such as
automobiles. Additionally, the absence of available credit
hindered vehicle affordability, forcing consumers out of the
market globally. Together these factors combined to drive a
severe decline in demand for automobiles across substantially
all geographies. Despite actions taken to reduce our operating
costs in 2008, the rate of such reductions did not keep pace
with that of the rapidly deteriorating market conditions and
related decline in OEM production volumes, which resulted in
significant operating losses and cash flow usage, particularly
in the fourth quarter of 2008.
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
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(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.
Fresh-Start
Accounting
As of the Effective Date, we adopted fresh start accounting in
accordance with accounting principles generally accepted in the
United States (GAAP). The actual impact at emergence
on October 1, 2010 will be reported in our
Form 10-K
for the year ending December 31, 2010. The consolidated
financial statements for the periods ended September 30,
2010 and prior do not include the effect of any changes in our
capital structure or changes in the fair value of assets and
liabilities as a result of fresh start accounting. As a result
of the fresh start accounting adjustments governed by GAAP, we
anticipate a significant increase in intangible assets.
The financial information incorporated by reference herein,
unless otherwise expressly set forth or as the context otherwise
indicates, reflects our historical consolidated results of
operations, financial condition and cash flows for the periods
presented. That historical financial information does not
reflect, among other things, any effects of the transactions
contemplated by the Plan of Reorganization or any fresh-start
accounting, which we adopted upon our emergence from protection
under Chapter 11 of the Bankruptcy Code. Thus, such
financial information will not be representative of our
performance or financial condition after the effective date of
the Plan of Reorganization.
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.
2
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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46,972,866 shares of common stock |
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Shares of common stock outstanding after this offering |
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50,309,187 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 8 of this prospectus and
all other information set forth in this prospectus before
investing in our common stock. |
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OTC Bulletin Board Symbol |
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VSTO.OB |
The number of shares to be outstanding after consummation of
this offering is based on 50,309,187 shares of common stock
outstanding as of October 1, 2010 including shares granted
as restricted stock under the Visteon Corporation 2010 Incentive
Plan regardless of whether such shares have vested, but does not
include 3,888,889 additional shares of common stock reserved for
issuance under the Visteon Corporation 2010 Incentive Plan,
1,552,774 shares issuable upon the exercise of warrants at
an exercise price of $58.80 per share that expire on
October 1, 2015 or 2,355,000 shares issuable upon the
exercise of warrants at an exercise price of $9.66 per share
that expire on October 1, 2020.
3
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, 2009 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.
Following the consummation of the Plan of Reorganization, our
financial condition and results of operations from and after the
Effective Date will not be comparable to the financial condition
or results of operations reflected in our historical financial
statements.
As a result of our restructuring under Chapter 11 of the
Bankruptcy Code, our financial statements will be subject to
fresh start accounting as prescribed by GAAP, in which our
assets, liabilities and non-controlling interests will be
recorded at their estimated fair value using the principles of
purchase accounting. Goodwill, if any, will result if the
reorganization value of Visteon exceeds the net total of the
fair value of its assets, liabilities and non-controlling
interests. Adjustments to the carrying amounts could be material
and could affect prospective results of operations as balance
sheet items are settled, depreciated, amortized or impaired.
This will make it difficult for stockholders to assess our
performance in relation to prior periods. Our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2010 will reflect
the consummation of the Plan of Reorganization and the adoption
of fresh start accounting.
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
are registered for resale under the registration statement of
which this prospectus forms a part. The selling stockholders, as
of October 20, 2010, owned approximately 93.4% of our
outstanding common stock, 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.
On October 1, 2010 we issued 3,497,520 shares of new
common stock to holders of our previously outstanding common
stock and holders of certain of our debt securities. These
shares of new common stock are freely tradable may be sold in
the public markets from time to time.
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.
Some of our creditors or other investors who receive shares of
our new common stock in connection with our Plan of
Reorganization may sell the shares of new common stock shortly
after emergence from bankruptcy for any number of reasons. 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.
4
The
market price of our common stock may be volatile, which could
cause the value of your investment to decline.
Since our emergence from bankruptcy, there has been a low volume
of trading in our common stock. We can give no assurance that
there will be greater liquidity in the trading market for our
common stock in the future. If there is limited liquidity in the
trading market for our common stock, a sale of a large number of
shares of our common stock could adversely affect the market
price of our common stock.
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:
|
|
|
|
|
our operating and financial performance and prospects;
|
|
|
|
our ability to repay our debt;
|
|
|
|
our access to financial and capital markets to refinance our
debt or replace the existing credit facilities;
|
|
|
|
investor perceptions of us and the industry and markets in which
we operate;
|
|
|
|
our dividend policy;
|
|
|
|
future sales of equity or equity-related securities;
|
|
|
|
changes in earnings estimates or buy/sell recommendations by
analysts; and
|
|
|
|
general financial, domestic, economic and other market
conditions.
|
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 of us.
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. All of
these factors could materially adversely affect the price of our
common stock.
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.
We do
not currently anticipate paying cash dividends on our common
stock in the foreseeable future.
We have not paid dividends on our common stock since 2004 and do
not currently anticipate paying any cash dividends on our common
stock in the foreseeable future. The terms of our credit
facility restrict our ability to pay cash dividends on our
common stock and repurchase shares of our common stock.
5
Our
operations may be restricted by the terms of our exit financing
pursuant to 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:
|
|
|
|
|
incur additional debt;
|
|
|
|
make certain investments;
|
|
|
|
enter into certain types of transactions with affiliates;
|
|
|
|
limit dividends or other payments by our restricted subsidiaries
to us;
|
|
|
|
use assets as security in other transactions;
|
|
|
|
pay dividends on our new common stock or repurchase our equity
interests;
|
|
|
|
sell certain assets or merge with or into other companies;
|
|
|
|
guarantee the debts of others;
|
|
|
|
enter into new lines of business;
|
|
|
|
make capital expenditures;
|
|
|
|
prepay, redeem or exchange our debt; and
|
|
|
|
form any joint ventures or subsidiary investments.
|
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.
Our
emergence from bankruptcy will reduce or eliminate our U.S. net
operating losses and other tax attributes and limit our ability
to offset future U.S. taxable income with tax losses and credits
incurred prior to our emergence from bankruptcy.
The discharge of a debt obligation by a taxpayer in a bankruptcy
proceeding for an amount less than its adjusted issue price (as
defined for tax purposes) generally creates cancellation of
indebtedness income, or COD income, that is excludable from a
taxpayers taxable income. However certain tax attributes
otherwise available and of value to a debtor will be reduced to
the extent of the excludable COD income. Additionally, Internal
Revenue Code Sections 382 and 383 provide an annual
limitation with respect to the ability of a corporation to
utilize its tax attributes, as well as certain
built-in-losses,
against future U.S. taxable income in the event of a change
in ownership. As a result of our emergence from bankruptcy we
expect to have excludable COD income that will reduce our
U.S. net operating losses and other tax attributes and we
expect a limitation under Internal Revenue Code
Sections 382 and 383 as a result of an ownership change.
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, 2009, which is incorporated
by reference herein, for risk factors related to our business
and industry.
6
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 $659,323 in connection
with this offering.
DIVIDEND
POLICY
We do not expect to pay dividends on our common stock for the
foreseeable future. After the completion of this offering, we
anticipate that all of our earnings, if any, in the foreseeable
future will be used in the operation and growth of our business.
Any future determination to pay dividends will be at the
discretion of our board of directors and will depend upon, among
other factors, our results of operations, financial condition,
capital requirements and contractual restrictions.
MARKET
FOR OUR COMMON STOCK
Our common stock has been quoted on the OTC Bulletin Board
since October 5, 2010 under the symbol VSTO.OB.
No prior established public trading market existed for our
common stock prior to this date.
There currently is a limited trading market for our common
stock. The following chart lists the high and low sale prices
for shares of our common stock for the calendar quarter
indicated through October 20, 2010. These prices are
between dealers and do not include retail markups, markdowns or
other fees and commissions and may not represent actual
transactions.
|
|
|
|
|
|
|
|
|
Quarter Ended
|
|
High
|
|
Low
|
|
December 31, 2010 (through October 20, 2010)
|
|
$
|
57.00
|
|
|
$
|
62.50
|
|
The closing price of our common stock on the OTC
Bulletin Board on October 20, 2010 was $62.50 per
share.
As of October 20, 2010, we had approximately 13,279 holders
of record of our common stock, based on information provided by
our transfer agent.
7
UNAUDITED
PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
The following unaudited pro forma condensed consolidated
financial information (the Pro Forma Financial
Information) sets forth selected historical consolidated
financial information for Visteon Corporation and its
consolidated subsidiaries. The historical data provided as of
and for the six months ended June 30, 2010 and for the
twelve months ended December 31, 2009 are derived from our
unaudited quarterly and audited annual consolidated financial
statements which have been incorporated by reference into this
prospectus.
The Pro Forma Financial Information is provided for
informational and illustrative purposes only and should be read
in conjunction with Managements Discussion and
Analysis of Financial Condition and Results of Operations,
and the consolidated financial statements and related notes in
the annual report on
Form 10-K
for the year ended December 31, 2009 and the quarterly
report on
Form 10-Q
for the six months ended June 30, 2010 which have been
incorporated by reference into this prospectus. In addition, our
historical financial statements will not be comparable to the
financial statements of reorganized Visteon following emergence
from bankruptcy due to the effects of the consummation of the
Plan of Reorganization as well as adjustments for fresh-start
accounting.
The Pro Forma Financial Information has been prepared as if the
adjustments and transactions described above occurred on
January 1, 2009 for the unaudited pro forma condensed
consolidated statements of operations and on June 30, 2010
for the unaudited pro forma condensed consolidated balance
sheet. Each of these adjustments is more fully described below
and within the notes to the Pro Forma Financial Information.
|
|
|
|
|
Reorganization adjustments give effect to the Plan of
Reorganization and the transactions contemplated therein.
|
|
|
|
Fresh start adjustments reflect the adoption of fresh-start
accounting, in accordance with GAAP.
|
Reorganization
Adjustments
The Reorganization adjustments included in the Pro Forma
Financial Information give effect to the Plan of Reorganization
and the transactions contemplated therein, including the
discharge of administrative claims, estimated claims allowed by
the Bankruptcy Court, and reorganized Visteons
recapitalization upon emergence from Chapter 11 of the
Bankruptcy Code. These adjustments include:
|
|
|
|
|
the cancellation of any shares of old common stock and any
options, warrants or rights to purchase shares of old common
stock or other equity securities outstanding prior to the
Effective Date;
|
|
|
|
the issuance of approximately 50,200,000 new shares of common
stock (excluding any shares that may be issued upon the exercise
of warrants), including the following:
|
|
|
|
|
|
approximately 45,000,000 shares of new common stock to
certain investors in a private offering exempt from registration
under the Securities Act for proceeds of $1.25 billion;
|
|
|
|
approximately 2,500,000 shares of new common stock to
holders of pre-petition notes, including 7% Senior Notes
due 2014, 8.25% Senior Notes due 2010 and
12.25% Senior Notes due 2016;
|
|
|
|
approximately 1,700,000 shares of new common stock to
management pursuant to a post-emergence management equity
incentive program; and
|
|
|
|
approximately 1,000,000 shares of new common stock to
holders of old common stock;
|
|
|
|
|
|
the execution of an exit financing facility including
$500 million in funded, secured debt and a $200 million
asset-based, secured revolver, which is expected to be undrawn
at the Effective Date; and
|
|
|
|
the application of proceeds from such borrowings and sales of
equity along with cash on hand to make settlement distributions
contemplated under the Plan of Reorganization.
|
The Pro Forma Financial Information excludes the estimated gain
of approximately $1.0 billion resulting from the settlement
of pre-petition obligations pursuant to the Plan of
Reorganization as such gain is non-recurring. For additional
information regarding the Reorganization Adjustments
see the related notes to the Pro Forma Financial Information.
8
Fresh
Start Adjustments
Fresh start adjustments result in the allocation of
reorganization value to the fair value of assets as of the
Effective Date. Under fresh start accounting, reorganization
value is allocated to the fair value of assets in accordance
with GAAP and is generally allocated first to tangible assets
and identifiable intangible assets and lastly to excess
reorganization value (i.e. goodwill). Reorganization value
includes an estimated enterprise value of approximately
$2.4 billion, which approximates the amount a willing buyer
would pay for the assets of Visteon immediately after the
reorganization and represents our best estimate of fair value
within the range of enterprise values contemplated by the
Bankruptcy Court.
Estimated reorganization value and fair values included in the
Pro Forma Financial Information represent preliminary values
determined as of June 30, 2010, have been made solely for
purposes of developing the Pro Forma Financial Information
included herein, and are subject to further revisions and
adjustments. Updates to such preliminary valuations will be
completed in the periods subsequent to those reported in this
prospectus and will be calculated as of our actual emergence
date of October 1, 2010 and, to the extent such updates
reflect a valuation different than those used in the Pro Forma
Financial Information, there may be adjustments in the carrying
values of certain assets and liabilities and related deferred
taxes. To the extent actual valuations differ from those used in
preparing the Pro Forma Financial Information, these differences
will be reflected in our consolidated balance sheet upon
emergence under fresh start accounting and may also affect the
revenues and expenses, which would be recognized in the
statement of operations post-emergence from bankruptcy. As such,
the following Pro Forma Financial Information is not intended to
represent actual post-emergence financial condition or results
of operations, and any differences could be material.
The Pro Forma Financial Information excludes certain
non-recurring amounts that we expect to incur following the
effective date of emergence, including approximately
$30 million related to the valuation
step-up of
inventory and certain post-emergence bankruptcy-related
professional fees. For additional information regarding the
Fresh Start Adjustments see the related notes to the
Pro Forma Financial Information.
Pro Forma
Financial Information
The unaudited pro forma condensed consolidated balance sheet is
presented as of June 30, 2010 and the unaudited pro forma
condensed consolidated statements of operations are presented
for the year ended December 31, 2009 and for the six months
ended June 30, 2010. The following Pro Forma Financial
Information was prepared by applying adjustments to historical
consolidated financial statements. These adjustments give effect
to the Plan and fresh start accounting, reflecting our
post-emergence financial statements as if the emergence date had
occurred on January 1, 2009 for the unaudited pro forma
condensed consolidated statements of operations and on June 30,
2010 for the unaudited pro forma condensed consolidated balance
sheet.
The Pro Forma Financial Information does not purport to
represent what reorganized Visteons actual results of
operations or financial position would have been had the Plan of
Reorganization become effective or had the other transactions
described above occurred on January 1, 2009 or on
June 30, 2010, as the case may be. In addition, the dollar
amount of new equity and stockholders equity on the
unaudited pro forma condensed consolidated balance sheet is not
an estimate of the market value of the common stock or any other
shares of capital stock of reorganized Visteon as of the
Effective Date or at any other time. We make no representations
as to the market value, if any, of the common stock or of any
other shares of capital stock of reorganized Visteon.
9
VISTEON
CORPORATION AND SUBSIDIARIES
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF
OPERATIONS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended June 30, 2010
|
|
|
|
|
|
|
Reorganization
|
|
|
Fresh Start
|
|
|
|
|
|
|
Historical
|
|
|
Adjustments
|
|
|
Adjustments
|
|
|
Pro Forma
|
|
|
|
(Dollars in millions, except per share amounts)
|
|
|
Net Sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Products
|
|
$
|
3,735
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
3,735
|
|
Services
|
|
|
114
|
|
|
|
|
|
|
|
|
|
|
|
114
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,849
|
|
|
|
|
|
|
|
|
|
|
|
3,849
|
|
Cost of Sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Products
|
|
|
3,214
|
|
|
|
40
|
(a)
|
|
|
126
|
(g)
|
|
|
3,380
|
|
Services
|
|
|
113
|
|
|
|
|
|
|
|
|
|
|
|
113
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,327
|
|
|
|
40
|
|
|
|
126
|
|
|
|
3,493
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross margin
|
|
|
522
|
|
|
|
(40
|
)
|
|
|
(126
|
)
|
|
|
356
|
|
Selling, general and administrative expenses
|
|
|
201
|
|
|
|
(3
|
)(b)
|
|
|
(14
|
)(h)
|
|
|
184
|
|
Reorganization items, net
|
|
|
69
|
|
|
|
(69
|
)(c)
|
|
|
|
|
|
|
|
|
Restructuring expenses
|
|
|
17
|
|
|
|
|
|
|
|
|
|
|
|
17
|
|
Asset impairments and loss on divesture
|
|
|
25
|
|
|
|
|
|
|
|
|
|
|
|
25
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
210
|
|
|
|
32
|
|
|
|
(112
|
)
|
|
|
130
|
|
Interest expense
|
|
|
135
|
|
|
|
(107
|
)(d)
|
|
|
|
|
|
|
28
|
|
Interest income
|
|
|
6
|
|
|
|
|
|
|
|
|
|
|
|
6
|
|
Equity in net income of non-consolidated affiliates
|
|
|
65
|
|
|
|
|
|
|
|
|
|
|
|
65
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes
|
|
|
146
|
|
|
|
139
|
|
|
|
(112
|
)
|
|
|
173
|
|
Provision for income taxes
|
|
|
75
|
|
|
|
|
(e)
|
|
|
|
(e)
|
|
|
75
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
71
|
|
|
|
139
|
(f)
|
|
|
(112
|
)
|
|
|
98
|
|
Net income attributable to noncontrolling interests
|
|
|
39
|
|
|
|
|
|
|
|
|
(i)
|
|
|
39
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to Visteon
|
|
$
|
32
|
|
|
$
|
139
|
|
|
$
|
(112
|
)
|
|
$
|
59
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic per share data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average shares outstanding
|
|
|
130.3
|
|
|
|
|
|
|
|
|
|
|
|
50.3
|
(j)
|
Net income attributable to Visteon
|
|
$
|
0.25
|
|
|
|
|
|
|
|
|
|
|
$
|
1.17
|
(j)
|
Diluted per share data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average shares outstanding
|
|
|
130.3
|
|
|
|
|
|
|
|
|
|
|
|
52.3
|
(j)
|
Net income attributable to Visteon
|
|
$
|
0.25
|
|
|
|
|
|
|
|
|
|
|
$
|
1.13
|
(j)
|
See accompanying notes to the unaudited pro forma condensed
consolidated financial statements.
10
VISTEON
CORPORATION AND SUBSIDIARIES
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF
OPERATIONS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Twelve Months Ended December 31, 2009
|
|
|
|
|
|
|
Reorganization
|
|
|
Fresh Start
|
|
|
|
|
|
|
Historical
|
|
|
Adjustments
|
|
|
Adjustments
|
|
|
Pro Forma
|
|
|
|
(Dollars in millions, except per share amounts)
|
|
|
Net Sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Products
|
|
$
|
6,420
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
6,420
|
|
Services
|
|
|
265
|
|
|
|
|
|
|
|
|
|
|
|
265
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,685
|
|
|
|
|
|
|
|
|
|
|
|
6,685
|
|
Cost of Sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Products
|
|
|
5,827
|
|
|
|
52
|
(a)
|
|
|
18
|
(g)
|
|
|
5,897
|
|
Services
|
|
|
261
|
|
|
|
|
|
|
|
|
|
|
|
261
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,088
|
|
|
|
52
|
|
|
|
18
|
|
|
|
6,158
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross margin
|
|
|
597
|
|
|
|
(52
|
)
|
|
|
(18
|
)
|
|
|
527
|
|
Selling, general and administrative expenses
|
|
|
331
|
|
|
|
40
|
(b)
|
|
|
62
|
(h)
|
|
|
433
|
|
Restructuring expenses
|
|
|
84
|
|
|
|
|
|
|
|
|
|
|
|
84
|
|
Reimbursement from escrow account
|
|
|
62
|
|
|
|
|
|
|
|
|
|
|
|
62
|
|
Reorganization items, net
|
|
|
60
|
|
|
|
(60
|
)(c)
|
|
|
|
|
|
|
|
|
Deconsolidation and other gains
|
|
|
106
|
|
|
|
|
|
|
|
|
|
|
|
106
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
290
|
|
|
|
(32
|
)
|
|
|
(80
|
)
|
|
|
178
|
|
Interest expense
|
|
|
117
|
|
|
|
(55
|
)(d)
|
|
|
|
|
|
|
62
|
|
Interest income
|
|
|
11
|
|
|
|
|
|
|
|
|
|
|
|
11
|
|
Equity in net income of non-consolidated affiliates
|
|
|
80
|
|
|
|
|
|
|
|
|
|
|
|
80
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes
|
|
|
264
|
|
|
|
23
|
|
|
|
(80
|
)
|
|
|
207
|
|
Provision for income taxes
|
|
|
80
|
|
|
|
|
(e)
|
|
|
1
|
(e)
|
|
|
81
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
184
|
|
|
|
23
|
(f)
|
|
|
(81
|
)
|
|
|
126
|
|
Net income attributable to noncontrolling interests
|
|
|
56
|
|
|
|
|
|
|
|
(1
|
)(i)
|
|
|
55
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to Visteon
|
|
$
|
128
|
|
|
$
|
23
|
|
|
$
|
(80
|
)
|
|
$
|
71
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic per share data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average shares outstanding
|
|
|
130.4
|
|
|
|
|
|
|
|
|
|
|
|
50.3
|
(j)
|
Net income attributable to Visteon
|
|
$
|
0.98
|
|
|
|
|
|
|
|
|
|
|
$
|
1.41
|
(j)
|
Diluted per share data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average shares outstanding
|
|
|
130.4
|
|
|
|
|
|
|
|
|
|
|
|
52.3
|
(j)
|
Net income attributable to Visteon
|
|
$
|
0.98
|
|
|
|
|
|
|
|
|
|
|
$
|
1.36
|
(j)
|
See accompanying notes to the unaudited pro forma condensed
consolidated financial statements.
11
VISTEON
CORPORATION AND SUBSIDIARIES
NOTES TO
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED
STATEMENTS
OF OPERATIONS
Reorganization
Adjustments
|
|
|
(a) |
|
Cost of sales increased by $40 million and by
$52 million for the six months ended June 30, 2010 and
the twelve months ended December 31, 2009, respectively, as
shown below: |
|
|
|
|
|
|
|
|
|
|
|
Six Months
|
|
|
Twelve Months
|
|
|
|
Ended
|
|
|
Ended
|
|
|
|
June 30, 2010
|
|
|
December 31, 2009
|
|
|
|
(Dollars in millions)
|
|
|
Other postretirement employee benefit (OPEB)
settlements
|
|
$
|
38.0
|
|
|
$
|
39.0
|
|
Incentive compensation, including share-based compensation
|
|
|
2.0
|
|
|
|
13.0
|
|
|
|
|
|
|
|
|
|
|
Pro forma adjustment
|
|
$
|
40.0
|
|
|
$
|
52.0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
In connection with the Plan of Reorganization, the Company
settled certain OPEB obligations and ceased to provide such
benefits. The adjustment above eliminates the net benefit
associated with such settlements from the historical financial
results. Additionally, the historical financial results have
been adjusted to reflect new management incentive compensation
arrangements as contemplated under the Plan of Reorganization,
including share-based compensation granted in connection with
the Management Equity Incentive Program. |
|
(b) |
|
This adjustment reflects changes in Selling, general and
administrative expenses in connection with implementation of the
Plan of Reorganization as shown below: |
|
|
|
|
|
|
|
|
|
|
|
Six Months
|
|
|
Twelve Months
|
|
|
|
Ended
|
|
|
Ended
|
|
|
|
June 30, 2010
|
|
|
December 31, 2009
|
|
|
|
(Dollars in millions)
|
|
|
Incentive compensation, including share-based compensation
|
|
$
|
(2.0
|
)
|
|
$
|
61.0
|
|
Elimination of pre-petition bankruptcy related professional fees
|
|
|
|
|
|
|
(19.0
|
)
|
Reduction in non-qualified benefit plan expense
|
|
|
(1.0
|
)
|
|
|
(2.0
|
)
|
|
|
|
|
|
|
|
|
|
Pro forma adjustment
|
|
$
|
(3.0
|
)
|
|
$
|
40.0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(c) |
|
Reflects the elimination of bankruptcy-related reorganization
expenses of $69 million and $60 million for the six
months ended June 30, 2010 and for the twelve months ended
December 31, 2009, respectively. The Company expects to
incur post emergence Chapter 11 related costs, including
professional fees, that are not included in the Pro Forma
Financial information as such costs are considered to be
non-recurring. |
12
|
|
|
(d) |
|
This adjustment reflects changes in interest expense associated
with the post-emergence capital structure contemplated under the
Plan of Reorganization, which includes a $500 million term
loan and a $200 million revolving line of credit that is
assumed to be undrawn at the Effective Date. These changes
result in a net decrease of $107 million for the six months
ended June 30, 2010 and a net decrease of $55 million
for the year ended December 31, 2009, as shown below: |
|
|
|
|
|
|
|
|
|
|
|
Six Months
|
|
|
Twelve Months
|
|
|
|
Ended
|
|
|
Ended
|
|
|
|
June 30, 2010
|
|
|
December 31, 2009
|
|
|
|
(Dollars in millions)
|
|
|
Interest on post-petition debt:
|
|
|
|
|
|
|
|
|
Interest on $500 million secured term loan
|
|
$
|
20.0
|
|
|
$
|
40.0
|
|
Availability fee on revolving line of credit
|
|
|
1.0
|
|
|
|
2.0
|
|
Amortization of deferred debt issuance costs
|
|
|
1.0
|
|
|
|
2.0
|
|
Accretion of discount
|
|
|
1.0
|
|
|
|
2.0
|
|
|
|
|
|
|
|
|
|
|
Total pro forma interest expense
|
|
|
23.0
|
|
|
|
46.0
|
|
Less: interest on pre-petition debt
|
|
|
(130.0
|
)
|
|
|
(101.0
|
)
|
|
|
|
|
|
|
|
|
|
Pro forma adjustment
|
|
$
|
(107.0
|
)
|
|
$
|
(55.0
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The expected interest rate on the post-emergence secured term
loan is the London Interbank Borrowing Rate (LIBOR),
not less than 1.75%, plus a margin of 6.25%. The Company
estimates its weighted average interest rate will be
approximately 8% based on current LIBOR rates. A one percent
increase or decrease on the expected weighted average interest
rate would increase or decrease interest expense on the
post-emergence debt by $5 million. |
|
|
|
The Company estimates debt issuance costs to be approximately
$16 million, fees paid to the lenders to be approximately
$12 million and original issuance discount to be
approximately $10 million. Debt issuance costs are
amortized over the remaining life of the respective debt
instrument. The original issuance discount and fees paid to
lenders are reflected as a reduction to the carrying value of
the debt and are accreted over the life of the debt instrument
through interest expense. |
|
|
|
Additionally, the Company will pay a commitment fee on undrawn
amounts under the revolving line of credit of between 0.50% and
0.75% per annum based on availability. |
|
(e) |
|
Reflects the net change in estimated total income tax provision
associated with reorganization and fresh start adjustments for
the six months ended June 30, 2010 and for the twelve
months ended December 31, 2009. These changes are based on
the application of enacted statutory tax rates to the pro forma
adjustments by jurisdiction affecting only those without a full
valuation allowance. |
|
(f) |
|
The gain resulting from the cancellation of indebtedness
pursuant to the Plan of Reorganization of approximately
$1.0 billion has been excluded from the pro forma
adjustments because this amount will not continue post emergence. |
Fresh
Start Adjustments
|
|
|
(g) |
|
Cost of sales for the six months ended June 30, 2010 and
the twelve months ended December 31, 2009 are estimated to
increase by $126 million and $18 million,
respectively, associated with fair market value adjustments as
shown below: |
|
|
|
|
|
|
|
|
|
|
|
Six Months
|
|
|
Twelve Months
|
|
|
|
Ended
|
|
|
Ended
|
|
|
|
June 30, 2010
|
|
|
December 31, 2009
|
|
|
|
(Dollars in millions)
|
|
|
Elimination of pension and OPEB related deferred amounts
|
|
$
|
143.0
|
|
|
$
|
96.0
|
|
Depreciation expense
|
|
|
(26.0
|
)
|
|
|
(96.0
|
)
|
Intangible asset amortization
|
|
|
9.0
|
|
|
|
18.0
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
126.0
|
|
|
$
|
18.0
|
|
|
|
|
|
|
|
|
|
|
13
|
|
|
|
|
Additionally, the Company estimates that Cost of sales will
increase $30 million during the first 30 to 60 days
post emergence (first inventory turn) due to the write up of
inventory to fair value. This cost has been excluded from the
Pro Forma Financial Information as this amount is considered to
be non-recurring. |
|
(h) |
|
Selling, general and administrative expenses are estimated to
decrease by $14 million for the six months ended
June 30, 2010 and to increase by $62 million for the
twelve months ended December 31, 2009, associated with fair
value adjustments, as shown below: |
|
|
|
|
|
|
|
|
|
|
|
Six Months
|
|
|
Twelve Months
|
|
|
|
Ended
|
|
|
Ended
|
|
|
|
June 30, 2010
|
|
|
December 31, 2009
|
|
|
|
(Dollars in millions)
|
|
|
Elimination of pension and OPEB related deferred amounts
|
|
$
|
(14.0
|
)
|
|
$
|
69.0
|
|
Depreciation expense
|
|
|
(4.0
|
)
|
|
|
(16.0
|
)
|
Intangible asset amortization
|
|
|
4.0
|
|
|
|
9.0
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
(14.0
|
)
|
|
$
|
62.0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(i) |
|
These adjustments account for the noncontrolling interest
portion of the depreciation and amortization adjustments
discussed in (g) and (h) above. |
|
(j) |
|
For purposes of the Companys basic and diluted pro forma
earnings per share calculations, the Company has used the
following amounts of shares of common stock of reorganized
Visteon outstanding as of the Effective Date: |
|
|
|
|
|
Direct shares issued through the rights offering
|
|
|
45,145,000
|
|
Direct shares issued to holders of allowed claims
|
|
|
3,497,520
|
|
Shares granted under management equity incentive program
|
|
|
1,666,667
|
|
|
|
|
|
|
Pro forma basic shares
|
|
|
50,309,187
|
|
Stock warrants (treasury stock method)
|
|
|
1,962,297
|
|
|
|
|
|
|
Pro forma diluted shares
|
|
|
52,271,484
|
|
|
|
|
|
|
14
VISTEON
CORPORATION AND SUBSIDIARIES
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE
SHEET
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of June 30, 2010
|
|
|
|
|
|
|
Reorganization
|
|
|
Fresh Start
|
|
|
|
|
|
|
Historical
|
|
|
Adjustments
|
|
|
Adjustments
|
|
|
Pro Forma
|
|
|
|
(Dollars in millions)
|
|
|
ASSETS
|
Cash and equivalents
|
|
$
|
979
|
|
|
$
|
(98
|
)(a)
|
|
$
|
|
|
|
$
|
881
|
|
Restricted cash
|
|
|
181
|
|
|
|
(106
|
)(b)
|
|
|
|
|
|
|
75
|
|
Accounts receivable, net
|
|
|
1,032
|
|
|
|
|
|
|
|
|
|
|
|
1,032
|
|
Inventories, net
|
|
|
351
|
|
|
|
|
|
|
|
30
|
(j)
|
|
|
381
|
|
Other current assets
|
|
|
285
|
|
|
|
|
|
|
|
(8
|
)(j)
|
|
|
277
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
2,828
|
|
|
|
(204
|
)
|
|
|
22
|
|
|
|
2,646
|
|
Property and equipment, net
|
|
|
1,721
|
|
|
|
|
|
|
|
(231
|
)(j)
|
|
|
1,490
|
|
Equity in net assets of non-consolidated affiliates
|
|
|
357
|
|
|
|
|
|
|
|
(2
|
)(j)
|
|
|
355
|
|
Intangible assets
|
|
|
5
|
|
|
|
|
|
|
|
469
|
(j)
|
|
|
474
|
|
Other non-current assets
|
|
|
63
|
|
|
|
16
|
(c)
|
|
|
22
|
(k)
|
|
|
101
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
4,974
|
|
|
$
|
(188
|
)
|
|
$
|
280
|
|
|
$
|
5,066
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND SHAREHOLDERS (DEFICIT) EQUITY
|
Short-term debt, including current portion of long-term debt
|
|
$
|
207
|
|
|
$
|
(75
|
)(d)
|
|
$
|
|
|
|
$
|
132
|
|
Accounts payable
|
|
|
997
|
|
|
|
|
|
|
|
|
|
|
|
997
|
|
Accrued employee liabilities
|
|
|
189
|
|
|
|
|
|
|
|
|
|
|
|
189
|
|
Other current liabilities
|
|
|
327
|
|
|
|
188
|
(e)
|
|
|
(42
|
)(j)(k)
|
|
|
473
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
1,720
|
|
|
|
113
|
|
|
|
(42
|
)
|
|
|
1,791
|
|
Long-term debt
|
|
|
11
|
|
|
|
478
|
(f)
|
|
|
|
|
|
|
489
|
|
Employee benefits
|
|
|
509
|
|
|
|
6
|
(g)
|
|
|
|
|
|
|
515
|
|
Deferred income taxes
|
|
|
173
|
|
|
|
|
|
|
|
120
|
(k)
|
|
|
293
|
|
Other non-current liabilities
|
|
|
237
|
|
|
|
|
|
|
|
(28
|
)(j)
|
|
|
209
|
|
Liabilities subject to compromise
|
|
|
3,094
|
|
|
|
(3,094
|
)(h)
|
|
|
|
|
|
|
|
|
Shareholders (deficit) equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Visteon shareholders (deficit) equity
|
|
|
(1,097
|
)
|
|
|
2,309
|
(i)
|
|
|
94
|
(i)
|
|
|
1,306
|
|
Non-controlling interests
|
|
|
327
|
|
|
|
|
|
|
|
136
|
(j)
|
|
|
463
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total shareholders (deficit) equity
|
|
|
(770
|
)
|
|
|
2,309
|
|
|
|
230
|
|
|
|
1,769
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and shareholders (deficit) equity
|
|
$
|
4,974
|
|
|
$
|
(188
|
)
|
|
$
|
280
|
|
|
$
|
5,066
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to the unaudited pro forma condensed
consolidated financial statements.
15
VISTEON
CORPORATION AND SUBSIDIARIES
NOTES TO
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE
SHEET
Reorganization
Adjustments
|
|
|
(a) |
|
The Companys cash and equivalents reflects a net decrease
of $98 million after implementing the Plan of
Reorganization. The significant sources and uses of cash are as
follows: |
|
|
|
|
|
Cash sources:
|
|
|
|
|
Proceeds from rights offering
|
|
$
|
1,250.0
|
|
Exit facility proceeds, net
|
|
|
478.0
|
|
Release of restrictions on cash
|
|
|
106.0
|
|
|
|
|
|
|
Total cash sources
|
|
|
1,834.0
|
|
Cash uses:
|
|
|
|
|
Term loan settlement
|
|
|
1,630.0
|
|
ABL settlement
|
|
|
127.0
|
|
Payment of administrative and professional claims
|
|
|
22.0
|
|
Rights offering fees
|
|
|
60.0
|
|
DIP repayment
|
|
|
75.0
|
|
Debt issue costs
|
|
|
9.0
|
|
Claims settlements
|
|
|
9.0
|
|
|
|
|
|
|
Total cash uses
|
|
|
1,932.0
|
|
|
|
|
|
|
Net change in cash and equivalents
|
|
$
|
(98.0
|
)
|
|
|
|
|
|
|
|
|
(b) |
|
The decrease in restricted cash reflects the release of cash
that was restricted under various orders of the Bankruptcy
Court, partially offset by the establishment of a professional
fee escrow account of $68 million. |
|
(c) |
|
This adjustment records $16 million of estimated debt
issuance costs capitalized in connection with the exit financing
facility. |
|
(d) |
|
This adjustment gives effect to the repayment of borrowings
under the DIP facility. Additionally, this unaudited pro forma
financial information assumes that the $200 million ABL
under the exit facility is undrawn at emergence. |
|
(e) |
|
This adjustment reflects the establishment of a liability for
the payment of $188 million of allowed general unsecured
and other claims in accordance with the Plan of Reorganization. |
|
(f) |
|
This adjustment reflects the $500 million term loan under
the exit facility, net of $10 million original issuance
discount and $12 million of fees paid to the exit facility
lenders. |
|
(g) |
|
This adjustment represents the reinstatement of approximately
$6 million of OPEB obligations. |
16
|
|
|
(h) |
|
This adjustment reflects the settlement of liabilities subject
to compromise (LSC) in accordance with the Plan of
Reorganization, as shown below: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LSC
|
|
Settlement per
|
|
Gain on
|
|
|
June 30, 2010
|
|
Fifth Amended Plan
|
|
Settlement of LSC
|
|
Debt
|
|
$
|
2,490.0
|
|
|
$
|
1,758.0
|
|
|
$
|
732.0
|
|
Employee liabilities
|
|
|
329.0
|
|
|
|
36.0
|
|
|
|
293.0
|
|
Interest payable
|
|
|
153.0
|
|
|
|
130.0
|
|
|
|
23.0
|
|
Other claims
|
|
|
122.0
|
|
|
|
96.0
|
|
|
|
26.0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
3,094.0
|
|
|
$
|
2,020.0
|
|
|
$
|
1,074.0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LSC settlement scenarios:
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash settlement
|
|
|
(1,770.0
|
)
|
|
|
|
|
|
|
|
|
Liability reinstatement
|
|
|
(120.0
|
)
|
|
|
|
|
|
|
|
|
Equity distribution
|
|
|
(130.0
|
)
|
|
|
|
|
|
|
|
|
Gain on settlement of LSC
|
|
|
(1,074.0
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net change
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(i) |
|
The cancellation of old Visteon common stock in accordance with
the Plan of Reorganization and elimination of corresponding
shareholders deficit balances, are shown below: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Predecessor
|
|
|
|
|
|
|
|
|
Shareholders
|
|
|
|
|
|
Successor
|
|
|
Deficit
|
|
|
|
|
|
Shareholders
|
|
|
June 30,
|
|
Reorganization
|
|
Fresh Start
|
|
Equity
|
|
|
2010
|
|
Adjustments
|
|
Adjustments
|
|
June 30, 2010
|
|
Common stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Predecessor
|
|
$
|
131.0
|
|
|
$
|
(131.0
|
)
|
|
$
|
|
|
|
$
|
|
|
Successor
|
|
|
|
|
|
|
1.0
|
|
|
|
|
|
|
|
1.0
|
|
Stock warrants
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Predecessor
|
|
|
127.0
|
|
|
|
(127.0
|
)
|
|
|
|
|
|
|
|
|
Successor
|
|
|
|
|
|
|
68.0
|
|
|
|
|
|
|
|
68.0
|
|
Additional paid in capital
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Predecessor
|
|
|
3,408.0
|
|
|
|
(3,408.0
|
)
|
|
|
|
|
|
|
|
|
Successor
|
|
|
|
|
|
|
1,322.0
|
|
|
|
10.0
|
|
|
|
1,332.0
|
|
Accumulated deficit
|
|
|
(4,544.0
|
)
|
|
|
4,675.0
|
|
|
|
(131.0
|
)
|
|
|
|
|
Accumulated other comprehensive loss
|
|
|
(215.0
|
)
|
|
|
|
|
|
|
215.0
|
|
|
|
|
|
Other
|
|
|
(4.0
|
)
|
|
|
(91.0
|
)
|
|
|
|
|
|
|
(95.0
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shareholders (deficit) equity
|
|
$
|
(1,097.0
|
)
|
|
$
|
2,309.0
|
|
|
$
|
94.0
|
|
|
$
|
1,306.0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other consists of $95 million representing stock restricted
for use in connection with management incentive compensation
programs.
Fresh
Start Adjustments
|
|
|
(j) |
|
Fresh start adjustments reflect the adoption of fresh-start
accounting in accordance with GAAP and serves to record assets
and liabilities of reorganized Visteon at their respective fair
values, as follows: |
Inventory is recorded at fair value, which is estimated to
exceed book value by approximately $30 million.
The adjustment to other current assets reflects the write-off of
$8 million of prepaid insurance that relates to a policy
with no future benefit to reorganized Visteon and therefore has
no fair value.
17
Property and equipment are recorded at fair value. The Company
estimates that the book value of property and equipment exceeds
the fair value by $231 million.
Investments in non-consolidated affiliates are recorded at fair
value. In adjusting such investments to fair value, the Company
estimates that investments in non-consolidated affiliates
approximate their carrying value.
Identifiable intangible assets are recorded at fair value and
are estimated to increase by $467 million. Intangible
assets are primarily comprised of developed technology and
customer-related assets. These intangibles are amortized over
estimated useful lives of 8-20 years. Reorganization value
for amounts in excess of the value allocated to identifiable
tangible and intangible assets is recorded as goodwill. In
adjusting the balance sheet accounts to fair value, the Company
estimates an excess reorganization value of approximately
$2 million, which has been reflected as goodwill.
The adjustments to other current and other non-current
liabilities include a decrease of $85 million to eliminate
deferred revenue and an increase of $9 million for
leasehold intangibles.
Noncontrolling interests are recorded at fair value. The Company
estimates that the fair value of noncontrolling interests
exceeds book value by $136 million.
|
|
|
(k) |
|
Deferred tax impacts associated with the fresh start adjustments
result from changes in the book values of tangible and
intangible assets while the tax basis in such assets remains
unchanged. The Company anticipates that a full valuation
allowance will be maintained in the U.S., accordingly this
adjustment relates to the portion of the fresh start adjustments
applicable to certain
non-U.S. jurisdictions
where the Company is subject to and pays income taxes. Deferred
tax adjustments include the following: |
|
|
|
|
|
Balance Sheet Account Classification:
|
|
|
|
|
Other current assets
|
|
$
|
22.0
|
|
Other current liabilities
|
|
|
6.0
|
|
Deferred income taxes
|
|
|
120.0
|
|
|
|
|
|
|
Net increase in deferred tax liabilities
|
|
$
|
104.0
|
|
|
|
|
|
|
18
MANAGEMENT
Board of
Directors
Set forth below are the name, age, position and a description of
the business experience and certain other past and present
directorships of each of our directors as of October 18,
2010.
|
|
|
Director
|
|
Position(s)
|
|
Donald J. Stebbins
|
|
Chairman, President and Chief Executive Officer
|
Duncan H. Cocroft
|
|
Director
|
Philippe Guillemot
|
|
Director
|
Herbert L. Henkel
|
|
Director
|
Mark T. Hogan
|
|
Director
|
Jeffrey D. Jones
|
|
Director
|
Karl J. Krapek
|
|
Director
|
Timothy D. Leuliette
|
|
Director
|
William E. Redmond, Jr.
|
|
Director
|
Donald J. Stebbins is 52 years old and he has been
Visteons Chairman, President and Chief Executive Officer
since December 1, 2008 and a member of the Board of
Directors since December 2006. Prior to that, Mr. Stebbins
was President and Chief Executive Officer since June 2008 and
President and Chief Operating Officer since joining the Company
in May 2005. Before joining Visteon, Mr. Stebbins served as
President and Chief Operating Officer of operations in Europe,
Asia and Africa for Lear Corporation since August 2004,
President and Chief Operating Officer of Lears operations
in the Americas since September 2001, and prior to that as
Lears Chief Financial Officer. Mr. Stebbins is also a
director of WABCO Holdings.
Duncan H. Cocroft is 67 years old and he has been a
director of Visteon since October 18, 2010.
Mr. Cocroft is the former Executive Vice President and
Treasurer of Cendant Corporation, a provider of consumer and
business services primarily in the travel and real estate
services industries, a position he held from June 1999 through
March 2004. During that time, Mr. Cocroft also served as
Executive Vice President and Chief Financial Officer of PHH
Corporation, Cendants wholly-owned finance subsidiary.
Prior to joining Cendant in June 1999, Mr. Cocroft served
as Senior Vice President and Chief Administrative Officer of Kos
Pharmaceuticals. Mr. Cocroft also serves as a director of
GEO Specialty Chemicals, Inc., a privately-held manufacturer of
specialty chemicals, SBA Communications Corporation and Wellman,
Inc., a privately-held manufacturer of resin products.
Mr. Cocroft has also served as a director of Atlas Air
Worldwide Holdings, Inc. during the past five years.
Philippe Guillemot is 51 years old and he has been a
director of Visteon since October 1, 2010.
Mr. Guillemot has been the Chief Executive Officer of
Europcar Group, a provider of passenger car and light utility
vehicle rentals, since April 2010. Prior to that, he was
Chairman and Chief Executive Officer of AREVA T&D Holdings
SA, a multinational construction and engineering firm, since
2004. Mr. Guillemot has held various automotive management
positions with Faurecia SA, Valeo SA and Michelin.
Herbert L. Henkel is 62 years old and he has been a
director of Visteon since October 1, 2010. Mr. Henkel
is the former Chairman of the Board and Chief Executive Officer
of Ingersoll-Rand plc, a manufacturer of industrial products and
components. Mr. Henkel retired from Ingersoll-Rand as
Chairman of the Board on June 3, 2010, a position he held
since May 2000, and retired as Ingersoll-Rands Chief
Executive Officer, a position he held since October 1999, on
February 4, 2010. Mr. Henkel also served as President
and Chief Operating Officer of
Ingersoll-Rand
from April 1999 to October 1999. Prior to that he held various
leadership roles at Textron, Inc, including its President and
Chief Operating Officer from
1998-1999.
Mr. Henkel also serves as a director of 3M Company and C.
R. Bard, Inc. Mr. Henkel has also served as a director of
Pitney Bowes, Inc. and AT&T Corp. during the past five
years.
Mark T. Hogan is 59 years old and he has been a
director of Visteon since October 1, 2010. Mr. Hogan
has been the President of Dewey Investments LLC, a consultant to
automotive-related entities, since January 2010. Prior to
19
that he was Chief Executive Officer and President of The Vehicle
Production Group, LLC, a designer and marketer of automobiles to
serve mobility impaired individuals, since January 2008.
Mr. Hogan also served as the President of Magna
International Inc., an automotive components supplier, from
September 2004 to December 2007, and prior to joining Magna,
Mr. Hogan held a variety of management and executive
positions with General Motors Corporation.
Jeffrey D. Jones is 58 years old and he has been a
director of Visteon since October 1, 2010. Mr. Jones
is an attorney with Kim & Chang, a South Korea-based
law firm, a position he has held since 1980. Mr. Jones
serves as Chairman of the Board of Partners for Future
Foundation, a Korean non-profit foundation. Mr. Jones has
also served as a Director of POSCO and the Doosan Corporation
during the past five years.
Karl J. Krapek is 61 years old and he has been a
director of Visteon since February 2003. Mr. Krapek is the
former President and Chief Operating Officer of United
Technologies Corporation, a global supplier of aerospace and
building systems products, a position he held from April 1999 to
January 2002. Prior to that he was named Executive Vice
President and a Director in 1997, and served as President of
United Technologies Pratt and Whitney Company since 1992.
Mr. Krapek currently serves as a director of Northrop
Grumman Corporation, Prudential Financial, Inc. and The
Connecticut Bank and Trust Company. He has also served as a
director of Alcatel-Lucent and Delta Airlines, Inc. during the
last five years.
Timothy D. Leuliette is 60 years old and he has been
a director of Visteon since October 1, 2010.
Mr. Leuliette is the Chairman and Chief Executive Officer
of Leuliette Partners LLC, an investment and financial services
firm. Until October 14, 2010, Mr. Leuliette served as
the President and Chief Executive Officer of Dura Automotive
LLC, an automotive supplier, since July 2008, a director of Dura
since June 2008, and the Chairman of the Board of Dura since
December 2008. Mr. Leuliette also served as a Managing
Director of Patriarch Partners LLC, the majority shareholder of
Dura. Prior to that, he served as Co-Chairman and Co-Chief
Executive Officer of Asahi Tec Corporation, a manufacturer of
automotive parts and other products, and Chairman, Chief
Executive Officer and President of Metaldyne Corporation, an
automotive supplier, from January 2001 to January 2008. Over his
career he has held executive and management positions at both
vehicle manufacturers and suppliers and has served on both
corporate and civic boards, including as Chairman of the Detroit
Branch of the Federal Reserve Bank of Chicago.
William E. Redmond, Jr. is 50 years old and he
has been a director of Visteon since October 1, 2010.
Mr. Redmond has served as Chief Executive Officer of
General Chemical Corporation, a manufacturer of performance
chemicals (formerly known as GenTek Inc.), since May 2005, and a
Director of General Chemical since November 2003. In December,
2008, Mr. Redmond also became President and Chief Executive
Officer of GT Technologies, Inc., formerly one of GenTek
Inc.s wholly-owned subsidiaries. Mr. Redmond
previously served as President and Chief Executive Officer from
December 1996 to February 2003 and as Chairman of the Board of
Directors from January 1999 to February 2003 of Garden Way,
Inc., a manufacturer of outdoor garden and power equipment.
Mr. Redmond also currently serves as a director of Amports,
Inc., a privately-held North American automobile processer, and
Source Interlink Companies, Inc., a privately-held diversified
publishing and distribution company. Mr. Redmond has served
as a director of Mark IV Industries, Inc., Eddie Bauer
Holdings, Inc., Maxim Crane Works Holdings, Inc., Citation
Corporation, and USA Mobility, Inc. during the past five years.
Director
Independence
Our board of directors is comprised of nine directors, eight of
which are independent directors as defined under our Director
Independence Guidelines and the rules of the New York Stock
Exchange. Each of our audit committee, organization and
compensation committee, corporate governance and nominating
committee and our finance committee contains only independent
directors.
Compensation
Committee Interlocks and Insider Participation
None of our executive officers currently serves, or in the past
year has served, as a member of the board of directors or
compensation committee of any entity that has one or more
executive officers serving on our board of directors or
compensation committee.
20
PRINCIPAL
STOCKHOLDERS
The following table sets forth information as of
October 20, 2010 regarding the beneficial ownership of our
common stock by:
|
|
|
|
|
each of our directors;
|
|
|
|
each of our named executive officers;
|
|
|
|
each holder of more than 5% of our outstanding shares of common
stock; and
|
|
|
|
all of our directors and executive officers as a group.
|
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 of
October 20, 2010 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.
Percentage of beneficial ownership is based on
50,309,187 shares of common stock outstanding as of
October 20, 2010. Except as disclosed in the footnotes to
this table, we believe that each stockholder identified in the
table possesses sole voting and investment power over all shares
of common stock shown as beneficially owned by the stockholder.
All percentages and share amounts are approximate based on
current information available to us. The information available
to us may be incomplete.
Unless otherwise noted, the address for each person listed on
the table is
c/o Visteon
Corporation, One Village Center Drive, Van Buren Township,
Michigan 48111.
|
|
|
|
|
|
|
|
|
|
|
Amount and Nature of Shares
|
|
|
Beneficially Owned(1)
|
|
|
|
|
Percent of All
|
Name
|
|
Number
|
|
Common Stock
|
|
5% Stockholders
|
|
|
|
|
|
|
|
|
Cyrus Capital Partners, L.P.
|
|
|
4,090,974
|
|
|
|
8.1
|
%
|
Monarch Funds(2)
|
|
|
4,349,732
|
|
|
|
8.6
|
%
|
Stark Offshore Management LLC
|
|
|
3,800,142
|
|
|
|
7.6
|
%
|
Executive Officers and Directors
|
|
|
|
|
|
|
|
|
Donald J. Stebbins(3)
|
|
|
366,667
|
|
|
|
*
|
|
Duncan H. Cocroft
|
|
|
|
|
|
|
*
|
|
Philippe Guillemot
|
|
|
|
|
|
|
*
|
|
Herbert L. Henkel
|
|
|
|
|
|
|
*
|
|
Mark T. Hogan
|
|
|
|
|
|
|
*
|
|
Jeffery D. Jones
|
|
|
|
|
|
|
*
|
|
Karl J. Krapek
|
|
|
|
|
|
|
*
|
|
Timothy D. Leuliette
|
|
|
|
|
|
|
*
|
|
William E. Redmond, Jr.
|
|
|
|
|
|
|
*
|
|
William G. Quigley III(4)
|
|
|
150,000
|
|
|
|
*
|
|
Julie A. Fream(5)
|
|
|
40,000
|
|
|
|
*
|
|
Joy M. Greenway(6)
|
|
|
75,000
|
|
|
|
*
|
|
Steve Meszaros(7)
|
|
|
75,000
|
|
|
|
*
|
|
Robert Pallash(8)
|
|
|
|
|
|
|
*
|
|
Michael K. Sharnas(9)
|
|
|
70,000
|
|
|
|
*
|
|
James F. Sistek(10)
|
|
|
60,000
|
|
|
|
*
|
|
Dorothy L. Stephenson(11)
|
|
|
40,000
|
|
|
|
*
|
|
Michael J. Widgren(12)
|
|
|
30,000
|
|
|
|
*
|
|
All executive officers and directors as a group
(18 persons)(13)
|
|
|
906,667
|
|
|
|
1.8
|
%
|
21
|
|
|
* |
|
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) |
|
Consists of 18,019 shares beneficially owned by Monarch
Capital Master Partners II-A LP, including 17,127 shares
underlying warrants to purchase shares of our common stock;
51,665 shares beneficially owned by Monarch Capital Master
Partners LP, including 49,682 shares underlying warrants to
purchase shares of our common stock; 8,773 shares
beneficially owned by Monarch Cayman Fund Limited,
including 7,154 shares underlying warrants to purchase
shares of our common stock; 87,116 shares beneficially
owned by Monarch Debt Recovery Master Fund Ltd, including
62,941 shares underlying warrants to purchase shares of our
common stock; 4,113,510 shares beneficially owned by
Monarch Master Funding Ltd; 62,601 shares beneficially
owned by Monarch Opportunities Master Fund Ltd, including
34,026 shares underlying warrants to purchase shares of our
common stock; and 8,048 shares beneficially owned by
Oakford MF Limited, including 5,933 shares underlying
warrants to purchase shares of our common stock. |
|
(3) |
|
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as of
October 20, 2010, but eligible to be voted. |
|
(4) |
|
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as of
October 20, 2010, but eligible to be voted. |
|
(5) |
|
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as
of October 20, 2010, but eligible to be voted. |
|
(6) |
|
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as
of October 20, 2010, but eligible to be voted. |
|
(7) |
|
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as of
October 20, 2010, but eligible to be voted. |
|
(8) |
|
As of October 20, 2010, Mr. Pallash holds 75,000
restricted stock units granted pursuant to the Visteon
Corporation 2010 Incentive Plan, which may be settled in cash or
shares of common stock at the election of the Company upon
vesting. |
|
(9) |
|
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as of
October 20, 2010, but eligible to be voted. |
|
(10) |
|
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as of
October 20, 2010, but eligible to be voted. |
|
(11) |
|
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as of
October 20, 2010, but eligible to be voted. |
|
(12) |
|
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as of
October 20, 2010, but eligible to be voted. |
|
(13) |
|
Includes shares of restricted stock issued pursuant the Visteon
Corporation 2010 Incentive Plan that are not yet vested as of
October 20, 2010, but eligible to be voted, and the shares
of our common stock beneficially owned described in footnotes
(2), (3), (4), (5), (6), (8), (9), (10) and (11). |
SELLING
STOCKHOLDERS
The following table sets forth information as of
October 15, 2010 regarding the beneficial ownership of our
common stock (1) immediately prior to this offering and
(2) as adjusted to give effect to this offering by the
selling stockholders.
In connection with our Plan of Reorganization, we have filed
with the SEC a registration statement on
Form S-1
under the Securities Act, of which this prospectus forms a part,
to register resales of certain shares of common stock that we
issued in connection with our emergence from bankruptcy.
The common stock is being registered to permit public sales of
the common stock by the selling stockholders. The selling
stockholders may offer the common stock for resale from time to
time pursuant to this prospectus.
22
However, the selling stockholders are under no obligation to
sell any of the common stock offered pursuant to this prospectus.
All information with respect to common stock ownership has been
furnished by or on behalf of the selling stockholders and is as
of October 20, 2010. 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 estimates 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.
The following table sets forth the names of the selling
stockholders, the number of shares of common stock beneficially
owned by them as of October 20, 2010, 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.
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 of
October 20, 2010 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.
Percentage of beneficial ownership is based on
50,309,187 shares of common stock outstanding as of
October 20, 2010. Except as disclosed in the footnotes to
this table, we believe that each stockholder identified in the
table possesses sole voting and investment power over all shares
of common stock shown as beneficially owned by the stockholder.
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)
|
|
|
1,841,758
|
|
|
|
1,841,758
|
|
|
|
|
|
|
|
*
|
|
Allen Global Partners Offshore(4)
|
|
|
51,399
|
|
|
|
51,399
|
|
|
|
|
|
|
|
*
|
|
Allen Global Partners L.P.(4)
|
|
|
82,456
|
|
|
|
82,456
|
|
|
|
|
|
|
|
*
|
|
Armory Master Fund, Ltd.(5)
|
|
|
566,412
|
|
|
|
566,412
|
|
|
|
|
|
|
|
*
|
|
Artio Global Credit Opportunities Fund, A series of Artio Alpha
Investment Funds(6)
|
|
|
10,000
|
|
|
|
10,000
|
|
|
|
|
|
|
|
*
|
|
Barclays Multi-Manager Fund PLC(7)
|
|
|
49,384
|
|
|
|
46,031
|
|
|
|
3,353
|
|
|
|
*
|
|
23
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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
|
|
Battery Park High Yield Long Short Fund Ltd.(7)
|
|
|
12,876
|
|
|
|
12,002
|
|
|
|
874
|
|
|
|
*
|
|
Battery Park High Yield Opportunity Master Fund Ltd.(7)
|
|
|
20,389
|
|
|
|
19,004
|
|
|
|
1,385
|
|
|
|
*
|
|
Battery Park High Yield Opportunity Strategic Fund, Ltd.(7)
|
|
|
22,534
|
|
|
|
21,004
|
|
|
|
1,530
|
|
|
|
*
|
|
Black Diamond Offshore Ltd.(8)
|
|
|
24,081
|
|
|
|
24,081
|
|
|
|
|
|
|
|
*
|
|
Blackwell Partners, LLC(9)
|
|
|
30,000
|
|
|
|
30,000
|
|
|
|
|
|
|
|
*
|
|
Blue Mountain Credit Alternatives Master Fund, L.P.(10)
|
|
|
26,442
|
|
|
|
26,442
|
|
|
|
|
|
|
|
*
|
|
BlueMountain Equity Alternatives Master Fund, L.P.(10)
|
|
|
7,932
|
|
|
|
7,932
|
|
|
|
|
|
|
|
*
|
|
BlueMountain Long/Short Credit Master Fund, L.P.(10)
|
|
|
5,288
|
|
|
|
5,288
|
|
|
|
|
|
|
|
*
|
|
BlueMountain Timberline Ltd.(10)
|
|
|
9,255
|
|
|
|
9,255
|
|
|
|
|
|
|
|
*
|
|
Brigade Leveraged Capital Structures Fund Ltd.(11)
|
|
|
599,809
|
|
|
|
599,809
|
|
|
|
|
|
|
|
*
|
|
Bronson Point Master Fund, L.P.
|
|
|
65,000
|
|
|
|
65,000
|
|
|
|
|
|
|
|
*
|
|
Brownstone Partners Catalyst Master Fund, Ltd.
|
|
|
55,200
|
|
|
|
55,200
|
|
|
|
|
|
|
|
*
|
|
CAI Distressed Debt Opportunity Master Fund Ltd
|
|
|
260,085
|
|
|
|
260,085
|
|
|
|
|
|
|
|
*
|
|
California Public Employees Retirement System(7)
|
|
|
63,171
|
|
|
|
58,724
|
|
|
|
4,447
|
|
|
|
*
|
|
Capital Ventures International(12)
|
|
|
1,342,852
|
|
|
|
1,342,852
|
|
|
|
|
|
|
|
*
|
|
Caspian Capital Partners, L.P.(13)
|
|
|
195,947
|
|
|
|
195,947
|
|
|
|
|
|
|
|
*
|
|
Caspian Select Credit Master Fund, Ltd.(13)
|
|
|
295,792
|
|
|
|
295,792
|
|
|
|
|
|
|
|
*
|
|
Centerbridge Credit Partners Master, L.P.(14)
|
|
|
446,118
|
|
|
|
446,118
|
|
|
|
|
|
|
|
*
|
|
Centerbridge Credit Partners, L.P.(15)
|
|
|
261,343
|
|
|
|
261,343
|
|
|
|
|
|
|
|
*
|
|
Centerbridge Special Credit Partners, L.P.(16)
|
|
|
397,191
|
|
|
|
397,191
|
|
|
|
|
|
|
|
*
|
|
Citadel Securities LLC(17)
|
|
|
333,458
|
|
|
|
333,458
|
|
|
|
|
|
|
|
*
|
|
Concerto Credit Opportunity Master Fund I, LP(18)
|
|
|
10,500
|
|
|
|
10,500
|
|
|
|
|
|
|
|
*
|
|
CQS Convertible and Quantitative Strategies Master
Fund Limited(19)
|
|
|
178,085
|
|
|
|
178,085
|
|
|
|
|
|
|
|
*
|
|
CQS Directional Opportunities Master Fund Limited(19)
|
|
|
1,143,551
|
|
|
|
1,143,551
|
|
|
|
|
|
|
|
*
|
|
Crescent 1, L.P.(20)
|
|
|
811,893
|
|
|
|
811,893
|
|
|
|
|
|
|
|
*
|
|
CRS Fund, Ltd.(20)
|
|
|
852,494
|
|
|
|
852,494
|
|
|
|
|
|
|
|
*
|
|
Cumber International S.A.(21)
|
|
|
34,940
|
|
|
|
34,940
|
|
|
|
|
|
|
|
*
|
|
Cumberland Benchmarked Partners, L.P.(21)
|
|
|
116,211
|
|
|
|
116,211
|
|
|
|
|
|
|
|
*
|
|
Cumberland Partners(21)
|
|
|
270,529
|
|
|
|
270,529
|
|
|
|
|
|
|
|
*
|
|
Cyrus Europe Master Fund, Ltd.(20)
|
|
|
40,593
|
|
|
|
40,593
|
|
|
|
|
|
|
|
*
|
|
Cyrus Opportunities Master Fund II, Ltd.(20)
|
|
|
1,974,958
|
|
|
|
1,974,958
|
|
|
|
|
|
|
|
*
|
|
24
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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
|
|
Cyrus Select Opportunities Master Fund, Ltd.(20)
|
|
|
405,948
|
|
|
|
405,948
|
|
|
|
|
|
|
|
*
|
|
Davidson Kempner(22)
|
|
|
1,494,744
|
|
|
|
1,494,744
|
|
|
|
|
|
|
|
*
|
|
dbX-Risk Arbitrage 4 Fund(23)
|
|
|
29,720
|
|
|
|
29,720
|
|
|
|
|
|
|
|
*
|
|
Deutsche Bank Securities Inc.(24)
|
|
|
1,688,354
|
|
|
|
1,688,354
|
|
|
|
|
|
|
|
*
|
|
Double Black Diamond Offshore Ltd.(8)
|
|
|
457,510
|
|
|
|
457,510
|
|
|
|
|
|
|
|
*
|
|
DWS Dreman Value Income Edge Fund(25)
|
|
|
75,000
|
|
|
|
75,000
|
|
|
|
|
|
|
|
*
|
|
Elliott International, L.P.(26)
|
|
|
89,357
|
|
|
|
89,357
|
|
|
|
|
|
|
|
*
|
|
Ermitage Selz Fund Limited
|
|
|
46,000
|
|
|
|
46,000
|
|
|
|
|
|
|
|
*
|
|
ES Moore, Ltd.
|
|
|
144,245
|
|
|
|
120,000
|
|
|
|
24,245
|
|
|
|
*
|
|
Evolution Master Fund Ltd. SPC, Segregated Portfolio M(27)
|
|
|
24,981
|
|
|
|
24,981
|
|
|
|
|
|
|
|
*
|
|
Future Fund Board of Guardians(28)
|
|
|
67,249
|
|
|
|
67,249
|
|
|
|
|
|
|
|
*
|
|
Gam Selection Hedge Investments Inc.
|
|
|
27,000
|
|
|
|
27,000
|
|
|
|
|
|
|
|
*
|
|
GLG North American Opportunity Fund
|
|
|
120,000
|
|
|
|
120,000
|
|
|
|
|
|
|
|
*
|
|
GMAM Investment Funds Trust #7MS7(7)
|
|
|
209,306
|
|
|
|
195,092
|
|
|
|
14,214
|
|
|
|
*
|
|
GMO Mean Reversion Fund (Onshore), a Series of GMO Master
Portfolios (Onshore) LP(29)
|
|
|
73,987
|
|
|
|
69,000
|
|
|
|
4,987
|
|
|
|
*
|
|
Goldman, Sachs & Co.(30)
|
|
|
1,515,685
|
|
|
|
1,515,685
|
|
|
|
|
|
|
|
*
|
|
Great Oaks Strategic Investment Partners, LP(31)
|
|
|
4,080
|
|
|
|
4,080
|
|
|
|
|
|
|
|
*
|
|
GSO Special Situations Fund LP(32)
|
|
|
748,910
|
|
|
|
748,910
|
|
|
|
|
|
|
|
*
|
|
GSO Special Situations Overseas Master Fund(32)
|
|
|
646,712
|
|
|
|
646,712
|
|
|
|
|
|
|
|
*
|
|
Guggenheim Portfolio Company X, LLC(33)
|
|
|
19,382
|
|
|
|
19,382
|
|
|
|
|
|
|
|
*
|
|
HFR ED Brownstone Discovery 2x Master Trust (A Bermuda Unit
Trust)
|
|
|
5,900
|
|
|
|
5,900
|
|
|
|
|
|
|
|
*
|
|
HFR ED Discovery Master Trust (A Bermuda Unit Trust)
|
|
|
10,600
|
|
|
|
10,600
|
|
|
|
|
|
|
|
*
|
|
HFR RVA Advent Global Opportunity Master Trust(34)
|
|
|
36,462
|
|
|
|
33,447
|
|
|
|
3,015
|
|
|
|
*
|
|
IAM Mini-Fund 21 Limited
|
|
|
5,561
|
|
|
|
5,561
|
|
|
|
|
|
|
|
*
|
|
ICS Opportunities, Ltd.(35)
|
|
|
130,347
|
|
|
|
130,347
|
|
|
|
|
|
|
|
*
|
|
ING Investors Trust on behalf of its Series ING Janus
Contrarian Portfolio(36)
|
|
|
187,515
|
|
|
|
187,515
|
|
|
|
|
|
|
|
*
|
|
Institutional Benchmark Series (Master Feeder) Ltd, in Respect
of Brownstone Credit Opportunities Series
|
|
|
13,300
|
|
|
|
13,300
|
|
|
|
|
|
|
|
*
|
|
Jabre Capital Partners S.A. for and on behalf of: JABCAP Global
Balanced Master Fund Limited JABCAP (LUX)
Global Balanced Lexicon Fund(37)
|
|
|
150,000
|
|
|
|
150,000
|
|
|
|
|
|
|
|
*
|
|
Janus Capital Funds P.L.C. on behalf of its sub fund Janus
US High Yield Fund(38)
|
|
|
226,008
|
|
|
|
165,192
|
|
|
|
60,816
|
|
|
|
*
|
|
25
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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
|
|
Janus Investment Fund on behalf of its series Janus
Contrarian Fund(39)
|
|
|
714,355
|
|
|
|
714,355
|
|
|
|
|
|
|
|
*
|
|
Janus Investment Fund on behalf of its series Janus
High-Yield Fund(38)
|
|
|
302,668
|
|
|
|
221,223
|
|
|
|
81,445
|
|
|
|
*
|
|
Janus Investment Fund on behalf of its series Janus
Long/Short Fund(39)
|
|
|
21,415
|
|
|
|
21,415
|
|
|
|
|
|
|
|
*
|
|
Juggernaut Fund, L.P.(40)
|
|
|
22,900
|
|
|
|
22,900
|
|
|
|
|
|
|
|
*
|
|
Karnak Partners, L.P.
|
|
|
47,000
|
|
|
|
47,000
|
|
|
|
|
|
|
|
*
|
|
Karsch Capital II, LP(41)
|
|
|
57,650
|
|
|
|
57,650
|
|
|
|
|
|
|
|
*
|
|
Karsch Capital II, Ltd.(41)
|
|
|
29,530
|
|
|
|
29,530
|
|
|
|
|
|
|
|
*
|
|
Karsch Capital, Ltd.(41)
|
|
|
130,860
|
|
|
|
130,860
|
|
|
|
|
|
|
|
*
|
|
KCM Plus, Ltd.(41)
|
|
|
36,960
|
|
|
|
36,960
|
|
|
|
|
|
|
|
*
|
|
Kivu Investment Fund Limited(19)
|
|
|
465,562
|
|
|
|
465,562
|
|
|
|
|
|
|
|
*
|
|
L-3 Communications Corporation Master Trust(7)
|
|
|
15,034
|
|
|
|
14,014
|
|
|
|
1,020
|
|
|
|
*
|
|
Lerner Enterprises, LLC(28)
|
|
|
9,896
|
|
|
|
9,896
|
|
|
|
|
|
|
|
*
|
|
LMA SPC for and on behalf of the MAP89 Segregated Portfolio(42)
|
|
|
32,870
|
|
|
|
32,870
|
|
|
|
|
|
|
|
*
|
|
Locust Wood Capital L.P.
|
|
|
105,000
|
|
|
|
105,000
|
|
|
|
|
|
|
|
*
|
|
LongView Partners B, L.P.(21)
|
|
|
85,295
|
|
|
|
85,295
|
|
|
|
|
|
|
|
*
|
|
Louisiana State Employees Retirement System(7)
|
|
|
86,941
|
|
|
|
81,038
|
|
|
|
5,903
|
|
|
|
*
|
|
Mariner LDC (13)(43)
|
|
|
436,492
|
|
|
|
436,492
|
|
|
|
|
|
|
|
*
|
|
Mariner-Tricadia Credit Strategies Master Fund Ltd(44)
|
|
|
85,000
|
|
|
|
85,000
|
|
|
|
|
|
|
|
*
|
|
Mason Capital L.P.(33)
|
|
|
588,612
|
|
|
|
588,612
|
|
|
|
|
|
|
|
*
|
|
Mason Capital Master Fund, L.P.(33)
|
|
|
1,689,893
|
|
|
|
1,689,893
|
|
|
|
|
|
|
|
*
|
|
Merced Partners II, L.P.(45)
|
|
|
127,715
|
|
|
|
116,533
|
|
|
|
11,182
|
|
|
|
*
|
|
Merced Partners Limited Partnership(46)
|
|
|
263,081
|
|
|
|
251,442
|
|
|
|
11,639
|
|
|
|
*
|
|
Monarch Capital Master Partners II-A LP(47)
|
|
|
18,019
|
|
|
|
18,019
|
|
|
|
|
|
|
|
*
|
|
Monarch Capital Master Partners LP(47)
|
|
|
51,665
|
|
|
|
51,665
|
|
|
|
|
|
|
|
*
|
|
Monarch Cayman Fund Limited(47)
|
|
|
8,773
|
|
|
|
8,773
|
|
|
|
|
|
|
|
*
|
|
Monarch Debt Recovery Master Fund Ltd(47)
|
|
|
87,116
|
|
|
|
87,116
|
|
|
|
|
|
|
|
*
|
|
Monarch Master Funding Ltd(47)
|
|
|
4,113,510
|
|
|
|
4,113,510
|
|
|
|
|
|
|
|
*
|
|
Monarch Opportunities Master Fund Ltd(47)
|
|
|
62,601
|
|
|
|
62,601
|
|
|
|
|
|
|
|
*
|
|
Montgomery County Employees Retirement System(7)
|
|
|
12,876
|
|
|
|
12,002
|
|
|
|
874
|
|
|
|
*
|
|
Moore Macro Fund, LP
|
|
|
550,755
|
|
|
|
480,000
|
|
|
|
70,755
|
|
|
|
*
|
|
Morgan Stanley & Co. Incorporated(48)
|
|
|
1,187,007
|
|
|
|
1,185,245
|
|
|
|
1,762
|
|
|
|
*
|
|
NewFinance Alden SPV(3)
|
|
|
68,842
|
|
|
|
68,842
|
|
|
|
|
|
|
|
*
|
|
Nomura Corporate Research and Asset Management Inc.(49)
|
|
|
12,876
|
|
|
|
12,002
|
|
|
|
874
|
|
|
|
*
|
|
Nomura Funds Ireland US High Yield Bond Fund(7)
|
|
|
13,960
|
|
|
|
13,013
|
|
|
|
947
|
|
|
|
*
|
|
26
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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
|
|
Nomura US Attractive Yield Corporate Bond Fund Mother
Fund(7)
|
|
|
176,265
|
|
|
|
164,294
|
|
|
|
11,971
|
|
|
|
*
|
|
Nomura Waterstone Market Neutral Fund
|
|
|
880
|
|
|
|
880
|
|
|
|
|
|
|
|
*
|
|
Oak Hill Credit Opportunities Financing, LTD(28)
|
|
|
156,716
|
|
|
|
156,716
|
|
|
|
|
|
|
|
*
|
|
Oakford MF Limited(47)
|
|
|
8,048
|
|
|
|
8,048
|
|
|
|
|
|
|
|
*
|
|
OHA Strategic Credit Master Fund II, L.P.(28)
|
|
|
150,863
|
|
|
|
150,863
|
|
|
|
|
|
|
|
*
|
|
OHA Strategic Credit Master Fund, L.P.(28)
|
|
|
520,301
|
|
|
|
520,301
|
|
|
|
|
|
|
|
*
|
|
OHSF II Financing, LTD(28)
|
|
|
264,435
|
|
|
|
264,435
|
|
|
|
|
|
|
|
*
|
|
One East Partners Master LP(50)
|
|
|
160,030
|
|
|
|
160,030
|
|
|
|
|
|
|
|
*
|
|
Para Partners, L.P.(23)
|
|
|
70,280
|
|
|
|
70,280
|
|
|
|
|
|
|
|
*
|
|
Permal Stone Lion Fund Ltd.(51)
|
|
|
2,133
|
|
|
|
2,133
|
|
|
|
|
|
|
|
*
|
|
Pines Edge Value Investors Ltd.(42)
|
|
|
51,930
|
|
|
|
51,930
|
|
|
|
|
|
|
|
*
|
|
Plainfield Special Situations Master Fund II Limited(52)
|
|
|
95,797
|
|
|
|
74,150
|
|
|
|
21,647
|
|
|
|
*
|
|
Prime Capital Master SPC GOT WAT MAC Segregated
Portfolio
|
|
|
3,821
|
|
|
|
3,821
|
|
|
|
|
|
|
|
*
|
|
Quad Capital, LLC(53)
|
|
|
81,400
|
|
|
|
81,400
|
|
|
|
|
|
|
|
*
|
|
Quintessence Fund L.P.(54)
|
|
|
27,092
|
|
|
|
25,628
|
|
|
|
1,464
|
|
|
|
*
|
|
QVT Fund LP(54)
|
|
|
246,766
|
|
|
|
233,431
|
|
|
|
13,335
|
|
|
|
*
|
|
Riva Ridge Master Fund, Ltd.(43)
|
|
|
231,043
|
|
|
|
231,043
|
|
|
|
|
|
|
|
*
|
|
Sagittarius Fund(7)
|
|
|
5,365
|
|
|
|
5,001
|
|
|
|
364
|
|
|
|
*
|
|
Seaport Group LLC Profit Sharing Plan(55)
|
|
|
200,507
|
|
|
|
200,507
|
|
|
|
|
|
|
|
*
|
|
Selz Family Trust
|
|
|
30,000
|
|
|
|
20,000
|
|
|
|
10,000
|
|
|
|
*
|
|
Seneca Capital, LP(56)
|
|
|
462,322
|
|
|
|
462,322
|
|
|
|
|
|
|
|
*
|
|
Silver Point Capital Fund, LP(57)
|
|
|
851,884
|
|
|
|
851,884
|
|
|
|
|
|
|
|
*
|
|
Silver Point Capital Offshore Master Fund, LP(57)
|
|
|
2,047,278
|
|
|
|
2,047,278
|
|
|
|
|
|
|
|
*
|
|
Sola Ltd.(58)
|
|
|
1,807,759
|
|
|
|
1,579,546
|
|
|
|
228,213
|
|
|
|
*
|
|
Solus Core Opportunities Master Fund Ltd.(58)
|
|
|
290,257
|
|
|
|
290,257
|
|
|
|
|
|
|
|
*
|
|
Spectrum Investment Partners International Ltd.(59)
|
|
|
518,522
|
|
|
|
518,522
|
|
|
|
|
|
|
|
*
|
|
Spectrum Investment Partners LP(59)
|
|
|
242,396
|
|
|
|
242,396
|
|
|
|
|
|
|
|
*
|
|
Stark Criterion Master Fund Ltd.(60)
|
|
|
124,728
|
|
|
|
124,728
|
|
|
|
|
|
|
|
*
|
|
Stark Master Fund Ltd.(61)
|
|
|
2,369,277
|
|
|
|
2,369,277
|
|
|
|
|
|
|
|
*
|
|
Stichting Pensioenfonds Hoogovens(7)
|
|
|
19,315
|
|
|
|
18,003
|
|
|
|
1,312
|
|
|
|
*
|
|
Stone Lion Portfolio L.P.(51)
|
|
|
22,867
|
|
|
|
22,867
|
|
|
|
|
|
|
|
*
|
|
Stonehill Institutional Partners, L.P.(62)
|
|
|
125,451
|
|
|
|
106,315
|
|
|
|
19,136
|
|
|
|
*
|
|
Stonehill Master Fund Ltd.(63)
|
|
|
263,124
|
|
|
|
224,586
|
|
|
|
38,538
|
|
|
|
*
|
|
Structured Credit Opportunities Fund II, LP(44)
|
|
|
15,000
|
|
|
|
15,000
|
|
|
|
|
|
|
|
*
|
|
Suttonbrook Capital Portfolio LP(64)
|
|
|
22,082
|
|
|
|
22,082
|
|
|
|
|
|
|
|
*
|
|
27
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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
|
|
Suttonbrook Eureka Fund LP(64)
|
|
|
3,345
|
|
|
|
3,345
|
|
|
|
|
|
|
|
*
|
|
The Advent Global Opportunity Master Fund(34)
|
|
|
28,946
|
|
|
|
26,566
|
|
|
|
2,380
|
|
|
|
*
|
|
The GM Canada Domestic Trust(7)
|
|
|
107,306
|
|
|
|
100,019
|
|
|
|
7,287
|
|
|
|
*
|
|
The Liverpool Limited Partnership(26)
|
|
|
59,572
|
|
|
|
59,572
|
|
|
|
|
|
|
|
*
|
|
The Regents of the University of California(7)
|
|
|
45,716
|
|
|
|
45,351
|
|
|
|
365
|
|
|
|
*
|
|
UBS Securities, LLC(65)
|
|
|
1,144,429
|
|
|
|
1,144,429
|
|
|
|
|
|
|
|
*
|
|
Venor Capital Master Fund Ltd.(66)
|
|
|
203,475
|
|
|
|
203,475
|
|
|
|
|
|
|
|
*
|
|
Verition Multi-Strategy Master Fund Ltd.(67)
|
|
|
339,668
|
|
|
|
325,093
|
|
|
|
14,575
|
|
|
|
*
|
|
VSO Master Fund, Ltd.(68)
|
|
|
50,049
|
|
|
|
45,003
|
|
|
|
5,046
|
|
|
|
*
|
|
Waterstone Market Neutral MAC 51, Ltd.
|
|
|
14,882
|
|
|
|
14,882
|
|
|
|
|
|
|
|
*
|
|
Waterstone Market Neutral Master Fund, Ltd.
|
|
|
121,656
|
|
|
|
121,656
|
|
|
|
|
|
|
|
*
|
|
Waterstone MF Fund, Ltd.
|
|
|
23,223
|
|
|
|
23,223
|
|
|
|
|
|
|
|
*
|
|
Wellspring Capital, LP(9)
|
|
|
20,000
|
|
|
|
20,000
|
|
|
|
|
|
|
|
*
|
|
Whitebox Credit Arbitrage Partners, LP(69)
|
|
|
183,982
|
|
|
|
183,982
|
|
|
|
|
|
|
|
*
|
|
Whitebox Multi-Strategy Partners, LP(70)
|
|
|
144,325
|
|
|
|
144,325
|
|
|
|
|
|
|
|
*
|
|
Windmill Master Fund LP(40)
|
|
|
37,100
|
|
|
|
37,100
|
|
|
|
|
|
|
|
*
|
|
|
|
|
*
|
|
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.
|
|
(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)
|
|
Allen Investment Management LLC is
the investment manager for Allen Global Partners LP (formerly
Allen Arbitrage LP) and Allen Global Partners Offshore (formerly
Allen Arbitrage Offshore and, together with Allen Global
Partners LP, the Allen Funds). Allen Global Partners
LLC, a wholly-owned subsidiary of Allen Operations LLC is the
general partner of Allen Global Partners LP. Allen Global
Partners Offshore is a Class of the Allen Series Trust, a
Cayman Islands unit trust established by a Declaration of Trust
by Caledonian Trust (Cayman) Limited. Allen Investment
Management LLC, Allen Global Partners LP. and Allen Global
Partners Offshore may be deemed to beneficially own the
securities held by the Allen Funds. Allen Investment Management
LLC, Allen Global Partners LLC and Allen Operations LLC each
disclaim beneficial ownership of such securities, if any, except
to the extent of their pecuniary interests therein, as
applicable.
|
|
(5)
|
|
Includes 91,285 shares
underlying warrants to purchase shares of our common stock.
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
|
28
|
|
|
|
|
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 Yield Opportunity Strategic
Fund, Ltd., California Public Employees Retirement System, GMAM
Investment Funds 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.
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(8)
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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.
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(9)
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Wellspring Management L.L.C. is the
investment manager for Wellspring Capital L.P. and Blackwell
Partners, L.L.C. The managing members of Wellspring Management
L.L.C. are George M. White and Robert Chad Gilliland. Wellspring
Management L.L.C. and each of the Wellspring Managers may be
deemed to beneficially own the securities held by the Wellspring
Funds. Wellspring Management L.L.C. and each of the Wellspring
Managers each disclaim beneficial ownership of such securities
except to the extent of their pecuniary interests therein.
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(10)
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Securities are held by Blue
Mountain Credit Alternatives Master Fund, L.P.
(BMCA), BlueMountain Timberline Ltd.
(BMT), BlueMountain Long/Short Credit Master Fund,
L.P. (LSCF), and BlueMountain Equity Alternatives
Master Fund, L.P. (BMEA) (BMCA, BMT, LSCF, and BMEA,
collectively, the BlueMountain Funds). BlueMountain
CA Master Fund GP, Ltd. (BMCAGP) is the general
partner of BMCA; BlueMountain Long/Short Credit GP, LLC
(BMLSGP) is the general partner of BMLS; and
BlueMountain Equity GP, LLC (BMEAGP) is the general
partner of BMEA. Blue Mountain Credit GP, LLC
(BMCGP) is the sole owner of BMCAGP. BlueMountain GP
Holdings, LLC (BMGPH) owns 100% of the units of
BMCGP, BMLSGP, and BMEAGP. BlueMountain Capital Management, LLC
(BMCM) is the investment manager of each of the
BlueMountain Funds. Andrew Feldstein is the managing member of
both BMCM and BMGPH. BMCM, BMCAGP, BMLSGP, BMEAGP, BMCGP, BMGPH,
and Andrew Feldstein may be deemed to own beneficially the
securities held by the BlueMountain Funds. BMCM, BMCAGP, BMLSGP,
BMEAGP, BMCGP, BMGPH, and Andrew Feldstein each disclaim
beneficial ownership of such securities except to the extent of
their pecuniary interests therein.
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(11)
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Includes 34,648 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.
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(12)
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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.
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(13)
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Mariner Investment Group, LLC
(MIG) serves as investment manager to Mariner LDC
(LDC), Caspian Capital Partners, L.P.
(Caspian) and Caspian Select Credit Master Fund,
Ltd. (Select and, together with LDC and Caspian, the
Mariner Funds). Mariner LDCs shares include
61,503 shares underlying warrants to purchase shares of our
common stock. Caspians shares include 33,524 shares
underlying warrants to purchase shares of our common stock.
Selects shares include 50,606 shares underlying
warrants to purchase shares of our common stock. MIG is wholly
owned by MIG Holdings, LLC (MIG Holdings), which is
owned by Mariner Partners, Inc. (MPI), of which
William Michaelcheck (WM) is majority holder. MIG,
MIG Holdings, MPI and WM may be deemed to beneficially own the
securities held by the Mariner Funds. MIG, MIG Holdings, MPI and
WM each disclaim beneficial ownership of such securities except
to the extent of their pecuniary interests therein.
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(14)
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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.
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(15)
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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.
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(16)
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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
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29
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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.
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(17)
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Consists of 333,458 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.
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(18)
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Concerto Asset Management, LLC is
the investment manager for Concerto Credit Opportunity Master
Fund I, LP.
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(19)
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CQS Directional Opportunities
Master Fund Limited, CQS Convertible and Quantitative
Strategies 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.
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(20)
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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.
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(21)
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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.
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(22)
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Includes 139,925 shares
underlying warrants to purchase shares of our common stock.
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 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.
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(23)
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Para Advisors LLC (Para
Advisors) is the investment manager for Para Partners,
L.P. (Para Partners) and the trading advisor for
dbX-Risk Arbitrage Fund 4 Fund (the dbX-Risk
Arbitrage Fund and together with Para Partners, the
Para Funds). Mr. Ned Sadaka is the manager of
Para Advisors and also serves as the managing member of the
general partner of Para Partners. Para Advisors and
Mr. Sadaka may be deemed to beneficially own the securities
held by the Para Funds. Para Advisors and Mr. Sadaka each
disclaim beneficial ownership of such securities except to the
extent of their pecuniary interests therein.
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(24)
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Consists of 1,688,354 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.
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(25)
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Dreman Value Management, LLC is the
sub-advised
investment manager for DWS Dreman Value Income Edge Fund. DWS
Investments, a subsidiary of Deutsche Bank, is the advisor and
responsible for voting on behalf of the fund. Dreman Value
Management and DWS Investments may be deemed to beneficially own
the securities held by DWS Dreman Value Income Edge Fund. Dreman
Value Management and DWS Investments 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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Consists of 59,572 shares held
by The Liverpool Limited Partnership (Liverpool)
including 24,615 shares underlying warrants to purchase
shares of our common stock and 89,357 shares held by
Elliott International, L.P. (Elliott LP), including
36,922 shares underlying warrants to purchase shares of our
common stock. Liverpool is a wholly-owned subsidiary of Elliott
Associates, L.P., a Delaware limited partnership (Elliott
Associates). Hambledon, Inc., a Cayman Islands corporation
controlled by Paul E. Singer (Mr. Singer) is
the sole general partner of Elliott LP. In addition, Elliott
International Capital Advisors Inc., the investment manager of
Elliott LP, which is controlled by Mr. Singer, has shared
power with Elliott LP to vote and dispose of the shares owned by
Elliott LP.
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30
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Mr. Singer, Elliott Capital
Advisors, L.P., a Delaware limited partnership which is
controlled by Mr. Singer, and Elliott Special GP, LLC, a
Delaware limited liability company which is controlled by
Mr. Singer, are the general partners of Elliott Associates.
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(27)
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Evolution Capital Management LLC
(ECMLLC) is the investment manager for Evolution
Master Fund Ltd. SPC, Segregated Portfolio M (M
Fund). M Fund is the beneficial owner of the registrable
securities. ECMLLC disclaims beneficial ownership of such
securities except to the extent of its pecuniary interests
therein.
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(28)
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Oak Hill Advisors, L.P.
(OHA) is the investment manager for Future
Fund Board of Guardians, Lerner Enterprises, LLC, Oak Hill
Credit Opportunities Financing, Ltd., OHA Strategic Credit
Master Fund, L.P., OHA Strategic Credit Master Fund II,
L.P. and OHSF II Financing Ltd. (the Oak Hill
Funds). Future Fund Board of Guardians shares
include 6,275 shares underlying warrants to purchase shares
of our common stock. Lerner Enterprises, LLCs shares
include 571 shares underlying warrants to purchase shares
of our common stock. Oak Hill Credit Opportunities Financing,
Ltd.s shares include 12,894 shares underlying
warrants to purchase shares of our common stock. OHA Strategic
Credit Master Fund, L.P.s shares include
39,024 shares underlying warrants to purchase shares of our
common stock. OHA Strategic Credit Master Fund II,
L.P.s shares include 11,182 shares underlying
warrants to purchase shares of our common stock. OHSF II
Financing Ltd.s shares include 21,337 shares
underlying warrants to purchase shares of our common stock. 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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(29)
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Includes 3,029 shares
underlying warrants to purchase shares of our common stock.
Grantham, Mayo, Van Otterloo & Co. LLC
(GMO) is the investment manager for GMO Mean
Reversion Fund (Onshore), a series of GMO Master Portfolios
(Onshore), L.P. (the Reversion Fund). GMO Investment
Partners LLC (GMOIP) is the general partner of GMO
Master Portfolios (Onshore), L.P., and GMO serves as managing
member of GMOIP. GMO and GMOIP are not the selling security
holder and each of GMO and GMOIP disclaim beneficial ownership
of such securities held by the Reversion Fund.
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(30)
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Includes 415,198 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 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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(31)
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Great Oaks Capital Management, LLC,
is the investment manager for Great Oaks Strategic Investment
Partners, LP. Andrew K. Boszhardt, Jr. is the general partner
and managing partner of Great Oaks Strategic Investment
Partners, L.P.
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(32)
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GSO Capital Partners LP is the
investment manager of GSO Special Situations Fund LP and
GSO Special Situations Overseas Master Fund Ltd. GSO
Advisor Holdings L.L.C. is the general partner of GSO Capital
Partners LP. Blackstone Holdings I L.P. is the sole member of
GSO Advisor Holdings L.L.C. Blackstone Holdings I/II GP Inc. is
the general partner of Blackstone Holdings I L.P. The Blackstone
Group L.P. is the sole shareholder of Blackstone Holdings I/II
GP Inc. Blackstone Group Management L.L.C. is the general
partner of The Blackstone Group L.P. Stephen A. Schwarzman is
the founding member of Blackstone Group Management L.L.C. In
addition, each of Bennett J. Goodman, J. Albert Smith III
and Douglas I. Ostrover serves as an executive of GSO Capital
Partners LP. Each of the above, other than GSO Special
Situations Fund LP and GSO Special Situations Overseas
Master Fund Ltd., disclaims beneficial ownership of the
shares held by each of GSO Special Situations Fund LP and
GSO Special Situations Overseas Master Fund Ltd., except to the
extent of such partys pecuniary interest therein. Each
selling stockholder is an affiliate of a
broker-dealer and has certified that it bought the securities in
the ordinary course of business, and at the time of the purchase
of the securities to be resold, it had no agreements or
understandings, directly or indirectly, with any person to
distribute the securities.
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(33)
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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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(34)
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HFR RVA Advent Global Opportunity
Master Trusts shares include 351 shares underlying
warrants to purchase shares of our common stock. The Advent
Global Opportunity Master Funds shares include
270 shares underlying warrants to purchase shares of our
common stock. Advent Capital Management, LLC is the investment
manager for The Advent Global Opportunity Master Fund. Advent
Capital Management, LLC disclaims beneficial ownership of such
securities except to the extent of their pecuniary interests
therein.
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(35)
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Millennium International Management
LP, a Delaware limited partnership (Millennium
International Management), is the investment manager to
ICS Opportunities, Ltd., an exempted limited company organized
under the laws of the Cayman Islands (ICS
Opportunities), and may be deemed to have shared voting
control and investment discretion over securities owned by ICS
Opportunities. Millennium International Management GP LLC, a
Delaware limited liability company (Millennium
International Management GP), is the general partner of
Millennium International Management and may also be deemed to
have shared voting control and investment discretion over
securities owned by ICS Opportunities. Millennium Management
LLC, a Delaware limited liability company (Millennium
Management), is the general partner of the 100%
shareholder of ICS Opportunities and may be deemed to have
shared voting control and investment discretion over securities
owned by ICS Opportunities. Israel A. Englander, a United States
citizen, is the managing member of
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31
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Millennium International Management
GP and of Millennium Management and consequently may also be
deemed to have shared voting control and investment discretion
over securities owned by ICS Opportunities.
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(36)
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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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(37)
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Jabre Capital Partners S.A. is the
investment manager of: JABCAP Global Balanced Master Fund
Limited, JABCAP (LUX) Global Balanced and Lexicon Fund.
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(38)
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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. Janus Capital
Management LLC (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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(39)
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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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(40)
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Duquesne Capital Management, LLC
may be deemed to beneficially own such securities by virtue of
its position as investment manager of Windmill Master
Fund LP and Juggernaut Fund, L.P.
Stanley F. Druckenmiller may be deemed to beneficially
own such securities by virtue of his position as managing member
of Duquesne Capital and as managing member of Duquesne Holdings,
LLC (General Partner). Duquesne Capital, Duquesne Holdings, and
Mr. Druckenmiller each disclaim beneficial ownership of
such securities except to the extent of their pecuniary
interests therein.
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(41)
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Karsch Capital Management, LP is an
SEC registered investment advisor (KCM) and acts as
the investment manager for Karsch Capital Ltd., Karsch Capital
II, Ltd and KCM Plus, Ltd. Karsch Associates, LLC, the general
partner of Karsch Capital II, LP, has delegated investment
management functions to KCM.
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(42)
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Pine River Capital Management L.P.
(PRCM LP) is the investment manager of LMA SPC for
and on behalf of the MAP89 Segregated Portfolio and Pines Edge
Value Investors Ltd. (the Pine River Funds). Pine
River Capital Management LLC (PRCM LLC) is the
general partner of PRCM LP. The sole managing member of PRCM LLC
is Brian Taylor. PRCM LP, PRCM LLC and Brian Taylor may be
deemed to beneficially own the securities held by the Pine River
Funds. PRCM LP, PRCM LLC and Brian Taylor 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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Riva Ridge Capital Management L.P.
(RRCM) serves as (i) investment manager to Riva
Ridge Master Fund, Ltd. (Riva Ridge) and
(ii) sub-advisor
to Mariner Investment Group, LLC, who is investment manager to
Mariner LDC (LDC and, together with Riva Ridge, the
RRCM Funds). LDCs shares include
61,503 shares underlying warrants to purchase shares of our
common stock. Riva Ridge GP LLC, GP (Riva GP) is the
general partner to RRCM. The managing members of Riva GP are
Stephen Golden and James Shim (collectively the Riva
Managers). RRCM, Riva GP and each of the Riva Managers may
be deemed to beneficially own the securities held by the RRCM
Funds. RRCM, Riva GP and each of the Riva Managers each disclaim
beneficial ownership of such securities except to the extent of
their pecuniary interests therein.
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(44)
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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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(45)
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Includes 11,182 shares
underlying warrants to purchase shares of our common stock.
EBF & Associates, L.P. (EBF) is the
investment adviser to Merced Partners II, L.P. (Merced
II). Lydiard Partners, L.P. (Lydiard) is the
general partner of Merced II, and Tanglewood Capital
Management, L.P. (TCM) is the general partner of
Lydiard. Global Capital Management, Inc. (GCM) is
the general partner of EBF. Michael J. Frey is the majority
owner of EBF and sole owner, Chairman and CEO of GCM and TCM.
EBF, GCM, Lydiard, TCM, and Michael J. Frey may be deemed to
beneficially own the securities held by Merced II. EBF, GCM,
Lydiard, TCM, and Michael J. Frey each disclaim beneficial
ownership of such securities except to the extent of their
pecuniary interest therein.
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(46)
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Includes 11,639 shares
underlying warrants to purchase shares of our common stock. EBF
is the investment adviser to Merced Partners Limited Partnership
(Merced LP). EBF and GCM are the co-general partners
of the Merced LP, and GCM is the general partner of EBF. Michael
J. Frey is the majority owner of EBF and the majority owner,
Chairman and CEO of GCM. EBF, GCM, and Michael J. Frey may be
deemed to beneficially own the securities held by the Merced LP.
EBF, GCM, and Michael J. Frey each disclaim beneficial ownership
of such securities except to the extent of their pecuniary
interest therein.
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(47)
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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
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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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(48)
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Shares to be registered consist of
1,185,245 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. Morgan Stanley & Co.
Incorporated is widely held and a reporting company under the
Exchange Act.
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(49)
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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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(50)
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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 Jim Cacioppo may be deemed to beneficially
own the securities held by the One East Partners Master LP. One
East Partners Capital Management LLC and Jim Cacioppo each
disclaim beneficial ownership of such securities except to the
extent of their pecuniary interests therein.
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(51)
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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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(52)
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Plainfield Asset Management LLC
(Plainfield Asset Management) is the investment
manager of Plainfield Special Situations Master Fund II
Limited (Plainfield Master Fund II), Plainfield
OC Master Fund Limited (Plainfield OC Fund) and
Plainfield Liquid Strategies Master Fund Limited
(Plainfield Liquid Fund), each a private investment
vehicle. Max Holmes, an individual, is the chief investment
officer of Plainfield Asset Management. Max Holmes, Plainfield
Asset Management, Plainfield Master Fund II, Plainfield OC
Fund and Plainfield Liquid Fund are referred to collectively as
the Plainfield Persons. The Plainfield Persons own
an aggregate of 98,436 shares, of which 98,416 shares
are also registrable securities, and warrants convertible into
24,412 shares of our common stock. Plainfield Master
Fund II directly owns 74,150 registrable securities and
warrants convertible into 21,647 shares of our common
stock. Plainfield OC Fund directly owns 20,222 registrable
securities and warrants convertible into 2,734 shares of
our common stock. Plainfield Liquid Fund directly owns 4,044
registrable securities. Max Holmes owns 20 shares, none of
which are registrable securities, and warrants convertible into
31 shares of our common stock. Each of the Plainfield
Persons disclaims beneficial ownership of all securities
described above for which it is not the record owner, and this
description shall not be deemed an admission that any of the
Plainfield Persons is a beneficial owner of the securities for
purposes of Section 16 of the Exchange Act or except to the
extent of their pecuniary interest therein.
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(53)
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Quad Capital LLCs current
holdings consist of 81,400 shares of common stock, held at
its clearing firm, Goldman Sachs. Quad Capital LLC is a
registered-broker dealer operating under a JBO with Goldman
Sachs. It is aware that under certain readings, it may be deemed
to be an underwriter. The shares of common stock held by Quad
Capital LLC were acquired in the ordinary course of its
proprietary trading business, and since it has no customers or
beneficial owners for these shares, but rather owns them in its
own account solely, cannot utilize them for the purpose of
resale or distribution as those activities are understood in
this context. Quad Capital LLC has not participated in the
distribution of the shares on behalf of the issuer. Quad is a
privately held company that reports monthly via the FOCUS system
to the USSEC.
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(54)
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QVT Financial LP is the investment
manager for Quintessence Fund L.P. and QVT Fund LP and
shares voting and investment control over the securities held by
Quintessence Fund L.P. and QVT Fund LP. QVT Financial
GP LLC is the general partner of QVT Financial LP and as such
has complete discretion in the management and control of the
business affairs of QVT Financial LP. QVT Associates GP LLC is
the general partner of Quintessence Fund L.P. and QVT
Fund LP and may be deemed to beneficially own the
securities held by Quintessence Fund L.P. and QVT Fund LP.
The managing members of QVT Associates GP LLC are Daniel Gold,
Nicholas Brumm, Arthur Chu and Tracy Fu. Each of QVT Financial
LP, QVT Financial GP LLC, Daniel Gold, Nicholas Brumm, Arthur
Chu and Tracy Fu disclaims beneficial ownership of the
securities held by Quintessence Fund L.P. and QVT
Fund LP. QVT Associates GP LLC disclaims beneficial
ownership of the securities held by Quintessence Fund L.P.
and QVT Fund LP, except to the extent of its pecuniary
interest therein.
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(55)
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Includes 28,526 shares
underlying warrants to purchase shares of our common stock.
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(56)
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Seneca Capital Investments, L.P.
(Seneca LP) is the investment manager for Seneca
Capital, L.P. (Seneca). Senecas shares include
6,155 shares underlying warrants to purchase shares of our
common stock. 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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(57)
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Silver Point Capital, L.P.
(Silver Point) is the investment manager of Silver
Point Capital Fund, LP and Silver Point Capital Offshore Master
Fund, LP. Messrs. Edward A. Mule and Robert J. OShea
each indirectly control Silver Point and by virtue of such
status may be deemed to be natural control persons with respect
to the securities covered by this questionnaire.
Messrs. Mule and OShea disclaim
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beneficial ownership of such
securities, except to the extent of any pecuniary interest, and
this report shall not be deemed to be an admission that they are
the beneficial owners of such securities.
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(58)
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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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(59)
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Spectrum Group Management LLC
(SGM) is the investment manager for Spectrum
Investment Partners, L.P. (SIP LP) and Spectrum
Investment Partners International, Ltd. (SIPI Ltd.
and, together with SIP LP, the Spectrum Funds). SIP
LPs shares include 678 shares underlying warrants to
purchase shares of our common stock. SIPI Ltds shares
include 1,745 shares underlying warrants to purchase shares
of our common stock. Spectrum Group GP LLC (SG GP
LLC) is the general partner of SIP LP. The managing member
of SGM and SG GP LLC is Jeffrey Schaffer. SGM, SG GP LLC and
Jeffrey Schaffer may be deemed to beneficially own the
securities held by the Spectrum Funds. SGM, SG GP LLC and
Jeffrey Schaffer each disclaim beneficial ownership of such
securities except to the extent of their pecuniary interests
therein.
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(60)
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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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(61)
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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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(62)
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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, and Mr. Peter Sisitsky
(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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(63)
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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 power
over the shares of common stock owned by Stonehill Master. The
Stonehill Members disclaim beneficial ownership of such
securities.
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(64)
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Suttenbrook Capital Management LP
(SBCMLP) is the investment manager for Suttonbrook
Capital Portfolio LP and Suttonbrook Eureka Fund LP
(collectively the Funds). John London is the
controlling individual of SBCMLP. SBCMLP and John London may be
deemed beneficial owners of the securities held by the Funds.
SBCMLP and John London each disclaim beneficial ownership of
such securities except to the extent of their investment
management responsibilities.
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(65)
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Consists of 1,144,429 shares
of common stock held by UBS Securities, LLC including
280,184 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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(66)
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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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(67)
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Verition Fund Management LLC
is the investment manager for Verition Multi-Strategy Master
Fund Ltd. The managing member of Verition
Fund Management LLC is Nicholas Maounis. Verition
Fund Management LLC and Nicholas Maounis may be deemed to
beneficially own the securities held by Verition Multi-Strategy
Master Fund Ltd. Verition Fund Management LLC and
Nicholas Maounis each disclaim beneficial ownership of such
securities except to the extent of their pecuniary interests
therein.
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(68)
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Includes 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
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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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(69)
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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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(70)
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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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RELATED
PARTY TRANSACTIONS AND MATERIAL RELATIONSHIPS
WITH SELLING STOCKHOLDERS
Dura Automotive. During 2009, Visteon and our
subsidiaries purchased various automotive
sub-components
totaling approximately $425,000 from Dura Automotive LLC and its
subsidiaries in the ordinary course of their businesses. We
expect that we will continue to make similar purchases during
2010 and beyond. Mr. Leuliette, a director of Visteon, was
the Chairman, President and Chief Executive Officer of Dura
Automotive LLC, as well as Managing Director of Patriarch
Partners LLC, the majority shareholder of Dura Automotive LLC
until October 14, 2010.
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 are required to use its 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, 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.
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.
We are required, no later than the effective date of the
registration statement of which this prospectus is a part, to
use our reasonable best efforts to be listed on a national
securities exchange, if so requested by the holders of a
majority interest in the outstanding registrable securities.
When 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.
Upon Visteon 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.
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.
35
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 Investors named therein (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
additional purchasers named therein (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.
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.
36
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 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
662/3%
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.
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 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 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 on or
38
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 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.
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 quoted on the OTC
Bulletin Board under the trading symbol VSTO.OB.
40
SHARES ELIGIBLE
FOR FUTURE SALE
Future sales of substantial amounts of our common stock in the
public market, or the perception that such sales may occur,
could adversely affect the prevailing market price of our common
stock. No prediction can be made as to the effect, if any,
future sales of shares, or the availability of shares for future
sales, will have on the market price of our common stock
prevailing from time to time.
Sale of
Restricted Shares
As of October 15, 2010, we had 50,309,187 shares of
common stock outstanding. Except as set forth below, all shares
of our common stock outstanding after this offering will be
freely tradable without restriction or further registration
under the Securities Act unless held by one of our
affiliates, as that term is defined in Rule 144
(Rule 144) under the Securities Act. Unless
otherwise registered under the Securities Act, sales of shares
of our common stock by affiliates will be subject to the volume
limitations and other restrictions set forth in Rule 144.
Common
Stock and Warrants Issued in Reliance on Section 1145 of
the Bankruptcy Code
We relied on section 1145(a)(1) and (2) of the
Bankruptcy Code to exempt from the registration requirements of
the Securities Act the offer and sale of a portion of our common
stock, as well as the Ten Year Warrants and Five Year Warrants.
Section 1145(a)(1) of the Bankruptcy Code exempts the offer
and sale of securities under the Plan of Reorganization from
registration under Section 5 of the Securities Act and
state laws if certain requirements are satisfied.
Section 1145(a)(2) of the Bankruptcy Code exempts the offer
of securities through and the sale of any securities upon the
exercise of any warrant, option, right to subscribe or
conversion privilege issued under 1145(a)(1) of the Bankruptcy
Code, such as the shares of our common stock issuable upon
exercise of the Ten Year Warrants and Five Year Warrants, from
registration under Section 5 of the Securities Act and
state laws if certain requirements are satisfied.
3,497,520 shares of our common stock issued pursuant to the
Plan of Reorganization, the Ten Year Warrants, the Five Year
Warrants and the 3,907,774 shares of our common stock
issuable upon exercise of such warrants may be resold without
registration unless the seller is an underwriter
with respect to those securities. Section 1145(b)(1) of the
Bankruptcy Code defines an underwriter as any person
who:
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purchases a claim against, an interest in, or a claim for an
administrative expense against the debtor, if that purchase is
with a view to distributing any security received in exchange
for such a claim or interest;
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offers to sell securities offered under the Plan of
Reorganization for the holders of those securities;
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offers to buy those securities from the holders of the
securities, if the offer to buy is (i) with a view to
distributing those securities; and (ii) (a) under an
agreement made in connection with the Plan of Reorganization,
the completion of the Plan of Reorganization, or with the offer
or sale of securities under the Plan of Reorganization; or
(b) is an affiliate of the issuer.
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To the extent a person is deemed to be an
underwriter, resales by such person would not be
exempted by section 1145 of the Bankruptcy Code from
registration under the Securities Act or other applicable law.
Those persons would, however, be permitted to sell our common
stock or other securities without registration if they are able
to comply with the provisions of Rule 144, as described
further below.
Rule 144
As of October 15, 2010, 45,145,000 shares of our
outstanding common stock constituted restricted
securities under Rule 144. 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 may also be
sold under Rule 144 subject in the case of holders that are
affiliates to restrictions on volume and manner of sale.
Common
Stock Issued in the Rights Offering
Certain holders of claims against Visteon
and/or its
subsidiaries (the Eligible Holders) agreed to
purchase shares of our common stock in a rights offering
pursuant to the Plan of Reorganization and certain commitment
agreements. The offer and sale of common stock issued to the
Eligible Holders pursuant to the rights offering was
41
exempt from the registration requirements of Section 5 of
the Securities Act pursuant to Section 4(2) thereof, and
are deemed restricted securities within the meaning
of Rule 144 and may not be sold unless registered under the
Securities Act or in compliance with an applicable exemption
therefrom. As a result, the common stock issued to the Eligible
Holders, is not freely tradable.
Pursuant to the Registration Rights Agreement, we are required
to cause a shelf registration statement covering the resale of
the common stock issued to certain investors in the rights
offering to be filed with the SEC no later than fourteen
business days after the Effective Date. Shares sold pursuant to
such registration statement will be freely tradable, subject to
the volume limitations and other restrictions set forth in
Rule 144 applicable to common stock held by our affiliates.
Pursuant to such requirement, we have filed the registration
statement of which this prospectus is a part with the SEC.
Stock
Options and Other Stock Awards
The Plan of Reorganization contemplates the adoption of a new
management incentive plan under which shares of our common
stock, or options or other awards to purchase shares of common
stock, can be issued to the our directors, management and other
employees. Under the Visteon Corporation 2010 Incentive Plan,
shares of common stock have been reserved for issuance, and we
have awarded 1,666,667 restricted shares of common stock and
restricted stock units to certain of our employees and
non-employee directors. We have filed a registration statement
on
Form S-8
covering all of the shares of common stock reserved for issuance
under the Visteon Corporation 2010 Incentive Plan, and such
shares will be freely tradable in the public market as soon as
issued subject to certain limitations applicable to affiliates
and any restrictions applicable to the vesting of awards.
LEGAL
PROCEEDINGS
On August 31, 2010, the Bankruptcy Court confirmed the Plan
of Reorganization. Mark Taub and Andrew Shirley, holders of
pre-confirmation shares of common stock of Visteon, had objected
to confirmation of the Plan of Reorganization alleging, among
other grounds, that the Plan of Reorganization violated
section 1123(a)(4) of the Bankruptcy Code because the
members of an ad hoc equity committee had entered into the
equity contribution agreement with us and other investors, which
entitled them to purchase a limited number of shares of
reorganized Visteon and receive reimbursement for certain
expenses. The Bankruptcy Court overruled their objection in
entering the order confirming the Plan of Reorganization (the
Confirmation Order). On September 8, 2010,
Messrs. Taub and Shirley sought a stay pending appeal of
the Confirmation Order. The Bankruptcy Court denied their
request for a stay on September 9, 2010. On
September 10, 2010, Messrs. Taub and Shirley (the
Appellants) filed a notice of appeal of the
Confirmation Order with the United States District Court for the
District of Delaware (the District Court), seeking
to overturn the Confirmation Order
and/or other
equitable relief. The Appellants also moved for a stay pending
appeal from the District Court. By oral order given on
September 14, 2010, the District Court affirmed the
Bankruptcy Courts decision denying a stay pending appeal.
The Plan of Reorganization went effective on October 1,
2010.
We intend to vigorously defend the Bankruptcy Courts entry
of the Confirmation Order on appeal. We are unable to estimate
what impact an adverse ruling would have on its results of
operations, financial condition or the value of its securities.
The appellants have requested remedies that include overturning
the Confirmation Order, the payment of cash damages of in excess
of $50 million, the lowering of the exercise price on
certain warrants issued to our old stockholders from $58.80 to
$16.49, the sale of approximately 1.8 million shares of new
common stock to our old stockholders at $27.69, or other
equitable remedies the District Court may determine. In the
event the District Court fashions a remedy for the Appellants,
such remedy could negatively impact the value of new common
stock.
PLAN OF
DISTRIBUTION
We are registering 46,972,866 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.
42
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 OTC Bulletin Board
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;
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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 and managements
assessment of the effectiveness of internal control over
financial reporting (which is included in Managements
Report on Internal Control over Financial Reporting)
incorporated in this Prospectus by reference to the Annual
Report on
Form 10-K
for the year ended December 31, 2009, have been so
incorporated in reliance on the report, which contains an
explanatory paragraph relating to the Companys ability to
continue as a going concern, as described in Note 1 to the
financial statements, 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.
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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 SEC registration fee
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$
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209,323
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Accounting fees and expenses
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50,000
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Legal fees and expenses
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300,000
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Printing fees and expenses
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100,000
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Total
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$
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659,323
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Item 14.
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Indemnification
of Directors and Officers.
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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.
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|
Item 15.
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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.
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|
Item 16.
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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.
(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.
b) 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-2
c) The undersigned registrant hereby undertakes to supply
by means of a post-effective amendment all information
concerning a transaction, and the company being acquired
involved therein, that was not the subject of and included in
the registration statement when it became effective.
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.
e) The undersigned hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report, to
security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the
requirements of
Rule 14a-3
or
Rule 14c-3
under the Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article 3
of
Regulation S-X
is not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such
interim financial information.
II-3
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
October 22, 2010.
VISTEON CORPORATION
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By:
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/s/ William
G. Quigley III
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Name: William G. Quigley III
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Title:
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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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Signature/Name
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Position
|
|
Date
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/s/ Donald
J. Stebbins
Donald
J. Stebbins
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|
Chairman, President and Chief Executive Officer
(Principal Executive Officer)
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October 22, 2010
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/s/ William
G. Quigley III
William
G. Quigley III
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Executive Vice President and Chief Financial Officer
(Principal Financial Officer)
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October 22, 2010
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/s/ Michael
J. Widgren
Michael
J. Widgren
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Vice President, Corporate Controller and Chief Accounting
Officer
(Principal Accounting Officer)
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October 22, 2010
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/s/ Duncan
H. Cocroft
Duncan
H. Cocroft
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Director
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October 22, 2010
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Philippe
Guillemot
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Director
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N/A
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/s/ Herbert
L. Henkel
Herbert
L. Henkel
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Director
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|
October 22, 2010
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II-4
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|
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Signature/Name
|
|
Position
|
|
Date
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|
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/s/ Mark
T. Hogan
Mark
T. Hogan
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Director
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October 22, 2010
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/s/ Jeffrey
D. Jones
Jeffrey
D. Jones
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Director
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October 22, 2010
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/s/ Karl
J. Krapek
Karl
J. Krapek
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Director
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October 22, 2010
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|
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/s/ Timothy
D. Leuliette
Timothy
D. Leuliette
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Director
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October 22, 2010
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|
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/s/ William
E. Redmond, Jr.
William
E. Redmond, Jr.
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Director
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October 22, 2010
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II-5
Exhibit Index
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Exhibit No.
|
|
Description
|
|
|
2
|
.1
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|
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)).
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2
|
.2
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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)).
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3
|
.1
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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)).
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3
|
.2
|
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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)).
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4
|
.1
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|
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)).
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4
|
.2
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|
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)).
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5
|
.1
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Legal Opinion of Kirkland & Ellis LLP.*
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|
10
|
.1
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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)).
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10
|
.2
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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)).
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Exhibit No.
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|
Description
|
|
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10
|
.3
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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)).
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10
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.4
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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)).
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10
|
.5
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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)).
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10
|
.6
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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)).
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10
|
.7
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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)).
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10
|
.8
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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)).
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10
|
.9
|
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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)).
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10
|
.10
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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)).
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10
|
.10.1
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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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10
|
.10.2
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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)).
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10
|
.11
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Visteon Corporation Amended and Restated Deferred Compensation
Plan for Non-Employee Directors.*
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10
|
.12
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Visteon Corporation 2010 Supplemental Executive Retirement
Plan.*
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10
|
.13
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Visteon Corporation 2010 Pension Parity Plan.*
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10
|
.14
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2010 Visteon Executive Severance Plan.*
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Exhibit No.
|
|
Description
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21
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.1
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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,
2009 (File
No. 001-15827)).
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23
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.1
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Consent of Independent Registered Public Accounting Firm,
PricewaterhouseCoopers LLP.*
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23
|
.2
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Consent of Kirkland & Ellis LLP (included as part of
Exhibit 5.1).*
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24
|
.1
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Power of Attorney (included on the signature page).*
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* |
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Filed herewith. |
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Management compensatory plan or arrangement. |
exv5w1
Exhibit 5.1
October 22, 2010
Visteon Corporation
One Village Center Drive
Van Buren Township, MI 48111
Ladies and Gentlemen:
We are acting as special counsel to Visteon Corporation, a Delaware corporation (the
Company), in connection with the proposed registration by the Company of shares of its
common stock, par value $0.01 per share (the Common Stock), pursuant to a Registration
Statement on Form S-1, filed with the Securities and Exchange Commission (the Commission)
on October 22, 2010, under the Securities Act of 1933, as amended (the Act) (such
Registration Statement, as amended or supplemented, is hereinafter referred to as the
Registration Statement). The shares of Common Stock to be sold by the selling
stockholders identified in the Registration Statement are referred to herein as the Shares. The
Shares to be registered pursuant to the Registration Statement includes up to an aggregate of
3,907,774 shares of Common Stock to be issued pursuant to (i) the Warrant Agreement, dated as of
October 1, 2010, by and between Visteon Corporation and Mellon Investor Services LLC in the form
filed as Exhibit 4.1 to the Registration Statement and (ii) the Warrant Agreement, dated as of
October 1, 2010, by and between Visteon Corporation and Mellon Investor Services LLC in the form
filed as Exhibit 4.2 to the Registration Statement (together, the Warrant Agreements),
and being offered by certain selling stockholders (the Warrant Shares).
In that connection, we have examined originals, or copies certified or otherwise identified to
our satisfaction, of such documents, corporate records and other instruments as we have deemed
necessary for the purposes of this opinion, including (i) the Second Amended and Restated
Certificate of Incorporation of the Company in the form filed as Exhibit 3.1 to the Registration
Statement; (ii) the Second Amended and Restated By-laws of the Company in the form filed as Exhibit
3.2 to the Registration Statement; (iii) the Fifth Amended Joint Plan of Reorganization (the
Plan) filed pursuant to Chapter 11 of the United States Bankruptcy Code in the form filed
as Exhibit 2.1 to the Registration Statement; (iv) resolutions of the Board of Directors of the
Company; (v) the Confirmation Order confirming the Plan entered by the United States Bankruptcy
Court for the District of Delaware on August 31, 2010; and (vi) the Registration Statement.
Visteon Corporation
October 22, 2010
Page 2
For purposes of this opinion, we have assumed the authenticity of all documents submitted to
us as originals, the conformity to the originals of all documents submitted to us as copies and the
authenticity of the originals of all documents submitted to us as copies. We have also assumed the
legal capacity of all natural persons, the genuineness of the signatures of persons signing all
documents in connection with which this opinion is rendered, the authority of such persons signing
on behalf of the parties thereto and the due authorization, execution and delivery of all documents
by the parties thereto. We relied upon statements and representations of officers and other
representatives of the Company and others as to factual matters.
Based upon and subject to the foregoing qualifications, assumptions and limitations and the
further limitations set forth below, we are of the opinion that:
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1. |
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When the Registration Statement becomes effective under the Act, the Shares
will be duly authorized and validly issued, fully paid and non-assessable. |
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2. |
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The Warrant Shares have been duly authorized, and when the Warrant Shares have
been duly issued in accordance with the terms of the Warrant Agreements and when the
Warrant Shares are duly countersigned by the Companys transfer agent/registrar, and
upon receipt by the Company of the consideration to be paid therefor, the Warrant
Shares will be validly issued, fully paid and nonassessable. |
Our opinion expressed above is subject to the qualifications that we express no opinion as to
the applicability of, compliance with, or effect of any laws except the General Corporation Law of
the State of Delaware.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the
Registration Statement. We also consent to the reference to our firm under the heading Legal
Matters in the Registration Statement. In giving this consent, we do not thereby admit that we are
in the category of persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission.
This opinion is limited to the specific issues addressed herein, and no opinion may be
inferred or implied beyond that expressly stated herein.
This opinion is furnished to you in connection with the filing of the Registration Statement.
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Sincerely,
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/s/ Kirkland & Ellis LLP
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KIRKLAND & ELLIS LLP |
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exv10w11
Exhibit 10.11
VISTEON CORPORATION
DEFERRED COMPENSATION PLAN
FOR NON-EMPLOYEE DIRECTORS
(Amended and Restated effective as of October 18, 2010)
Section 1. EFFECTIVE DATE
|
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The Board of Directors of Visteon Corporation has adopted this Deferred Compensation Plan,
effective October 11, 2000, for the benefit of the non-employee directors of Visteon
Corporation. |
Section 2. DEFINITIONS
|
|
When used herein the following words and phrases shall have the meanings set forth below
unless the context clearly indicates otherwise: |
|
(a) |
|
Account means the recordkeeping account maintained by the Company in the
name of the Participant. An Account is established for record keeping purposes only
and not to reflect the physical segregation of assets on the Participants behalf, and
may consist of such subaccounts or balances as the Administrative Committee may
determine to be necessary or appropriate, including the following: |
|
1. |
|
Voluntary Deferral Subaccount means the Visteon Stock Units that are
credited to the Participants Account as a result of the Participants election
to make Voluntary Deferrals. |
|
|
2. |
|
Dividend Subaccount means the Visteon Stock Units that are credited
to the Participants Account as a result of deemed dividends on Visteon Stock
Units credited to the Participants Account. |
|
|
3. |
|
Post-Petition Voluntary Deferral Subaccount means the amount credited
to the Participants Account between June 1, 2009 and September 30, 2010, as a
result of the Participants election to make Voluntary Deferrals plus interest
credited as of the last day of each month prior to distribution.
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The interest rate for any calendar year will be a rate that, when credited
and compounded monthly, equals the annual rate of interest on 10-year
Treasury securities for the first day in the September immediately preceding
the first day of the year for which interest is being paid. The interest
credited for any month will be equal to one-twelfth of the product obtained
by multiplying the balance of the Participants Post-Petition Voluntary
Deferral Subaccount on the first day of the month by the applicable interest
rate for the year. |
|
(b) |
|
Administrative Committee means the non-participating members of the Board. |
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(c) |
|
Affiliate means a person or legal entity that directly or indirectly,
through one or more intermediaries, controls or is controlled by, or is under common
control, with the Company, within the meaning of Code Sections 414(b) and (c); provided
that Code Sections 414(b) and (c) shall be applied by substituting at least fifty
percent (50%) for at least eighty percent (80%) each place it appears therein. |
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(d) |
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Board means the Board of Directors of the Company. |
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(e) |
|
Code means the Internal Revenue Code of 1986, as interpreted by regulations
and rulings issued pursuant thereto, all as amended and in effect from time to time. |
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(f) |
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Company means Visteon Corporation, or any successor thereto. |
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(g) |
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Company Stock means the common stock of the Company, par value $0.01. |
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(h) |
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Exchange means the principal securities exchange on which Company Stock is
traded or the over-the-counter market if Company Stock is not traded on a securities
exchange. |
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(i) |
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Participant means each member of the Board who is not a common-law employee
of the Company. |
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(j) |
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Plan means the Visteon Corporation Deferred Compensation Plan for
Non-Employee Directors, as amended from time to time. |
2
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(k) |
|
Plan Year means the period beginning on the effective date of the Plan and
ending on December 31, 2000, and thereafter, the twelve month period beginning on
January 1 and ending December 31 of each year. |
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(l) |
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Separation from Service means the date on which a Participant ceases to be a
member of the Board of Directors of the Company (or the board of directors of any
Affiliate), provided that such cessation constitutes a separation from service for
purposes of Code Section 409A. |
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(m) |
|
Visteon Stock Units mean the hypothetical shares of Company Stock that are
credited to a Participants Account in accordance with Sections 4 and 5. |
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(n) |
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Voluntary Deferrals mean cash remuneration that would otherwise be paid to a
Participant but that, in accordance with the Participants election, is converted into
Visteon Stock Units and credited to the Participants Voluntary Deferral Subaccount. |
Section 3. ADMINISTRATION
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(a) |
|
General Authority. The Administrative Committee shall have the full
power and discretionary authority to: (1) interpret and administer the Plan and any
instrument relating to or made under the Plan; (2) establish, amend, suspend or waive
such rules and regulations and appoint such agents as it shall deem appropriate for the
proper administration of the Plan; and (3) make any other determination, and take any
other action, that the Administrative Committee deems necessary or desirable for the
administration of the Plan. The decisions and determinations of the Administrative
Committee need not be uniform and may be made differently among Participants, and shall
be final, binding and conclusive on all interested parties. |
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(b) |
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Recordkeeping. The Administrative Committee shall be responsible for
maintaining all Accounts; provided that the Administrative Committee may in its
discretion appoint or remove a third-party recordkeeper to maintain the Accounts as
provided herein. |
3
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(c) |
|
Effectiveness of Elections. Any elections or beneficiary designations
made under this Plan shall be effective only upon the delivery of the appropriate form
to the Secretary of the Company and its acceptance by the Administrative Committee. |
Section 4. VOLUNTARY DEFERRALS
|
(a) |
|
Voluntary Deferrals. Each Participant may elect, in such form and
manner specified by the Administrative Committee, to defer the receipt of any cash
remuneration to be earned with respect to services to be performed as a non-employee
member of the Board after the effective date of the election. Such election shall be
effective on the first day of the Plan Year following the date it is received by the
Administrative Committee, provided that to the extent permitted under Code Section
409A, a Participant may elect within 30 days of first becoming a Participant to have an
election take effect immediately with respect to any compensation for services to be
performed after the date of the election. An election, once it becomes effective with
respect to a Plan Year, shall be irrevocable for that Plan Year. An election shall
continue in effect for subsequent Plan Years (and with respect to any Plan Year shall
become irrevocable on January 1 of that Plan Year) unless modified by the Participant
in accordance with this Section 4(a). A Participant may modify an existing election
effective on the first day of the Plan Year following the date on which the revised
election is received by the Administrative Committee. |
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(b) |
|
Conversion to Visteon Stock Units. As of the last day of each month,
all Voluntary Deferrals made by or on behalf of a Participant during that month shall
be converted, for recordkeeping purposes, into whole and fractional Visteon Stock
Units, with fractional units calculated to four decimal places, with the resulting
Visteon Stock Units being credited to the Participants Voluntary Deferral Subaccount.
The conversion shall be accomplished by dividing each Participants Voluntary Deferrals
by the average of the high and low prices at which a share of Company Stock shall have
been sold on the Exchange on the last day of such month on which the Exchange is open
to transact trades. Notwithstanding the foregoing provisions of this Section 4(b),
this Section 4(b) shall not apply to Voluntary Deferrals made by or on behalf of a
Participant with respect to remuneration for services as a non-employee member of the
Board |
4
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between June 1, 2009 and September 30, 2010, and such Voluntary Deferrals shall be
credited to the Participants Post-Petition Voluntary Deferral Subaccount |
|
(c) |
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Vesting. Each Participant shall at all times be 100% vested in his or
her Voluntary Deferral Subaccount and Post-Petition Deferral Subaccount. |
Section 5. DIVIDEND EQUIVALENTS
|
(a) |
|
Conversion to Visteon Stock Units. Any cash dividends that would have
been payable in any month on the Visteon Stock Units credited to a Participants
Account had such units been actual shares of Company Stock shall be converted, for
recordkeeping purposes, into whole and fractional Visteon Stock Units, with fractional
units calculated to four decimal places, with the resulting Visteon Stock Units
credited to the Participants Dividend subaccount. The conversion shall be accomplished
by dividing the Participants deemed dividends for the month by the average of the high
and low prices at which a share of Common Stock shall have been sold on the Exchange on
the last day of such month on which the Exchange is open to transact trades.
Notwithstanding the foregoing provisions of this Section 5(a), this Section 5(a) shall
not apply to cash dividends payable between June 1, 2009 and September 30, 2010, and
any such dividends shall be reflected in a separate subaccount under the Plan |
|
|
(b) |
|
Vesting. Each Participant shall at all times be 100% vested in his or
her Dividend Subaccount. |
Section 6. DISTRIBUTIONS
|
(a) |
|
Distribution Date. Distribution of a Participants vested Account
shall be made or commence to be made on the later of (i) January 15 of the calendar
year following the calendar year in which, or (ii) the first day of the seventh month
following the date on which occurs the Participants Separation from Service. |
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(b) |
|
Participant Distribution Elections. Distribution shall be made in the
form or forms of distribution elected by the Participant. A Participants distribution
election with respect to any Plan Year applies to both (i) the Voluntary Deferrals made
by or on behalf of the Participant during that Plan Year, and (ii) all dividend
equivalent |
5
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|
|
credits made with respect to such deferrals. The Participant may elect to have a
distribution made either in (i) a single sum, or (ii) ten (10) annual installments.
A Participant who fails to make any distribution election shall be deemed to have
elected the single sum payment option. |
|
1. |
|
Pre-2009 Plan Year Deferral Balances. The Participant may make
a separate distribution election with respect to each Plan Year; provided that
a Participants election with respect to a Plan Year shall continue in effect
with respect to each subsequent Plan Year unless the Participant has submitted
(and the Administrative Committee has received) a modified distribution
election prior to January 1 of the Plan Year. On or before December 31, 2008,
a Participant may further revise his or her distribution election with respect
to any Plan Year; provided that a revised distribution election made during
calendar years 2006, 2007 or 2008 with respect to any Plan Year will not be
given effect, and the Participants immediately prior valid distribution
election with respect to such Plan Year will continue in effect, if the revised
election would operate to cause amounts that would otherwise be distributable
in the calendar year in which the revised distribution election is made to be
deferred for distribution in a subsequent calendar year, or to cause amounts
that would otherwise be distributable in a subsequent calendar year to become
distributable in the calendar year in which the revised election is made. A
Participants distribution elections as in effect on December 31, 2008 for Plan
Year ending on or before December 31, 2008, shall be irrevocable. |
|
|
2. |
|
Post-2008 Plan Year Deferral Balances. The Participant may
make a separate distribution election with respect to each Plan Year. Such
election shall be effective on the first day of the Plan Year following the
date it is received by the Administrative Committee; provided that to the
extent permitted under Code Section 409A, a Participant may make a distribution
election within 30 days of first becoming a Participant with respect to the
Plan Year in which participation commences. A distribution election, once
becoming effective with respect to a Plan Year, shall be irrevocable with
respect to that Plan Year. An election shall continue in |
6
|
|
|
effect with respect for subsequent Plan Years (and, with respect to any Plan
Year, shall become irrevocable on January 1 of that Plan Year) unless
modified by the Participant in accordance with this Section 6. A
Participant may modify an existing election for subsequent Plan Years
effective on the first day of the Plan Year following the date on which the
revised election is received by the Administrative Committee. |
|
(c) |
|
Distribution Procedures. |
|
1. |
|
Single Sum Distribution. If the Participant has elected the
single sum distribution option, the Company, in accordance with directions from
the Administrative Committee, will distribute to the Participant a cash payment
determined by multiplying the number of Visteon Stock Units in the
Participants Account that are the subject of the cash payment for which such
election is in effect by the average of the high and low prices at which a
share of Company Stock shall have been sold on the Exchange on the
5th trading day preceding the date on which distribution is made;
provided that the Organization and Compensation Committee of the Board may
direct that all or any part of the Participants distribution be satisfied in
shares of Company Stock equal to the number of Visteon Stock Units credited to
the Participants Account (and cash in lieu of any fractional unit) for which
such election is in effect. |
|
|
2. |
|
Installment Distributions. If the Participant has elected the
installment distribution option, the first installment will be paid on the date
specified in Section 6(a). Each subsequent installment will be paid on January
15 of each succeeding calendar year during the installment period. The annual
installment distribution amount for any year shall be initially determined on a
share basis by dividing the number of Visteon Stock Units credited to the
Participants Account as of January 1 of the year for which the distribution is
being made and for which such an election is in effect by the number of
installment payments remaining to be made, and then rounding the quotient
obtained for all but the final installment to the next lowest whole number. The
Company, in accordance with directions from the Administrative Committee, will
distribute to the Participant a cash |
7
|
|
|
payment determined by multiplying the number of Visteon Stock Units in the
Participants Account that are the subject of the cash payment for which
such election is in effect by the average of the high and low prices at
which a share of Company Stock shall have been sold on the Exchange on the
5th trading day preceding the date on which distribution is made;
provided that the Organization and Compensation Committee of the Board may
direct that all or any part of the Participants distribution be satisfied
in shares of Company Stock equal to the number of Visteon Stock Units
credited to the Participants Account (and cash in lieu of any fractional
unit) for which such election is in effect. |
|
(d) |
|
Securities Restrictions. With respect to any shares of Company Stock
distributed to a Participant, the Participant will not sell or otherwise dispose of
such Company Stock except pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the Act), and applicable state securities laws,
which the Company may but shall not be required to file, or in a transaction which, in
the opinion of counsel for the Company, is exempt from such registration, and a legend
may be placed on the certificates for the Company Stock to such effect. In addition,
in the event of any underwritten public offering of the Companys securities pursuant
to an effective registration statement filed under the Act and upon the request of the
Company or the underwriters managing any underwritten offering of the Companys
securities, the Participant shall not directly or indirectly sell, make any short sale
of, loan, hypothecate, pledge, offer, grant or sell any option or other contract for
the purchase of, or otherwise dispose of or transfer, or agree to engage in any of the
foregoing transactions with respect to, any shares of Company Stock (other than those
included in the registration) acquired under this Plan without the prior written
consent of the Company or such underwriters, as the case may be, for such period of
time (not to exceed 180 days) from the effective date of such registration as may be
requested by the Company or such managing underwriters. |
|
|
(e) |
|
Timing of Distributions. Any distribution that is to be made on a
specified date may be made within 31 days following such date; provided that the
Participant is not permitted, directly or indirectly, to specify the taxable year of
the payment. |
8
Section 7. BENEFICIARY
|
(a) |
|
Death Benefits. If a Participant dies before his or her entire
Account has been distributed, then the remainder of the Participants Account shall be
distributed in a lump sum on the later to occur of (i) January 15 of the calendar year
following the calendar year in which, or (ii) the first day of the seventh month
following the date on which, occurs the Participants death. Any distribution that is
to be made on a specified date may be made within 31 days following such date. |
|
|
(b) |
|
Designation of Beneficiary. Each Participant may designate one or
more beneficiaries in such form and manner specified by the Administrative Committee,
which beneficiary shall be entitled to receive the balance of the Participants
Account as provided under subsection (a) in the event of the Participants death. The
Participant may from time to time revoke or change the beneficiary without the consent
of any prior beneficiary by filing a new designation with the Secretary of the Company.
The last such designation received by the Secretary of the Company shall be
controlling. If no beneficiary designation is in effect at the time the Participant
dies, or if no designated beneficiary survives the Participant, the Participants
beneficiary shall be the Participants estate. |
Section 8. SOURCE OF BENEFITS
|
|
Benefits accumulated under the Plan shall constitute an unfunded, unsecured promise by the
Company to provide such payments in the future, as and to the extent such amounts become
payable. Benefits attributable to service as a non-employee member of the Board shall be
paid from the general assets of the Company, and no person shall, by virtue of this Plan,
have any interest in such assets, other than as an unsecured creditor of the Company. |
Section 9. NON-ALIENATION
|
|
Except as otherwise expressly provided by this Plan, neither the Participant nor his or her
beneficiary or beneficiaries, including, without limitation, the Participants executors and
administrators, heirs, legatees, distributees, and any other person or persons claiming any
benefits through the Participant under this Plan shall have any right to |
9
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|
assign, transfer, pledge, hypothecate, sell, transfer, alienate and encumber or otherwise
convey the right to receive any benefits hereunder, which benefits and the rights thereto
are expressly declared to be nontransferable. The right to receive benefits under this Plan
also shall not be subject to execution, attachment, garnishment, or similar legal, equitable
or other process for the benefit of the Participants or beneficiarys creditors. Any
attempted assignment, transfer, pledge hypothecation or other disposition of the
Participants or beneficiarys rights to receive benefits under this Plan or the levy of any
attachment, garnishment or similar process thereupon, shall be null and void and without
effect. |
Section 10. CHANGE IN CONTROL
|
|
In the event of a Change in Control Event (as defined in Code Section 409A) with respect to
the Company, a Participants Account shall be fully vested, notwithstanding any vesting
schedule that would otherwise be applicable, and the value of the Participants Account,
determined as of the date of the Change in Control Event, shall be immediately paid to the
Participant in a single sum cash payment, notwithstanding any prior distribution election
made by the Participant. |
Section 11. DURATION OF PLAN
|
|
Unless terminated earlier pursuant to Section 12, this Plan shall remain in effect during
the term of service of the Participants and until the Account of each Participant has been
distributed as provided herein. |
Section 12. AMENDMENT AND TERMINATION
|
|
The Board reserves the right to amend or terminate this Plan at any time; provided that any
termination of the Plan shall be implemented in accordance with the requirements of Code
Section 409A, and the authority of the Administrative Committee to administer the Plan shall
extend beyond the date of the Plans termination; and provided further that no amendment or
termination of the Plan shall adversely affect the rights of any Participant or beneficiary
to benefits then accrued without the written consent of the affected Participant or
beneficiary. |
10
Section 13. MISCELLANEOUS
|
(a) |
|
Governing Law. This Plan shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without reference to
conflict of law principles thereof. |
|
|
(b) |
|
Severability. If any provision of the Plan is or becomes or is deemed
to be invalid, illegal or unenforceable in any jurisdiction or as to any person, or
under any law deemed applicable by the Administrative Committee, such provision shall
be construed or deemed amended to conform to applicable laws, or if it cannot be so
construed or deemed amended without, in the determination of the Administrative
Committee, materially altering the intent of the Plan, such provision shall be stricken
as to such jurisdiction or person, and the remainder of the Plan shall remain in full
force and effect. |
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(c) |
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Successors and Assigns. The Plan shall be binding upon, and inure to
the benefit of, the Company and its successors and assigns, and upon any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise, all or
substantially all of the Companys assets and business. |
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(d) |
|
Transactions Affecting Visteon Common Stock. In the event of any
merger, share exchange, reorganization, consolidation, recapitalization, stock
dividend, stock split or other change in corporate structure of the Company affecting
Company Stock, the Administrative Committee shall make appropriate equitable
adjustments with respect to the Visteon Stock Units (if any) credited to the Account of
each Participant, including without limitation, adjusting the number of such Units or
the date as of which such Units are valued and/or distributed, as the Administrative
Committee determines is necessary or desirable to prevent the dilution or enlargement
of the benefits intended to be provided under the Plan. |
|
|
(e) |
|
Permitted Delay in Payment. If a distribution required under the
terms of this Plan would jeopardize the ability of the Company or of an Affiliate to
continue as a going concern, the Company or the Affiliate shall not be required to make
such distribution. Rather, the distribution shall be delayed until the first date that
making the distribution does not jeopardize the ability of the Company or of an |
11
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|
|
Affiliate to continue as a going concern. Further, if any distribution pursuant to
the Plan will violate the terms of Federal securities law or any other applicable
law, then the distribution shall be delayed until the earliest date on which making
the distribution will not violate such law. |
|
(f) |
|
Cancellation of Pre-Petition Visteon Stock Units. For the avoidance
of doubt, all Visteon Stock Units that were credited to a Participants Account as of
11:59 PM EST on September 30, 2010, whether as a result of the deferral of restricted
stock or other Voluntary Deferrals that were not credited to the Participants
Post-Petition Voluntary Deferral Subaccount, were cancelled. |
12
exv10w12
Exhibit 10.12
VISTEON CORPORATION
2010 SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(Effective October 5, 2010)
VISTEON CORPORATION
2010 SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
The Visteon Corporation 2010 Supplemental Executive Retirement Plan (the Plan) has been
adopted to promote the best interests of Visteon Corporation (the Company) and the stockholders
of the Company by attracting and retaining key management employees possessing a strong interest in
the successful operation of the Company and its subsidiaries or affiliates and encouraging their
continued loyalty, service and counsel to the Company and its subsidiaries or affiliates. The Plan
will become effective without action of the Board of Directors on the second business day after the
Companys plan of reorganization pursuant to Chapter 11 of the United States Bankruptcy Code on
which: (a) no stay of the plan confirmation order is in effect; and (b) all conditions precedent to
the effective date of the plan or reorganization have been satisfied or waived (the Effective
Date).
-1-
ARTICLE I. DEFINITIONS AND CONSTRUCTION
Section 1.01. Definitions. The following terms have the meanings indicated below
unless the context in which the term is used clearly indicates otherwise.
(a) Affiliate: A person or legal entity that directly or indirectly, through one or more
intermediaries, controls or is controlled by, or is under common control, with the Company, within
the meaning of Code Sections 414(b) and (c); provided that Code Section 414(b) and (c) shall be
applied by substituting at least fifty percent (50%) for at least eighty percent (80%) each
place it appears therein.
(b) BalancePlus Program: The BalancePlus component of the Visteon Pension Plan.
(c) Beneficiary: The person or entity designated by a Participant to be his or her
beneficiary for purposes of this Plan (subject to such limitations as to the classes and number of
beneficiaries and contingent beneficiaries and such other limitations as the Committee may
prescribe). A Participants designation of beneficiary shall be valid and in effect only if a
properly executed designation, in such form as the Committee shall prescribe, is filed and received
by the Committee or its delegate prior to the Participants death. If a Participant designates his
or her spouse as beneficiary, such beneficiary designation automatically shall become null and void
on the date of the Participants divorce or legal separation from such spouse. If a valid
designation of beneficiary is not in effect at the time of the Participants death, the
Participants surviving spouse, or if there is no surviving spouse, the estate of the Participant,
shall be deemed to be the sole beneficiary. If multiple beneficiaries have been designated and one
or more of the beneficiaries predecease the Participant, then upon the Participants death, payment
shall be made exclusively to the surviving beneficiary or beneficiaries unless the Participants
designation specifies an alternate method of distribution. Further, in the event that the
Committee is uncertain as to the identity of the Participants beneficiary, the Committee may deem
the estate of the Participant to be the sole beneficiary. Beneficiary designations shall be in
writing (or in such other form as authorized by the Committee for this purpose, which may include
on-line designations), shall be filed with the Committee or its delegate, and shall be in such form
as the Committee may prescribe for this purpose.
-2-
(d) Board: The Board of Directors of the Company.
(e) Code: The Internal Revenue Code of 1986, as interpreted by regulations and rulings issued
pursuant thereto, all as amended and in effect from time to time. Any reference to a specific
provision of the Code shall be deemed to include reference to any successor provision thereto.
(f) Committee: The Organization and Compensation Committee of the Board.
(g) Company: Visteon Corporation, or any successor thereto.
(h) Covered Employment Classification: The employment positions classified by the Company (or
by a Participating Employer with the consent of the Company) as Leadership Level One, Leadership
Level Two, Leadership Level Three, Leadership Level Four, Corporate Officer, Executive Leader,
Senior Director, Director or, prior to January 1, 2006, Senior Leader.
(i) Credited Service: For purposes of determining supplemental benefits under Article II, the
years and any fractional year of credited service attributable to employment through June 30, 2006,
without duplication and not exceeding one year for any calendar year, of the Participant under all
the Retirement Plans; provided, that solely for purposes of this Plan as applied to a Participant
who is a Transferred Group I or II Employee as defined under the Visteon Pension Plan, and subject
to Section 2.03, the Participants credited service under all of the Retirement Plans shall be
deemed to include, to the extent not otherwise considered under the Retirement Plans, the
Participants credited service recognized under the General Retirement Plan of Ford Motor Company
for employment through June 30, 2000. For purposes of determining the Pension Equity Benefit under
Section 3.03, the service that is or would be recognized for the Participant under the pension
equity component of the BalancePlus Program, taking into account the modifications set forth in
Section 3.03 of this Plan.
(j) Effective Date: The second business day after confirmation of the Companys plan of
reorganization pursuant to Chapter 11 of the United States Bankruptcy Code on which: (a) no stay of
the plan confirmation order is in effect; and (b) all conditions precedent to the effective date of
the plan of reorganization have been satisfied or waived.
-3-
(k) Eligibility Service: Subject to Section 2.06, service with a Participating Employer while
employed in a Covered Employment Classification; provided, that in the case of a Participant who
was covered under the Ford Motor Company Supplemental Executive Retirement Plan on June 30, 2000,
Eligibility Service recognized for such Participant under the Ford Motor Company Supplemental
Executive Retirement Plan as of June 30, 2000 shall be recognized as Eligibility Service under this
Plan.
(l) Employee: A person who, on or after the Effective Date, is (i) classified by a
Participating Employer as a common law employee enrolled on the active employment rolls of the
Participating Employer, and (ii) regularly employed by a Participating Employer on a salaried basis
(as distinguished from a pension, retirement allowance, severance pay, retainer, commission, fee
under a contract or other arrangement, or hourly, piecework or other wage).
(m) ERISA: The Employee Retirement Income Security Act of 1974, as interpreted by regulations
and rulings issued pursuant thereto, all as amended and in effect from time to time. Any reference
to a specific provision of ERISA shall be deemed to include reference to any successor provision
thereto.
(n) Participant: Subject to Section 2.06, an Employee who is employed in a Covered Employment
Classification, and where the context so requires, a former Employee entitled to receive a benefit
hereunder.
(o) Participating Employer: The Company, Visteon Global Technologies, Inc., and each other
subsidiary a majority of the voting stock of which is owned directly or indirectly by the Company
or a limited liability company a majority of the membership interest of which is owned directly or
indirectly by the Company, that with the consent of the Committee, participates in the Plan for the
benefit of one or more Participants in its employ.
(p) Pension Equity Benefit: The amount calculated under Section 3.03(a)(i)(B) and Section
3.03(c). This amount is determined (with certain modifications) by reference to the pension equity
formula of the BalancePlus Program. A pension equity benefit under Section 3.03 will be calculated
for each Participant, whether or not the Participant is actually covered
-4-
under the BalancePlus Program and/or the pension equity component of the BalancePlus Program.
(q) Plan: The Visteon Corporation 2010 Supplemental Executive Retirement Plan, as amended and
in effect from time to time.
(r) Retirement Plans: The Visteon Pension Plan (other than the BalancePlus Program) and the
Salaried Retirement Plan of Visteon Systems, LLC (as in effect prior to its merger into the Visteon
Pension Plan), all as amended and in effect from time to time. The Retirement Plan includes the
following components:
|
(i) |
|
Contributory/Noncontributory Service Program: The portion of
the Retirement Plan, excluding the Cash Balance Program. |
|
|
(ii) |
|
Cash Balance Program: The portion of the Retirement Plan that
calculates benefit accruals using a cash balance and/or pension equity formula,
including, without limitation, the BalancePlus Component. |
(s) Separation from Service: The date on which a Participant terminates employment from the
Company and all Affiliates, provided that (1) such termination constitutes a separation from
service for purposes of Code Section 409A, and (2) the facts and circumstances indicate that the
Company (or the Affiliate) and the Participant reasonably believed that the Participant would
perform no further services (either as an employee or as an independent contractor) for the Company
(or the Affiliate) after the Participants termination date, or believed that the level of services
the Participant would perform for the Company (or the Affiliate) after such date (either as an
employee or as an independent contractor) would permanently decrease such that the Participant
would be providing insignificant services to the Company or an Affiliate. For this purpose, a
Participant is deemed to provide insignificant services to the Company or an Affiliate, and thus to
have incurred a bona fide Separation from Service, if the Participant provides services at an
annual rate that is less than twenty percent (20%) of the services rendered by such Participant, on
average, during the immediately preceding thirty-six (36) months of employment (or his or her
actual period of employment if less). Notwithstanding the foregoing, if a Participant takes a
leave of absence from the Company or an Affiliate for the purpose of military leave,
-5-
sick leave or other bona fide leave of absence, the Participants employment will be deemed to
continue for the first six (6) months of the leave of absence, or if longer, for so long as the
Participants right to reemployment is provided either by statute or by contract; provided that if
the leave of absence is due to a medically determinable physical or mental impairment that can be
expected to result in death or last for a continuous period of not less than six (6) months, where
such impairment causes the Participant to be unable to perform the duties of his or her position of
employment or any substantially similar position of employment, the leave may be extended for up to
twenty-nine (29) months without causing a Separation from Service.
(t) SERP Eligibility Date: The date on which the Participant has, for each of at least five
years of Eligibility Service immediately preceding the Participants termination of the employment
with a Participating Employer, been selected to participate in the Companys Annual Incentive
program and has been granted a target bonus under such program of at least 30% of the Participants
annual base salary rate in effect on the date the target bonus amount is established.
Section 1.02. Construction and Applicable Law.
(a) Wherever any words are used in the masculine, they shall be construed as though they were
used in the feminine in all cases where they would so apply; and wherever any words are use in the
singular or the plural, they shall be construed as though they were used in the plural or the
singular, as the case may be, in all cases where they would so apply. Titles of articles and
sections are for general information only, and the Plan is not to be construed by reference to such
items.
(b) This Plan is intended to be a plan of deferred compensation maintained for a select group
of management or highly compensated employees as that term is used in ERISA, and shall be
interpreted so as to comply with the applicable requirements thereof. In all other respects, the
Plan is to be construed and its validity determined according to the laws of the State of Michigan
to the extent such laws are not preempted by federal law. In case any provision of the Plan is
held illegal or invalid for any reason, the illegality or invalidity will not affect the remaining
parts of the Plan, but the Plan shall, to the extent possible, be construed and enforced as if the
illegal or invalid provision had never been inserted.
-6-
ARTICLE II. SUPPLEMENTAL BENEFITS FOR PARTICIPANTS WITH
RETIREMENT PLAN SERVICE (OTHER THAN SERVICE RECOGNIZED UNDER
THE CASH BALANCE PROGRAMS)
Section 2.01. Eligibility. A Participant who is covered under the
Contributory/Noncontributory Service Program or under the Salaried Retirement Plan of Visteon
Systems, LLC (as in effect prior to its merger into the Visteon Pension Plan) shall be eligible to
receive a supplemental benefit as provided in this Article II if the Participant:
|
(i) |
|
is employed on or after the Effective Date; |
|
|
(ii) |
|
is employed in a Covered Employment Classification at
termination of employment; and |
|
|
(iii) |
|
terminates employment after his or her SERP Eligibility Date
with the approval of the Participating Employer. |
Section 2.02. Additional Definitions. For purposes of this Article II, the following
terms have the meanings indicated below:
(a) Final Five Year Average Base Salary: The average of the Participants Monthly Base Salary
for the five December 31 measurement dates coincident with or immediately preceding the first date
on which the Participant retires from or otherwise ceases to be employed in a Covered Employment
Classification with the Company and its Affiliates.
(b) Monthly Base Salary: Subject to Section 2.06, the monthly base salary paid to a
Participant while employed in a Covered Employment Classification on a December 31 measurement date
coincident with or immediately preceding the first date on which the Participant retires from or
otherwise ceases to be employed in a Covered Employment Classification with the Company and its
Affiliates. The Participants monthly base salary shall be determined prior to giving effect to
any salary reduction agreement to which Section 125 or Section 402(a) (8) of the Code applies, and
shall not include any other kind of extra or additional compensation. For purposes of this
subsection, base salary paid by Ford Motor Company prior to July 1, 2000 shall be treated as if
paid by the Company.
-7-
Section 2.03. Amount of Supplemental Benefit.
(a) Subject to Section 2.06, any reductions pursuant to subsections (b) and (c) below and to
any limitations and reductions pursuant to other provisions of the Plan, the supplemental benefit,
when expressed in the form of a monthly life annuity with no survivor benefits commencing on the
first day of the month next following the Participants termination of employment, shall be an
amount equal to the Participants Final Five Year Average Base Salary multiplied by the
Participants years of Credited Service, and further multiplied by the Applicable Percentage based
on the Covered Employment Classification in which the Participant served immediately prior to his
or her retirement, as follows:
|
|
|
|
|
Covered Employment Classification |
|
|
Immediately Prior to Retirement |
|
Applicable Percentage |
|
Chairman |
|
|
0.90 |
% |
President |
|
|
0.80 |
% |
Executive Vice President |
|
|
0.80 |
% |
Senior Vice President |
|
|
0.75 |
% |
Elected Vice President |
|
|
0.70 |
% |
Executive Leader (other than a Participant who was a
Senior Leader on January 1, 2006 and who became an
Executive Leader on such date coincident with the
elimination of the Senior Leader classification) or
Leadership Level Two |
|
|
0.40 |
% |
Director, Senior Director or Senior
Leader (including Participants who were
classified as Senior Leaders on January
1, 2006 and who became either Executive
Leaders or Senior Directors coincident
with the elimination of the Senior
Leader classification), Leadership Level
Three, or Leadership Level Four |
|
|
0.20 |
% |
(b) For a Participant who is a Transferred Group I or II Employee as defined under the Visteon
Pension Plan and who is entitled to a benefit under the Ford Motor Company
-8-
Supplemental Executive Retirement Plan, the monthly supplement benefit payable hereunder shall
be reduced by the amount of the supplemental benefit to which the Participant is entitled under the
Ford Motor Company Supplemental Executive Retirement Plan (or to which the Participant would have
been entitled under such plan except for any forfeiture of benefits attributable to the
Participants conduct), assuming commencement on the first day of the month next following the
Participants termination of employment. In addition, the Committee may further adjust the monthly
supplemental benefit payable to a Participant who is a Transferred Group I or II Employee if such
action is necessary or desirable as a result of changes in the Ford Motor Company Supplemental
Executive Retirement Plan or if such action is otherwise necessary or desirable in order to avoid
duplicative benefits or to ensure that the Participants aggregate benefit from this Plan and from
the Ford Motor Company Supplemental Executive Retirement Plan, and the allocation of benefits
between such plans, is consistent with the Employee Transition Agreement dated April 1, 2000 by and
between the Company and Ford Motor Company, and any amendments thereto.
(c) For a Participant who shall retire before age 62, the monthly supplemental benefit payable
hereunder shall equal the amount calculated in accordance with subsections (a) and (b) immediately
above, reduced by 5/18 of 1% multiplied by the number of months from the later of the date the
supplemental benefit commences, or age 55 in the case of earlier receipt by reason of disability
retirement, to the first day of the month after the Participant would attain age 62.
Section 2.04. Payments. Supplemental benefit payments shall be paid to the
Participant in the form of a single lump sum payment on the first day of the seventh month
following the Participants Separation from Service. The amount of the lump sum payment will be
equal to the present value of the monthly amount calculated under Section 2.03 above, with such
present value determined by using the discount rates and mortality tables that are used to
calculate the obligations for the Plan as disclosed in the Companys audited financial statements
for the year ended immediately prior to the year in which occurs the Participants Separation from
Service, or, in the case of a Participant whose Separation from Service occurs prior to December
31, 2010, as disclosed in the reorganized Companys financial statements as of the business day
prior to the Effective Date (the Financial Statement Factors). The lump sum present value is
calculated in three ways, and the Participant is entitled to the greatest of the three. Under the
-9-
first calculation, the lump sum is equal to the sum of (i) the lump sum value determined when
the monthly amount calculated under Section 2.03 is multiplied by an immediate annuity factor that
is determined by reference to the Financial Statement Factors and the Participants age at
Separation from Service, and (ii) six months of interest, at the rate determined by reference to
the Financial Statement Factors, on the amount determined under clause (i). Under the second
calculation, the lump sum is the amount determined when the monthly amount calculated under Section
2.03 is multiplied by an immediate annuity factor that is determined by reference to the Financial
Statement Factors and the Participants age at Separation from Service plus six months. Under the
third calculation, which is applicable only if the Participant will be under age 55 at the benefit
payment date, the lump sum is the amount determined when the monthly amount calculated under
Section 2.03 is multiplied by a deferred to age 55 annuity factor that is determined by reference
to the Financial Statement Factors and the Participants age at Separation from Service.
Section 2.05. Death Benefits.
(a) Death During Employment. If the Participant dies during employment, no benefit is
payable under the Plan.
(b) Death After Termination But Prior to Benefit Payment. In the event a Participant
who terminates from employment with an entitlement to a benefit dies prior to payment of such
benefit, the benefit will be paid to the Participants Beneficiary in the form of a single lump sum
payment (calculated in accordance with Section 2.04) on the first day of the seventh month
following the Participants Separation from Service.
(c) Death After Benefit Payment. If a Participant dies on or after the date on which
a lump sum payment of the Participants supplement benefit has been made, no further benefits are
payable following the Participants death.
Section 2.06. Special Rules for Certain Employees Affected by 2001 Work Force
Restructuring Program. The following rules shall apply to an Employee who (i) was employed in
a Covered Employment Classification immediately prior to the Companys 2001 Work Force
Restructuring (the Restructuring), and (ii) continued to be employed by a Participating
-10-
Employer following the Restructuring but, as a result of the Restructuring, ceased to be
employed in a Covered Employment Classification:
(a) The Employee will continue as a Participant in the Plan notwithstanding the Employees
transfer to a non-Covered Employment Classification.
(b) The Employee will continue to accumulate Eligibility Service for employment with a
Participating Employer following the Restructuring, and such employment shall be treated, for
purposes of Section 1.01(n), 2.01 and 2.02(b), as if it were employment in an Eligible Employment
Classification.
(c) The amount of the Employees supplemental benefit under Section 2.03 shall be based on the
Covered Employment Classification in which the Employee was employed immediately prior to the
Restructuring.
-11-
ARTICLE III. SUPPLEMENTAL BENEFITS FOR SERVICE RECOGNIZED UNDER
THE CASH BALANCE PROGRAMS
Section 3.01. Eligibility. A Participant shall be eligible to receive a supplemental
benefit as provided in this Article III if the Participant:
(a) is covered under and will receive a monthly annuity benefit from the Cash Balance Program;
(b) is employed in a Covered Employment Classification at termination of employment; and
(c) terminates employment after his or her SERP Eligibility Date with the approval of the
Participating Employer.
Section 3.02. Additional Definitions. For purposes of this Article III, the
following terms have the meanings indicated below:
(a) Annual Incentive: The portion of the Visteon Incentive Plan, or any successor plan, that
provides for incentive compensation that is awarded in the form of a cash bonus and that is based
on a performance period of 12 months or less.
(b) Compensation: The Participants compensation as defined in the Cash Balance Program that
is applicable for purposes of determining the Participants cash balance accruals, plus for any
month after the Participants SERP Eligibility Date, if not otherwise recognized, any Annual
Incentive amounts actually paid to the Participant (or that would have been paid to the Participant
except for the Participants election to defer all or a portion of such payment), all as determined
without regard to the compensation limitation of Code Section 401(a)(17).
(c) Final Average Compensation: The final average compensation that would be determined for
the Participant under the BalancePlus Program (or that would be determined for the Participant
under the BalancePlus Program assuming if the Participant is treated as being eligible for the
pension equity component of the BalancePlus Program) for purposes of determining pension equity
accruals, plus the average of the three highest consecutive Annual Incentive amounts paid to the
Participant (or that would have been paid to the Participant except
-12-
for the Participants election to defer all or a portion of such payment) during the 120 month
period immediately preceding the Participants termination of employment, all as determined without
regard to the compensation limitation of Code Section 401(a)(17).
Section 3.03. Amount of Supplemental Benefit.
(a) Subject to any limitations and reductions pursuant to other provisions of the Plan, the
supplemental benefit, when expressed in the form of a life annuity without survivor benefits, shall
be an amount equal to:
|
(i) |
|
The greater of (A) the monthly annuity benefit that the
Participant would have received under the Cash Balance Program (excluding any
pension equity component) if the Participants benefit under such program had
been calculated in accordance with the modifications described in subsection
(b) below, or (B) the monthly Pension Equity Benefit calculated in accordance
with subsection (c) below; minus |
|
|
(ii) |
|
The monthly annuity benefit to which the Participant is
actually entitled under the Cash Balance Program (including any pension equity
component); minus |
|
|
(iii) |
|
The monthly annuity benefit to which the Participant is
actually entitled under the Visteon Corporation 2010 Pension Parity Plan (prior
to conversion of the benefit to a single sum form of payment). |
(b) The Cash Balance Program monthly annuity benefit for purposes of subsection (a)(i)(A)
above is the monthly annuity benefit to which the Participant would have been entitled under the
Cash Balance Program (disregarding any pension equity component) if the Participants benefit under
such program were calculated consistent with the following modifications:
|
(i) |
|
The limitations of Code Section 415 are disregarded; |
|
|
(ii) |
|
For purposes of calculating a Participants cash balance
benefit, the benefit is calculated by applying the definition of Compensation
set forth |
-13-
|
|
|
in Section 3.02(b) above in lieu of the definition set forth in the Cash
Balance Program; and |
(c) The Pension Equity Benefit for purposes of subsection (a)(i)(B) above is the monthly
annuity benefit to which the Participant would have been entitled under the pension equity
component of the BalancePlus Program if the benefit were calculated consistent with the following:
|
(i) |
|
The Participant is treated as being eligible for the pension
equity component of the BalancePlus Program, whether or not the Participant is
actually covered under the BalancePlus Program and/or the pension equity
component of the BalancePlus Program; |
|
|
(ii) |
|
The limitations of Code Section 415 are disregarded; |
|
|
(iii) |
|
For purposes of calculating the Pension Equity Benefit: |
|
(A) |
|
The benefit is calculated by applying a benefit
multiplier of 15% in lieu of the 12.5% benefit multiplier specified in
the BalancePlus Program; |
|
|
(B) |
|
The benefit is calculated by applying the
definition of Final Average Compensation set forth in Section 3.02(c)
above in lieu of the definitions set forth in the BalancePlus Program;
and |
|
|
(C) |
|
The benefit is calculating by disregarding
Credited Service (or other service) that is attributable to employment
prior to July 1, 2006 by a Participant who during such period was
covered under the Contributory/Noncontributory Service Program or the
Salaried Retirement Plan of Visteon Systems, LLC (as in effect prior to
its merger into the Visteon Pension Plan). |
|
|
(D) |
|
The Participants Credited Service is
calculating without regard to the provision in the BalancePlus Program
that limits Credited |
-14-
|
|
|
Service to periods of eligible employment through June 30, 2006,
i.e., eligible employment after June 30, 2006 is recognized. |
|
(E) |
|
The benefit is calculated by applying the
following early commencement reduction factors in lieu of the early
commencement factors set forth in the BalancePlus Program: |
|
|
|
Applicable Period Preceding Participants |
|
|
Normal Retirement Date |
|
Reduction |
|
|
|
First 5 Years
|
|
1.25% Per Year* |
Years in Excess of 5 But Not More Than 20
|
|
3.75% Per Year* |
Years in Excess of 20
|
|
Actuarially Equivalent Reduction* |
|
|
|
* |
|
The reduction will be prorated for portions of a year, by multiplying the applicable
reduction for a full year by a fraction, the numerator of which is the number of full months in
such partial year, and the denominator of which is 12. In addition, the reduction is cumulative,
e.g., if the Applicable Period is 23 years prior to the Participants Normal Retirement
Date, the reduction is 1.25% for each of years one through five, 3.75% for each of years six
through 20, and an Actuarially Equivalent reduction for years 21 through 23. The Actuarial
Equivalence basis used for early retirement reductions in excess of 20 years is the same basis
defined in the BalancePlus Program. |
(d) A Participant who becomes disabled while actively employed will continue to accrue
benefits under this Article III during the period of disability to the same extent that the
Participant accrues benefits under the Cash Balance Program during the period of such disability.
Section 3.04. Payment of Supplemental Benefit. Payments shall be paid to the
Participant in the form of a single lump sum payment on the first day of the seventh month
following the Participants Separation from Service. The amount of the lump sum payment will be
equal to the present value of the gross monthly amount calculated under Section 3.03 above, with
such present value determined by using the discount rates and mortality tables that are used to
calculate the obligations for the Plan as disclosed in the Companys audited financial statements
for the year ended immediately prior to the year in which occurs the Participants
-15-
Separation from Service or, in the case of a Participant whose Separation from Service occurs
prior to December 31, 2010, as disclosed in the reorganized Companys financial statements as of
the business day prior to the Effective Date (the Financial Statement Factors). The lump sum
present value is calculated in three ways, and the Participant is entitled to the greatest of the
three. Under the first calculation, the lump sum is equal to the sum of (i) the lump sum value
determined when the monthly amount calculated under Section 3.03 is multiplied by an immediate
annuity factor that is determined by reference to the Financial Statement Factors and the
Participants age at Separation from Service, and (ii) six months of interest, at the rate
determined by reference to the Financial Statement Factors, on the amount determined under clause
(i). Under the second calculation, the lump sum is the amount determined when the monthly amount
calculated under Section 3.03 is multiplied by an immediate annuity factor that is determined by
reference to the Financial Statement Factors and the Participants age at Separation from Service
plus six months. Under the third calculation, which is applicable only if the Participant will be
under age 55 at the benefit payment date, the lump sum is the amount determined when the monthly
amount calculated under Section 3.03 is multiplied by a deferred to age 55 annuity factor that is
determined by reference to the Financial Statement Factors and the Participants age at Separation
from Service.
Section 3.05. Death Benefits.
(a) If a Participant dies on or after the date on which payment of the Participants lump sum
supplemental benefit has been made, no further benefits are payable following the Participants
death.
(b) If the Participant dies prior to the Participants SERP Eligibility Date, no benefits are
payable following the Participants death.
(c) If the Participant dies after the Participants SERP Eligibility Date but prior to the
date on which payment of the Participants supplemental benefit has been paid, a single sum death
benefit shall be paid to the Participants Beneficiary. The amount of the death benefit will be
equal to the actuarially equivalent single sum value (calculated in accordance with Section 3.04)
of the monthly annuity benefit that other-wise would have been payable under Section 3.03.
-16-
ARTICLE IV. CONDITIONAL ANNUITIES
Section 4.01. Eligibility. The Committee, in its discretion, may award to a
Participant who is a Corporate Officer or an employee in Leadership Level One additional retirement
income in the form of a Conditional Annuity, which shall become payable if the Participant shall
retire directly from employment with a Participating Employer either (i) on normal or (ii) with the
approval of the Participating Employer at or after age 55 on early retirement. This Article III
shall only apply to a Participant whose original date of hire is prior to January 1, 2002.
Section 4.02. Amount of Conditional Annuity.
(a) In determining the amount of any Conditional Annuity to be awarded to an eligible
Participant for any year, the Committee shall consider the Companys profit performance and the
amount of supplemental compensation that is awarded to such Participant for such year. Awards
shall be made only for years in which the Committee has decided, for reasons other than individual
or corporate performance or termination of employment, to award supplemental compensation to an
eligible Participant in an amount which is less than would have been awarded if the historical
relationship to awards to other executives had been followed (including, for this purpose, the
historical relationship to awards made by Ford Motor Company with respect to periods prior to July
1, 2000, during which time the Company was a wholly-owned subsidiary or division of Ford Motor
Company).
(b) The aggregate amount payable under the Conditional Annuities awarded to any eligible
Participant and the amount payable to an eligible Participant as a conditional annuity under the
Ford Motor Company Supplemental Executive Retirement Plan, when such amounts are expressed in the
form of a life annuity without survivor benefits, shall not exceed an amount equal to the
Applicable Percentage of such Participants Final Three Year Average Base Salary, determined in
accordance with the following table:
-17-
|
|
|
|
|
|
|
|
|
|
|
Applicable Percentage |
Number of Years for |
|
|
|
|
|
All Other |
Which a Conditional |
|
Chairman |
|
Eligible |
Annuity is Awarded |
|
And President |
|
Corporate Officers |
|
|
|
|
|
|
|
|
|
1 |
|
|
30 |
% |
|
|
20 |
% |
2 |
|
|
35 |
|
|
|
25 |
|
3 |
|
|
40 |
|
|
|
30 |
|
4 |
|
|
45 |
|
|
|
35 |
|
5 or more |
|
|
50 |
|
|
|
40 |
|
The percentage shall be reduced pro rata to the extent that Credited Service at retirement is
less than 30 years.
(c) Final Three Year Average Base Salary means the average of the Participants Monthly Base
Salary (as defined in Section 2.02) for the three December 31 measurement dates coincident with or
immediately preceding the first date on which the Participant retires from or otherwise ceases to
be employed in a Covered Employment Classification with the Company and its Affiliates.
Section 4.03. Payments. Payments shall be paid to the Participant in the form of a
single lump sum payment on the first day of the seventh month following the Participants
Separation from Service. The amount of the lump sum payment will be equal to the present value of
the gross monthly amount calculated under Section 4.02 above, with such present value determined by
using the discount rates and mortality tables that are used to calculate the obligations for the
Plan as disclosed in the Companys audited financial statements for the year immediately prior to
the year in which occurs the Participants Separation from Service or, in the case of a Participant
whose Separation from Service occurs prior to December 31, 2010, as disclosed in the reorganized
Companys financial statements as of the business day prior to the Effective Date (the Financial
Statement Factors). The lump sum present value is calculated in three ways, and the Participant is
entitled to the greatest of the three. Under the first calculation, the lump sum is equal to the
sum of (i) the lump sum value determined when the monthly amount calculated under Section 4.02 is
multiplied by an immediate annuity factor that is determined by reference
-18-
to the Financial Statement Factors and the Participants age at Separation from Service, and
(ii) six months of interest, at the rate determined by reference to the Financial Statement
Factors, on the amount determined under clause (i). Under the second calculation, the lump sum is
the amount determined when the monthly amount calculated under Section 4.02 is multiplied by an
immediate annuity factor that is determined by reference to the Financial Statement Factors and the
Participants age at Separation from Service plus six months. Under the third calculation, which
is applicable only if the Participant will be under age 55 at the benefit payment date, the lump
sum is the amount determined when the monthly amount calculated under Section 4.02 is multiplied by
a deferred to age 55 annuity factor that is determined by reference to the Financial Statement
Factors and the Participants age at Separation from Service.
Section 4.04. Death Benefits. Upon death before retirement but at or after age 55,
or death after retirement but prior to the lump sum payment of the Participants Conditional
Annuities benefit, the Participants Beneficiary shall be paid a lump sum equal to 30 times
(representing 30 months) the aggregate monthly amount payable under such Participants Conditional
Annuities if the Participant had been age 55 at death, increased by one-third of one month for each
full month by which the Participants age at death shall exceed age 55. If a Participant dies on
or after the date on which a lump sum payment of the Participants Conditional Annuities benefit
has been made, no further benefits are payable following the Participants death.
-19-
ARTICLE V. ADDITIONAL BENEFITS
Section 5.01. Additional Benefits for Certain Officers.
(a) This paragraph applies to a Participant who was the Companys Vice President, Corporate
Controller and Chief Accounting Officer on December 30, 2004. Such Participant shall be entitled to
an additional cash balance benefit or an additional pension equity benefit under this Plan. The
additional cash balance benefit shall be equal to the sum of the contribution credits accrued under
the Visteon Pension Plan, the Visteon Corporation Pension Parity Plan and Article III of this Plan
during the Participants first five years of service, and interest credits thereon. The additional
pension equity benefit shall be calculated by crediting the Participant with one additional year of
Credited Service or fraction thereof for each year of Credited Service or fraction thereof accrued
by the Participant under Article III of this Plan, not to exceed five additional years.
(b) This paragraph applies to a Participant who was the Companys Chief Operating Officer on
May 23, 2005. Such Participant shall be entitled to an additional cash balance benefit or an
additional pension equity benefit under this Plan. The additional cash balance benefit shall be
equal to the sum of the contribution credits accrued under the Visteon Pension Plan, the Visteon
Corporation Pension Parity Plan and Article III of this Plan, and interest credits thereon. The
additional pension equity benefit shall be calculated by crediting the Participant with one
additional year of Credited Service or fraction thereof for each year of Credited Service or
fraction thereof accrued by the Participant under Article III of this Plan. In addition, the
Participant shall be credited as of May 23, 2005 with an opening cash balance of $1,200,000.00
under Article III. Upon retirement, the Participants benefit under this Plan shall be adjusted
so that the Participants aggregate accrued benefit payable from all qualified and nonqualified
retirement plans upon retirement from the Company will not be less than the greater of the
actuarial equivalent value of (a) the aggregate benefit payable to the participant under the
Visteon Pension Plan, the Visteon Corporation Pension Parity Plan and this Plan minus the
$1,200,000.00 opening cash balance and interest credits attributable thereto or (b) the
$1,200,000.00 SERP opening cash balance plus interest credits accrued to the date of retirement.
The foregoing provisions will not apply if, prior to the fifth anniversary of the Participants
-20-
employment with the Company, the Company terminates the Participants employment for Cause
(termination due to Disability shall not be considered to be for Cause) or the Participant
terminates employment with the Company for other than Good Reason. The terms Cause, Disability and
Good Reason shall have the meanings assigned to such terms in the May 20, 2005 Letter Agreement
between the Participant and the Company.
(c) This paragraph applies to a Participant who was the Companys Senior Vice President, Human
Resources on December 14, 2006. Such Participant shall be entitled to an additional cash balance
benefit or an additional pension equity benefit under this Plan. The additional cash balance
benefit shall be equal to the sum of the contribution credits accrued under the Visteon Pension
Plan, the Visteon Corporation Pension Parity Plan and Article III of this Plan during the
Participants first five years of service, and interest credits thereon. The additional pension
equity benefit shall be calculated by crediting the Participant with one additional year of
Credited Service or fraction thereof for each year of Credited Service or fraction thereof accrued
by the Participant under Article III of this Plan, not to exceed five additional years.
(d) Any additional benefits under this Section that are calculated by reference to the benefit
formula described in Article II of this Plan shall be paid in accordance with Article II of this
Plan as if the benefits had been initially calculated under that Article. Similarly, any
additional benefits under this Section that are calculated by reference to the benefit formula
described in Article III of this Plan shall be paid in accordance with Article III of this Plan as
if the benefits had been initially calculated under that Article.
-21-
ARTICLE VI. EARNING OUT CONDITIONS
Section 6.01. Conditions Applicable to Continued Payment of Award.
(a) Anything herein contained to the contrary notwithstanding, the right of any Participant to
receive any benefit payment hereunder shall accrue only if, during the entire period ending with
the scheduled payment date, the Participant shall have earned out such payment by refraining from
engaging in any activity that is directly or indirectly in competition with any activity of the
Company or any subsidiary or affiliate thereof. The Committee shall have the sole and absolute
discretion to determine whether a Participants activities constitute competition with the Company,
and the Committee may promulgate such rules and regulations in this regard as it deems appropriate.
(b) In the event of a Participants nonfulfillment of the condition set forth in the
immediately preceding paragraph, no further payment shall be made to the Participant or the
Beneficiary; provided, however, that the nonfulfillment of such condition may at any time (whether
before, at the time of or subsequent to termination of employment) be waived in the following
manner:
|
(i) |
|
with respect to any such Participant who at any time shall have
been a member of the Board of Directors, the President, an Executive Vice
President, a Senior Vice President, a Vice President, the Treasurer, the
Controller or the Secretary of the Company, such waiver may be granted by the
Committee upon its determination that in its sole judgment there shall not have
been and will not be any substantial adverse effect upon the Company or any
subsidiary or affiliate thereof by reason of the nonfulfillment of such
condition; and |
|
|
(ii) |
|
with respect to any other such Participant, such waiver may be
granted by the Retirement Committee designated under the Visteon Pension Plan
upon its determination that in its sole judgment there shall not have been and
will not be any such substantial adverse effect. |
-22-
(c) Anything herein contained to the contrary notwithstanding, benefit payments shall not be
paid to or with respect to any person as to whom it has been determined that such person at any
time (whether before or subsequent to termination of employment) acted in a manner detrimental to
the best interests of the Company. Any such determination shall be made by (i) the Committee with
respect to any Participant who at any time shall have been a member of the Board of Directors, an
Executive Vice President, a Senior Vice President, a Vice President, the Treasurer, the Controller
or the Secretary of the Company, and (ii) the Retirement Committee designated under the Visteon
Pension Plan with respect to any other Participant, and shall apply to any amounts payable after
the date of the applicable committees action hereunder, regardless of whether the Participant has
commenced receiving benefit payments hereunder. Conduct which constitutes engaging in an activity
that is directly or indirectly in competition with any activity of the Company or any subsidiary or
affiliate thereof shall be governed by subsections (a) and (b) above and shall not be subject to
any determination under this subsection (c).
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ARTICLE VII. GENERAL PROVISIONS
Section 7.01. Administration and Interpretation.
(a) Subject to subsection (b) below, the Committee shall administer and interpret the Plan.
(b) Subject to such limits as the Committee may from time to time prescribe or such additional
or contrary delegations of authority as the Committee may prescribe, the Companys Director of
Compensation and Benefits may exercise any of the authority and discretion granted to the Committee
hereunder, provided that (i) the Director of Compensation and Benefits shall not be authorized to
amend the Plan, and (ii) the Director of Compensation and Benefits shall not exercise any authority
and responsibility with respect to non-ministerial matters affecting the participation in the Plan
by the Director of Compensation and Benefits. To the extent that the Director of Compensation and
Benefits is authorized to act on behalf of the Committee, any references herein to the Committee
shall be also be deemed references to the Director of Compensation and Benefits.
(c) The Committee may adopt and modify rules and regulations relating to the Plan as it deems
necessary or advisable for the administration of the Plan. The Committee shall have the
discretionary authority to interpret and construe the Plan, to make benefit determination (and
benefit adjustments) under the Plan, and to take all other actions that may be necessary or
appropriate for the administration of the Plan. Each determination, interpretation or other action
made or taken pursuant to the provisions of the Plan by the Committee shall be final and shall be
binding and conclusive for all purposes and upon all persons, including, but without limitation
thereto, the Company, its stockholders, the Participating Employers, the directors, officers, and
employees of the Company or a Participating Employer, the Plan participants, and their respective
successors in interest.
Section 7.02. Restrictions to Comply with Applicable Law. Notwithstanding any other
provision of the Plan, the Company shall have no liability to make any payment under the Plan
unless such delivery or payment would comply with all applicable laws and the applicable
requirements of any securities exchange or similar entity.
-24-
Section 7.03. Deductions and Offsets. Anything contained in the Plan
notwithstanding, a Participating Employer may deduct from any distribution hereunder, at the time
payment is otherwise due and payable under the Plan, all amounts owed to the Company or a
Participating Employer by the Participant for any reason, or the Company may offset any amounts
owing to it or an Affiliate by the Participant for any reason against the Participants benefit,
whether or not the benefit is then payable, up to the maximum amount that may be offset without
violating Code Section 409A.
Section 7.04. Tax Withholding. A Participating Employer shall withhold from any
benefit payment amounts required to be withheld for Federal and State income and other applicable
taxes. No later than the date as of which an amount first becomes includible in the income of the
Participant for employment tax purposes, the Participant shall pay or make arrangements
satisfactory to the Company regarding the payment of any such tax. In addition, if prior to the
date of distribution of any amount hereunder, the Federal Insurance Contributions Act (FICA) tax
imposed under Code Sections 3101, 3121(a) and 3121(v)(2), where applicable, becomes due, the
Company may direct that the Participants benefit be reduced to reflect the amount needed to pay
the Participants portion of such tax.
Section 7.05. Claims Procedure.
(a) Claim for Benefits. Any Participant or Beneficiary (hereafter referred to as the
claimant) under this Plan who believes he or she is entitled to benefits under the Plan in an
amount greater than the amount received may file, or have his or her duly authorized representative
file, a claim with the Committee. not later than ninety (90) days after the payment (or first
payment) is made (or should have been made) in accordance with the terms of the Plan or in
accordance with regulations issued by the Secretary of the Treasury under Code Section 409A. Any
such claim shall be filed in writing stating the nature of the claim, and the facts supporting the
claim, the amount claimed and the name and address of the claimant. The Committee shall consider
the claim and answer in writing stating whether the claim is granted or denied. If the Committee
denies the claim, it shall deliver, within one hundred thirty-five (135) days of the date the first
payment was made (or should have been made) in accordance with the terms of the Plan or in
accordance with regulations issued by the Secretary of the Treasury under Code Section
-25-
409A, a written notice of such denial decision. The written decision shall be within 90 days
of receipt of the claim by the Committee (or 180 days if additional time is needed and the claimant
is notified of the extension, the reason therefor and the expected date of determination prior to
commencement of the extension). If the claim is denied in whole or in part, the claimant shall be
furnished with a written notice of such denial containing (i) the specific reasons for the denial,
(ii) a specific reference to the Plan provisions on which the denial is based, (iii) an explanation
of the Plans appeal procedures set forth in subsection (b) below, (iv) a description of any
additional material or information which is necessary for the claimant to submit or perfect an
appeal of his or her claim and (v) an explanation of the Participants or Beneficiarys right to
bring suit under ERISA following an adverse determination upon appeal.
(b) Appeal. If a claimant wishes to appeal the denial of his or her claim, the
claimant or his or her duly authorized representative shall file a written notice of appeal to the
Committee within 180 days after the payment (or first payment) is made (or should have been made)
in accordance with the terms of the Plan or in accordance with regulations issued by the Secretary
of the Treasury under Code Section 409A In order that the Committee may expeditiously decide such
appeal, the written notice of appeal should contain (i) a statement of the ground(s) for the
appeal, (ii) a specific reference to the Plan provisions on which the appeal is based, (iii) a
statement of the arguments and authority (if any) supporting each ground for appeal, and (iv) any
other pertinent documents or comments which the appellant desires to submit in support of the
appeal. The Committee shall decide the appellants appeal within 60 days of its receipt of the
appeal (or 120 days if additional time is needed and the claimant is notified of the extension, the
reason therefore and the expected date of determination prior to commencement of the extension).
The Committees written decision shall contain the reasons for the decision and reference to the
Plan provisions on which the decision is based. If the claim is denied in whole or in part, such
written decision shall also include notification of the claimants right to bring suit for benefits
under Section 502(a) of ERISA and the claimants right to obtain, upon request and free of charge,
reasonable access to and copies of all documents, records or other information relevant to the
claim for benefits.
-26-
Section 7.06. Participant Rights Unsecured.
(a) Unsecured Claim. The right of a Participant or his or her Beneficiary to receive
a distribution hereunder shall be an unsecured claim, and neither the Participant nor any
Beneficiary shall have any rights in or against any amount credited to his or her Account or any
other specific assets of a Participating Employer. The right of a Participant or Beneficiary to
the payment of benefits under this Plan shall not be assigned, encumbered, or transferred, except
by will or the laws of descent and distribution. The rights of a Participant hereunder are
exercisable during the Participants lifetime only by the Participant or the Participants guardian
or legal representative.
(b) Contractual Obligation. The Company may authorize the creation of a trust or
other arrangements to assist it in meeting the obligations created under the Plan. However, any
liability to any person with respect to the Plan shall be based solely upon any contractual
obligations that may be created pursuant to the Plan. No obligation of a Participating Employer
shall be deemed to be secured by any pledge of, or other encumbrance on, any property of a
Participating Employer. Nothing contained in this Plan and no action taken pursuant to its terms
shall create or be construed to create a trust of any kind, or a fiduciary relationship between a
Participating Employer and any Participant or Beneficiary, or any other person.
Section 7.07. No Contract of Employment. The Plan is an expression of the Companys
present policy with respect to Company executives who meet the eligibility requirements set forth
herein. The Plan is not a contract of employment, nor does it provide any Participant with a right
to continue in the employment of the Company or any other entity. No Participant, Beneficiary or
other person shall have any legal or other right to any benefit payments except in accordance with
the terms of the Plan, and then only while the Plan is in effect and subject to the Companys right
to amend or terminate the Plan as provided in Section 7.07 below.
Section 7.08. Amendment or Termination. There shall be no time limit on the duration
of the Plan. However, the Company, by action of the Senior Vice President, Human Resources, may at
any time and for any reason, amend or terminate the Plan; provided that the Committee shall have
the exclusive amendment authority with respect to any amendment that, if adopted, would increase
the benefit payable to the Senior Vice President, Human Resources by more than
-27-
a de minimis amount; and provided further, that any termination of the Plan shall be
implemented in accordance with the requirements of Code Section 409A. Any Plan amendment or
termination may reduce or eliminate a Participants benefit under the Plan, including, without
limitation, an amendment to eliminate future benefit payments for some or all Participants, whether
or not in pay status at the time such action is taken.
Section 7.09. Administrative Expenses. Costs of establishing and administering the
Plan will be paid by the Participating Employers.
Section 7.10. No Assignment of Benefits. No rights or benefits under the Plan shall,
except as otherwise specifically provided by law, be subject to assignment (except for the
designation of beneficiaries pursuant to subsection (b) of Section 1.01), nor shall such rights or
benefits be subject to attachment or legal process for or against a Participant or his or her
Beneficiary.
Section 7.11. Successors and Assigns. This Plan shall be binding upon and inure to
the benefit of the Participating Employers, their successors and assigns and the Participants and
their heirs, executors, administrators, and legal representatives.
Section 7.12. Designated Payment Dates. Whenever a provision of this Plan specifies
payment to be made on a particular date, the payment will be treated as having been made on the
specified date if it is made as soon as practicable following the designated date, provided that
(a) the Participant is not permitted, either directly or indirectly, to designate the taxable year
of payment and (b) payment is made no later than the 15th day of the third calendar
month following the designated payment date.
Section 7.13. Permitted Delay in Payment. If a distribution required under the terms
of this Plan would jeopardize the ability of the Company or of an Affiliate to continue as a going
concern, the Company or the Affiliate shall not be required to make such distribution. Rather, the
distribution shall be delayed until the first date that making the distribution does not jeopardize
the ability of the Company or of an Affiliate to continue as a going concern. Further, if any
distribution pursuant to the Plan will violate the terms Federal securities law or any other
-28-
applicable law, then the distribution shall be delayed until the earliest date on which making
the distribution will not violate such law.
Section 7.14. Disregard of Six Month Delay. Notwithstanding anything herein to the
contrary, if at the time of a Participants Separation from Service, the stock of the Company or
any other related entity that is considered a service recipient within the meaning of Section
409A of the Code is not traded on an established securities market or otherwise, then the provision
of the Plan requiring that payments be delayed for six months following Separation from Service
shall cease to apply. In such event, in the case of a benefit payment of which is triggered by the
Participants Separation from Service, the lump sum payment of a Participants benefit shall be
made within 90 days following the Participants Separation from Service.
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VISTEON CORPORATION
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/s/ Dorothy L. Stephenson
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Dorothy L. Stephenson |
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Senior Vice President, Human Resources
October 5, 2010
Date |
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-29-
exv10w13
Exhibit 10.13
VISTEON CORPORATION
2010 PENSION PARITY PLAN
(Effective October 5, 2010)
VISTEON CORPORATION
2010 PENSION PARITY PLAN
The Visteon Corporation 2010 Pension Parity Plan (the Plan) has been adopted to promote the
best interests of Visteon Corporation (the Company) and the stockholders of the Company by
attracting and retaining key management employees possessing a strong interest in the successful
operation of the Company and its subsidiaries or affiliates and encouraging their continued
loyalty, service and counsel to the Company and its subsidiaries or affiliates. The Plan will
become effective without action of the Board of Directors on the second business day after
confirmation of the Companys plan of reorganization pursuant to Chapter 11 of the United States
Bankruptcy Code on which: (a) no stay of the plan confirmation order is in effect and (b) all
conditions precedent to the plan of reorganization have been satisfied or waived (the Effective
Date).
-1-
ARTICLE I. DEFINITIONS AND CONSTRUCTION
Section 1.01. Definitions.
The following terms have the meanings indicated below unless the context in which the term is
used clearly indicates otherwise:
(a) Affiliate: A person or legal entity that directly or indirectly, through one or more
intermediaries, controls or is controlled by, or is under common control, with the Company, within
the meaning of Code Sections 414(b) and (c); provided that Code Sections 414(b) and (c) shall be
applied by substituting at least fifty percent (50%) for at least eighty percent (80%) each
place it appears therein.
(b) Board: The Board of Directors of the Company.
(c) Beneficiary: The person or entity designated by a Participant to be his beneficiary for
purposes of this Plan (subject to such limitations as to the classes and number of beneficiaries
and contingent beneficiaries and such other limitations as the Committee may prescribe). A
Participants designation of Beneficiary shall be valid and in effect only if a properly executed
designation, in such form as the Committee shall prescribe, is filed and received by the Committee
or its delegate prior to the Participants death. If a Participant designates his or her spouse as
Beneficiary, such designation automatically shall become null and void on the date of the
Participants divorce or legal separation from such spouse. If a valid designation of Beneficiary
is not in effect at the time of the Participants death, the Participants surviving spouse, or if
there is no surviving spouse, the estate of the Participant, shall be deemed to be the sole
Beneficiary. If multiple beneficiaries have been designated and one or more of the Beneficiaries
predecease the Participant, then upon the Participants death, payment shall be made exclusively to
the surviving Beneficiary or Beneficiaries unless the Participants designation specifies an
alternate method of distribution. Further, in the event that the Committee is uncertain as to the
identity of the Participants Beneficiary, the Committee may deem the estate of the Participant to
be the sole Beneficiary. Beneficiary designations shall be in writing (or in such other form as
authorized by the Committee for this purpose, which may include on-line
-2-
designations), shall be filed with the Committee or its delegate, and shall be in such form as
the Committee may prescribe for this purpose.
(d) Code: The Internal Revenue Code of 1986, as interpreted by regulations and rulings issued
pursuant thereto, all as amended and in effect from time to time. Any reference to a specific
provision of the Code shall be deemed to include reference to any successor provision thereto.
(e) Committee: The Organization and Compensation Committee of the Board.
(f) Company: Visteon Corporation, or any successor thereto.
(g) Effective Date: The second business day after confirmation of the Companys plan of
reorganization pursuant to Chapter 11 of the United States Bankruptcy Code on which: (a) no stay of
the plan confirmation order is in effect and (b) all conditions precedent to the plan of
reorganization have been satisfied or waived.
(h) Employee: A person who, on or after the Effective Date, is (i) classified by a
Participating Employer as a common law employee enrolled on the active employment rolls of the
Participating Employer, and (ii) regularly employed by the Participating Employer on a salaried
basis (as distinguished from an individual receiving a pension, retirement allowance, severance
pay, retainer, commission, fee under a contract or other arrangement, or hourly, piecework or other
wage).
(i) ERISA: The Employee Retirement Income Security Act of 1974, as interpreted by regulations
and rulings issued pursuant thereto, all as amended and in effect from time to time. Any reference
to a specific provision of ERISA shall be deemed to include reference to any successor provision
thereto.
(j) Limitations: The limitations on benefits and/or contributions imposed on qualified plan
by Section 415 and Section 401(a) (17) of the Code.
(k) Participant: An Employee who satisfies the participation requirements of Section 2.01
and, where the context so requires, a former Employee entitled to receive a benefit hereunder.
-3-
(l) Participating Employer: The Company, Visteon Global Technologies, Inc., and each other
subsidiary a majority of the voting stock of which is owned directly or indirectly by the Company,
or a limited liability company a majority of the membership interest of which is owned directly or
indirectly by the Company, that with the consent of the Committee, participates in the Plan for the
benefit of one or more Participants in its employ.
(m) Plan: The 2010 Visteon Corporation Pension Parity Plan, as amended and in effect from
time to time.
(n) Retirement Plan: The Visteon Pension Plan (including both the Contributory and
Noncontributory Service component and the Balance Plus component), the Salaried Retirement Plan of
Visteon Systems, LLC (for periods prior to its merger into the Visteon Pension Plan), or such other
qualified defined benefit retirement plans as the Committee may designate. The Retirement Plan
includes the following components:
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(i) |
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Contributory/Noncontributory Service Program. The portion of
the Retirement Plan, excluding the Cash Balance Program. |
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(ii) |
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Cash Balance Program. The portions of the Retirement Plan that
calculate benefit accruals using a cash balance and/or pension equity formula. |
(o) Separation from Service: The date on which a Participant terminates employment from the
Company and all Affiliates, provided that (1) such termination constitutes a separation from
service for purposes of Code Section 409A, and (2) the facts and circumstances indicate that the
Company (or the Affiliate) and the Participant reasonably believed that the Participant would
perform no further services (either as an employee or as an independent contractor) for the Company
(or the Affiliate) after the Participants termination date, or believed that the level of services
the Participant would perform for the Company (or the Affiliate) after such date (either as an
employee or as an independent contractor) would permanently decrease such that the Participant
would be providing insignificant services to the Company or an Affiliate. For this purpose, a
Participant is deemed to provide insignificant services to the Company or an Affiliate, and thus to
have incurred a bona fide Separation from Service, if the Participant provides services at an
annual rate that is less than twenty percent (20%) of the services rendered by such
-4-
Participant, on average, during the immediately preceding thirty-six (36) months of employment
(or his or her actual period of employment if less). Notwithstanding the foregoing, if a
Participant takes a leave of absence from the Company or an Affiliate for the purpose of military
leave, sick leave or other bona fide leave of absence, the Participants employment will be deemed
to continue for the first six (6) months of the leave of absence, or if longer, for so long as the
Participants right to reemployment is provided either by statute or by contract; provided that if
the leave of absence is due to a medically determinable physical or mental impairment that can be
expected to result in death or last for a continuous period of not less than six (6) months, where
such impairment causes the Participant to be unable to perform the duties of his or her position of
employment or any substantially similar position of employment, the leave may be extended for up to
twenty-nine (29) months without causing a Separation from Service.
Section 1.02. Construction and Applicable Law.
(a) Wherever any words are used in the masculine, they shall be construed as though they were
used in the feminine in all cases where they would so apply; and wherever any words are use in the
singular or the plural, they shall be construed as though they were used in the plural or the
singular, as the case may be, in all cases where they would so apply. Titles of articles and
sections are for general information only, and the Plan is not to be construed by reference to such
items.
(b) This Plan is intended to be a plan of deferred compensation maintained for a select group
of management or highly compensated employees as that term is used in ERISA, and shall be
interpreted so as to comply with the applicable requirements thereof. In all other respects, the
Plan is to be construed and its validity determined according to the laws of the State of Michigan
to the extent such laws are not preempted by federal law. In case any provision of the Plan is
held illegal or invalid for any reason, the illegality or invalidity will not affect the remaining
parts of the Plan, but the Plan shall, to the extent possible, be construed and enforced as if the
illegal or invalid provision had never been inserted.
-5-
ARTICLE II. PARTICIPATION
Section 2.01. Eligibility.
(a) An Employee who participates in a Retirement Plan and whose benefit thereunder is
restricted by the Limitations shall be eligible to participate in the Plan; provided, however, that
the Committee may restrict eligibility as it deems necessary to ensure that the Plan continues to
be maintained for a select group of management or highly compensated employees as that term is used
in ERISA.
(b) Notwithstanding anything in subsection (a) to the contrary, participation in the Plan is
limited to United States citizens (whether residing in or outside of the United States) or citizens
of another country permanently assigned to and residing in the United States, such that citizens of
other countries who are not permanently assigned to the United States, regardless of whether or not
they are on the United States payroll, are not eligible to participate in the Plan.
-6-
ARTICLE III. PENSION PARITY BENEFIT
Section 3.01. Calculation of Pension Parity Benefit.
The Pension Parity Benefit, when expressed in the form of a monthly life annuity with no
survivor benefits commencing at the Participants attainment of age sixty-five (or if later, the
Participants age at Separation from Service), shall equal the difference between (i) the benefit
that the Participant would have accumulated under the Retirement Plan if such benefit were
calculated without regard to the Limitations, and (ii) the benefit actually accumulated by the
Participant under the Retirement Plan.
Section 3.02. Payment of Pension Parity Benefit.
Pension Parity Benefit payments shall be paid to the Participant in the form of a single lump
sum payment on the first day of the seventh month following the Participants Separation from
Service. The amount of the lump sum payment will be equal to the present value of the monthly
amount calculated under Section 3.01 above, with such present value determined by using the
discount rates and mortality tables that are used to calculate the obligations for the Plan as
disclosed in the Companys audited financial statements for the year ended immediately prior to the
year in which occurs the Participants Separation from Service or, in the case of a Participant
whose Separation from Service occurs prior to December 31, 2010, as disclosed in the reorganized
Companys financial statements as of the business day prior to the Effective Date (the Financial
Statement Factors). The lump sum present value is calculated in three ways, and the Participant is
entitled to the greatest of the three. Under the first calculation, the lump sum is equal to the
sum of (i) the lump sum value determined when the monthly amount calculated under Section 3.01 is
multiplied by an immediate annuity factor that is determined by reference to the Financial
Statement Factors and the Participants age at Separation from Service, and (ii) six months of
interest, at the rate determined by reference to the Financial Statement Factors, on the amount
determined under clause (i). Under the second calculation, the lump sum is the amount determined
when the monthly amount calculated under Section 3.01 is multiplied by an immediate annuity factor
that is determined by reference to the Financial Statement Factors and the Participants age at
Separation from Service plus six months. Under the third calculation, which is applicable only if
the Participant will be under age 55 at the
-7-
benefit payment date, the lump sum is the amount determined when the monthly amount calculated
under Section 3.01 is multiplied by a deferred to age 55 annuity factor that is determined by
reference to the Financial Statement Factors and the Participants age at Separation from Service.
Section 3.03. Death Benefits.
(a) Death During Employment. If a Participant dies on or after the Effective Date but
during employment:
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With respect to the Participants employment that is covered
under the Contributory/Noncontributory Service Program, a death benefit will be
paid under this Plan if and only if the Participant is survived by a spouse who
is entitled to a survivor annuity under the Contributory/Noncontributory
Service Program with respect to the same period of service. If a benefit is
payable, it shall be paid to the same spouse who is entitled to the survivor
annuity under the Retirement Plan, although payment of the benefit under this
Plan will be made in the form of a single lump sum payment on the first day of
the seventh month following the Participants death. The amount of the lump
sum payment will be equal to the present value of the difference between (i)
the monthly survivor annuity benefit that would have been payable to the spouse
with respect to the Participants employment covered under the
Contributory/Noncontributory Service Program if the Participants benefit (and
the spouses survivor annuity benefit) were calculated without regard to the
Limitations, and (ii) the monthly survivor annuity benefit actually payable to
the spouse with respect to the Participants participation in the
Contributory/Noncontributory Service Program. For purposes of this
calculation, the monthly survivor annuity benefit shall be calculating by
assuming commencement of the survivor annuity benefit on the first day of the
month following the date on which the Participant would have attained age
sixty-five (or if the Participant had already attained sixty-five years of age,
the first day of the month following Participants death) The present |
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value will be determined by using the discount rates and mortality tables
that were used to calculate the obligations for the Retirement Plan as
disclosed in the Companys audited financial statements for the year ended
immediately prior to the year in which the distribution to the spouse is
paid, or, with respect to distributions to a spouse prior to December 31,
2010, as disclosed in the reorganized Companys financial statements as of
the business day prior to the Effective Date. |
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(ii) |
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With respect to the Participants employment that is covered
under the Cash Balance Program, a death benefit will be paid to the
Participants Beneficiary. Payment will be made in the form of a single lump
sum payment on the first day of the seventh month following the Participants
death. The amount of the lump sum payment will be equal to the difference
between (i) the lump sum death benefit that would have been payable with
respect to the Participants employment covered under the Cash Balance Program
if the Participants benefit (and the Beneficiarys survivor benefit) were
calculated without regard to the Limitations, and (ii) the lump sum death
benefit actually payable with respect to the Participants participation in the
Cash Balance Program, using the Financial Factors defined in section 3.02
above. |
(b) Death After Termination But Prior to Benefit Payment. In the event a Participant
who terminates from employment with an entitlement to a benefit dies prior to payment of such
benefit, the benefit shall be paid to the Participants Beneficiary in the form of single sum
payment (calculated in accordance with Section 3.02) on the first day of the seventh month
following the Participants Separation from Service.
(c) Death After Benefit Payment. If a Participant dies on or after the date on which
a lump sum payment of the Participants Pension Parity Benefit has been made, no further benefits
are payable following the Participants death.
-9-
Section 3.04. Pension Parity Calculation Is For Record Keeping Purposes Only.
The Pension Parity Benefit, and the record keeping procedures described herein serve solely as
a device for determining the amount of benefits accumulated by a Participant under the Plan, and
shall not constitute or imply an obligation on the part of a Participating Employer to fund such
benefits. In any event, a Participating Employer may, in its discretion, set aside assets equal to
part or all of such benefit and invest such assets in Visteon common stock, life insurance or any
other investment deemed appropriate. Any such assets shall be and remain the sole property of the
Participating Employer, and a Participant shall have no proprietary rights of any nature whatsoever
with respect to such assets.
-10-
ARTICLE IV. GENERAL PROVISIONS
Section 4.01. Administration.
(a) Subject to subsection (b) below, the Committee shall administer and interpret the Plan.
To the extent necessary to comply with applicable conditions of Rule 16b-3, the Committee shall
consist of not less than two members of the Board, each of whom is also a director of the Company
and qualifies as a non-employee director for purposes of Rule 16b-3. If at any time the
Committee shall not be in existence or not be composed of members of the Board who qualify as
non-employee directors, then all determinations affecting Participants who are subject to Section
16 of the Exchange Act shall be made by the full Board, and all determinations affecting other
Participants shall be made by the Board or an officer appointed by the Board.
(b) Subject to such limits as the Committee may from time to time prescribe or such additional
or contrary delegations of authority as the Committee may prescribe, the Companys Director of
Compensation and Benefits may exercise any of the authority and discretion granted to the Committee
hereunder, provided that (i) the Director of Compensation and Benefits shall not be authorized to
amend the Plan, (ii) the Director of Compensation and Benefits shall not exercise authority and
responsibility with respect to non-ministerial functions that relate to the participation by
Participants who are subject to Section 16 of the Exchange Act at the time any such delegated
authority or responsibility otherwise would be exercised, that relates to the participation in the
Plan by the Director of Compensation and Benefits. To the extent that the Director of Compensation
and Benefits is authorized to act on behalf of the Committee, any references herein to the
Committee shall be also be deemed references to the Director of Compensation and Benefits.
(c) The Committee (or where applicable in accordance with subsection (b) above, the Director
of Compensation and Benefits) may adopt and modify rules and regulations relating to the Plan as it
deems necessary or advisable for the administration of the Plan. The Committee (or where
applicable in accordance with subsection (b) above, the Director of Compensation and Benefits)
shall have the discretionary authority to interpret and construe the Plan, to make benefit
determinations under the Plan, and to take all other actions that may be necessary or appropriate
-11-
for the administration of the Plan. Each determination, interpretation or other action made
or taken pursuant to the provisions of the Plan by the Committee shall be final and shall be
binding and conclusive for all purposes and upon all persons, including, but without limitation
thereto, the Company, its stockholders, the Participating Employers, the directors, officers, and
employees of the Company or a Participating Employer, the Plan participants, and their respective
successors in interest.
Section 4.02. Restrictions to Comply with Applicable Law.
Notwithstanding any other provision of the Plan, the Company shall have no liability to make
any payment under the Plan unless such delivery or payment would comply with all applicable laws
and the applicable requirements of any securities exchange or similar entity.
Section 4.03. Claims Procedures.
(a) Claim for Benefits. Any Participant or Beneficiary (hereafter referred to as the
claimant) under this Plan who believes he or she is entitled to benefits under the Plan in an
amount greater than the amount received may file, or have his or her duly authorized representative
file, a claim with the Committee, not later than ninety (90) days after the payment (or first
payment) is made (or should have been made) in accordance with the terms of the Plan or in
accordance with regulations issued by the Secretary of the Treasury under Code Section 409A. Any
such claim shall be filed in writing stating the nature of the claim, and the facts supporting the
claim, the amount claimed and the name and address of the claimant. The Committee shall consider
the claim and answer in writing stating whether the claim is granted or denied. If the Committee
denies the claim, it shall deliver, within one hundred thirty-five (135) days of the date the first
payment was made (or should have been made) in accordance with the terms of the Plan or in
accordance with regulations issued by the Secretary of the Treasury under Code Section 409A, a
written notice of such denial decision. If the claim is denied in whole or in part, the claimant
shall be furnished with a written notice of such denial containing (i) the specific reasons for the
denial, (ii) a specific reference to the Plan provisions on which the denial is based, (iii) an
explanation of the Plans appeal procedures set forth in subsection (b) below, (iv) a description
of any additional material or information which is necessary for the claimant to submit or perfect
an
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appeal of his or her claim, and (v) an explanation of the Participants or Beneficiarys right
to bring suit under ERISA following an adverse determination upon appeal.
(b) Appeal. If a claimant wishes to appeal the denial of his or her claim, the
claimant or his or her duly authorized representative shall file a written notice of appeal to the
Committee within 180 days after the payment (or first payment) is made (or should have been made)
in accordance with the terms of the Plan or in accordance with regulations issued by the Secretary
of the Treasury under Code Section 409A. In order that the Committee may expeditiously decide such
an appeal, (ii) a specific reference to the Plan provisions on which the appeal is based, (iii) a
statement of the arguments and authority (if any) supporting each ground for appeal, and (iv) any
other pertinent documents or comments which the appellant desires to submit in support of the
appeal. The Committee shall decide the appellants appeal within 60 days of its receipt of the
appeal (or 120 days if additional time is needed and the claimant is notified of the extension, the
reason therefor and the expected date of determination prior to the commencement of the extension).
The Committees written decision shall contain the reasons for the decision and reference to the
Plan provisions on which the decision is based. If the claim is denied in whole or in part, such
written decision shall also include notification of the claimants right to bring suit for benefits
under Section 502(a) of ERISA and the claimants right to obtain, upon request and free of charge,
reasonable access to and copies of all documents, records or other information relevant to the
claim for benefits.
Section 4.04. Participant Rights Unsecured.
(a) Unsecured Claim. The right of a Participant or his beneficiary to receive a
distribution hereunder shall be an unsecured claim, and neither the Participant nor any beneficiary
shall have any rights in or against any specific assets of a Participating Employer. The right of
a Participant or beneficiary to the payment of benefits under this Plan shall not be assigned,
encumbered, or transferred, except by will or the laws of descent and distribution. The rights of
a Participant hereunder are exercisable during the Participants lifetime only by him or his
guardian or legal representative.
(b) Contractual Obligation. The Company may authorize the creation of a trust or
other arrangements to assist it in meeting the obligations created under the Plan. However, any
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liability to any person with respect to the Plan shall be based solely upon any contractual
obligations that may be created pursuant to the Plan. No obligation of a Participating Employer
shall be deemed to be secured by any pledge of, or other encumbrance on, any property of a
Participating Employer. Nothing contained in this Plan and no action taken pursuant to its terms
shall create or be construed to create a trust of any kind, or a fiduciary relationship between a
Participating Employer and any Participant or beneficiary, or any other person.
Section 4.05. Tax Withholding.
The Company shall withhold from any benefit payment amounts required to be withheld for
Federal and State income and other applicable taxes. No later than the date as of which an amount
first becomes includible in the income of the Participant for employment tax purposes, the
Participant shall pay or make arrangements satisfactory to the Company regarding the payment of any
such tax. In addition, if prior to the date of distribution of any amount hereunder, the Federal
Insurance Contributions Act (FICA) tax imposed under Code Sections 3101, 3121(a) and 3121(v)(2),
where applicable, becomes due, the Company may direct that the Participants benefit be reduced to
reflect the amount needed to pay the Participants portion of such tax.
Section 4.06. Deductions and Offsets.
Anything contained in the Plan notwithstanding, a Participating Employer may deduct from any
distribution hereunder, at the time payment is otherwise due and payable under the Plan, all
amounts owed to the Company or a Participating Employer by the Participant for any reason, or the
Company may offset any amounts owing to it or an Affiliate by the Participant for any reason
against the Participants benefit, whether or not the benefit is then payable, up to the maximum
amount that may be offset without violating Code Section 409A.
Section 4.07. Amendment or Termination of Plan.
There shall be no time limit on the duration of the Plan. However, the Company, by action of
the Senior Vice President, Human Resources, may at any time and for any reason, amend or terminate
the Plan; provided that the Committee shall have the exclusive amendment authority with respect to
any amendment that, if adopted, would increase the benefit payable to
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the Senior Vice President, Human Resources by more than a de minimis amount; and provided
further, that any termination of the Plan shall be implemented in accordance with the requirements
of Code Section 409A. Any Plan amendment or termination may reduce or eliminate a Participants
benefit under the Plan, including, without limitation, an amendment to eliminate future benefit
payments for some or all Participants, whether or not in pay status at the time such action is
taken.
Section 4.08. Effect of Inimical Conduct.
Anything herein contained to the contrary notwithstanding, benefit payments shall not be paid
to or with respect to any person as to whom it has been determined that such person at any time
(whether before or subsequent to termination of employment) acted in a manner detrimental to the
best interests of the Company. Any such determination shall be made by (i) the Committee with
respect to any Participant who at any time shall have been a member of the Board of Directors, an
Executive Vice President, a Senior Vice President, a Vice President, the Treasurer, the Controller
or the Secretary of the Company, and (ii) the Retirement Committee designated under the Visteon
Pension Plan with respect to any other Participant, and shall apply to any amounts payable after
the date of the applicable committees action hereunder, regardless of whether the Participant has
commenced receiving benefit payments hereunder.
Section 4.09. No Assignment of Benefits.
No rights or benefits under the Plan shall, except as otherwise specifically provided by law,
be subject to assignment nor shall such rights or benefits be subject to attachment or legal
process for or against a Participant or his or her beneficiary.
Section 4.10. Administrative Expenses.
Costs of establishing and administering the Plan will be paid by the Participating Employers.
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Section 4.11. Successors and Assigns.
This Plan shall be binding upon and inure to the benefit of the Participating Employers, their
successors and assigns and the Participants and their heirs, executors, administrators, and legal
representatives.
Section 4.12. Designated Payment Dates.
Whenever a provision of this Plan specifies payment to be made on a particular date, the
payment will be treated as having been made on the specified date if it is made as soon as
practicable following the designated date, provided that (a) the Participant is not permitted,
either directly or indirectly, to designate the taxable year of payment and (b) payment is made no
later than the 15th day of the third calendar month following the designated payment
date.
Section 4.13. Permitted Delay in Payment.
If a distribution required under the terms of this Plan would jeopardize the ability of the
Company or of an Affiliate to continue as a going concern, the Company or the Affiliate shall not
be required to make such distribution. Rather, the distribution shall be delayed until the first
date that making the distribution does not jeopardize the ability of the Company or of an Affiliate
to continue as a going concern. Further, if any distribution pursuant to the Plan will violate the
terms of Federal securities law or any other applicable law, then the distribution shall be delayed
until the earliest date on which making the distribution will not violate such law.
Section 4.14. Disregard of Six Month Delay.
Notwithstanding anything herein to the contrary, if at the time of a Participants Separation
from Service, the stock of the Company or any other related entity that is considered a service
recipient within the meaning of Section 409A of the Code is not traded on an established
securities market or otherwise, then the provision of the Plan requiring that payments be delayed
for six months following Separation from Service shall cease to apply. In such event,
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in the case of a benefit payment of which is triggered by the Participants Separation from
Service, the lump sum payment of a Participants benefit shall be made within 90 days following the
Participants Separation from Service.
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VISTEON CORPORATION
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/s/ Dorothy L. Stephenson
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Dorothy L. Stephenson |
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Senior Vice President, Human Resources
October 5, 2010
Date |
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exv10w14
Exhibit 10.14
2010 VISTEON EXECUTIVE SEVERANCE PLAN
Effective October 5, 2010
2010 VISTEON EXECUTIVE SEVERANCE PLAN
ARTICLE I. PURPOSE
Section 1.01. Purpose Statement.
Visteon Corporation (the Company) has developed the 2010 Visteon Executive Severance Plan
(the Plan) to provide severance benefits to eligible officers of the Company and its affiliates
whose employment with the Company or affiliate is involuntarily terminated under certain
circumstances. The Plan is an expression of the Companys present policy with respect to severance
benefits for Executives who meet the eligibility requirements set forth herein; it is not a part of
any contract of employment. It is intended to comply with ERISA and all other relevant laws. The
Plan became effective October 5, 2010 pursuant to the Companys confirmed plan of reorganization
pursuant to Chapter 11 of the United States Bankruptcy Code, without further action by the Company
or its Board of Directors.
1
ARTICLE II. DEFINITIONS
Section 2.01. Definitions.
The following words and phrases, when used in this document, shall have the following
meanings, unless the context clearly indicates otherwise:
(a) Base Salary means Executives annual base rate of pay in effect at his or her
Termination Date, excluding bonuses, one-time payments, incentives, and other awards that are not
regularly paid throughout the year. The Plan Administrators determination of the Executives Base
Salary shall be final and conclusive.
(b) Company means Visteon Corporation, or any successor thereto.
(c) ERISA means the Employee Retirement Income Security Act of 1974, and the rulings and
regulations promulgated thereunder, all as amended and in effect from time to time.
(d) Executive shall mean an officer of the Company elected by the Board of Directors of the
Company who is enrolled on the U.S. payroll of the Company or a subsidiary of the Company.
(e) Plan Administrator means the Organization and Compensation Committee of the Board of
Directors of the Company.
(f) Release means a release and waiver of claims (including, if applicable, claims under the
Age Discrimination in Employment Act of 1967, as amended) that is in such form as the Plan
Administrator may prescribe and that an Executive executes for the benefit of the Company, Visteon
Systems, LLC, their respective affiliates, and their respective officers, directors, employees,
agents, predecessors, successors and assigns.
(g) Termination Date is the date on which an Executives employment with the Company and its
affiliates terminates.
2
ARTICLE III. AWARD OF SEVERANCE BENEFITS
Section 3.01. Award of Severance Pay.
Except as provided in Section 3.02 below, an Executive is eligible for a Basic Severance
Benefit under Section 4.01, and may qualify for an Enhanced Severance Benefit under Section 4.02,
if the Executives employment with the Company or a subsidiary of the Company is involuntarily
terminated by the Company or by a subsidiary of the Company. The Plan Administrator shall have
final and exclusive discretion to determine whether an Executives termination of employment is
involuntary.
Section 3.02. Exclusions.
The Plan Administrator shall not grant severance benefits to an Executive in any of the
following situations:
(a) The Executive voluntarily retires or resigns from employment;
(b) The Executives position is eliminated and the Executive is offered another position which
the Executive declines (unless the Plan Administrator has specifically authorized severance
benefits in accordance with the discretion granted to the Plan Administrator under Section 3.01
above);
(c) The Executive is terminated, replaced, laid off or placed on leave for reasons related to
absenteeism or inappropriate conduct;
(d) The Executive is terminated or separated for not returning, in a timely manner, from an
approved leave of absence;
(e) The Executives employment ends or is terminated because the Executive is physically or
otherwise unable to perform the essential functions of his or her position, with or without any
applicable reasonable accommodation;
(f) The Executives employment terminates while receiving or seeking (or in connection with a
condition or situation with respect to which the Executive has indicated an
3
intention to or is otherwise likely to seek) payments or benefits under a program, policy,
plan or a law that provides payments or benefits to an Executive unable to work because of illness,
injury or disability;
(g) The Executive is eligible to receive pay-in-lieu of notice, severance pay, termination pay
or any other form of separation pay under any law;
(h) The Executive is terminated in connection with the sale by the Company, or a subsidiary or
affiliate of the Company, of all or part of a division, plant, facility, operation, product line or
other unit, or the outsourcing of functions to a third party vendor, where the Executive is offered
employment with the purchaser, vendor or other transferee with a starting date within ninety (90)
days of the Executives Termination Date;
(i) The Executives employment is governed by an employment contract (in which case, the
employment contract, and not this Plan, shall govern the severance benefits, if any, to be provided
to the Executive); or
(j) The Executive is eligible for benefits under any other severance plan, exit incentive
plan, or reduction in force plan offered by the Company or a subsidiary or affiliate of the
Company.
4
ARTICLE IV. AMOUNT OF SEVERANCE BENEFIT
Section 4.01. Basic Severance Benefit.
The Basic Severance Benefit for any Executive who becomes so entitled shall be an amount equal
to four (4) weeks of Base Salary. Payment will be in a lump sum cash payment, after withholding of
applicable income and payroll taxes and other authorized withholdings. In addition, the Executive
will be eligible for the benefits described in Section 4.04 (a), (d) and (e).
Section 4.02. Enhanced Severance Benefit.
(a) In any case in which the Plan Administrator has authorized the payment of severance
benefits and the Executive provides a Release in a form acceptable to the Company, then in lieu of
the Basic Severance Benefit described in Section 4.01, the Executive shall receive an Enhanced
Severance Benefit. The Enhanced Severance Benefit is an amount equal to one (1) year of Base
Salary.
(b) The Enhanced Severance Benefit is paid as a lump sum cash payment, after withholding of
applicable income and payroll taxes and other authorized withholdings. In addition, the Executive
will be eligible for the benefits described in Section 4.04.
Section 4.03. Reduction of Benefits.
Benefits under Sections 4.01 or 4.02 will be reduced by the amount of any unpaid obligations
that the Executive owes to the Company, a subsidiary or affiliate of the Company.
Section 4.04. Other Continued Benefits.
(a) An Executive who is eligible to receive Basic Severance Benefits or Enhanced Severance
Benefits and who, on the Executives Termination Date, was covered under the group medical and/or
dental programs is eligible to continue such group medical and/or dental coverage in accordance
with the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA). If the
Executive elects to continue medical and dental coverage in accordance with COBRA and the Executive
is entitled to the Enhanced Severance Benefit under Section 4.02 the Company will pay, on the
Executives behalf, the COBRA premium
5
contribution for twelve (12) months (after which, the Executive may continue at his/her sole
expense in accordance with the requirements of COBRA). Company contributions will cease after
twelve (12) months or when the Executive becomes covered under another plan, whichever is earlier.
(b) The Company will provide professional career transition services to assist terminated
Executives entitled to the Enhanced Severance Benefit in the preparation for and execution of their
job search, which services may include career counseling, assessment of interests and skills,
development of job search tools such as resumes and cover letters, preparation of a job discovery
strategy, and interview skills coaching. The nature and scope of the career transition services,
and the providers through which such services will be offered, will be determined by the Plan
Administrator in its sole discretion. The Company will pay for these services for six (6) months
or until the Executive becomes employed, whichever is earlier.
(c) An Executive entitled to the Enhanced Severance Benefit shall receive the unexpended after
tax value of his or her Flex-Perqs account.
(d) An Executives outstanding awards under the Visteon Corporation 2004 Incentive Plan and
the Visteon Corporation 2010 Incentive Plan shall be governed by the terms and conditions of each
award or grant, and not by the terms of this Plan.
(e) An Executive who is eligible to receive retirement benefits under a retirement plan
maintained by the Company or a subsidiary may apply for and commence retirement benefits in
accordance with the terms of the applicable retirement plan. Retirement benefits are not governed
by the terms of this Plan.
6
ARTICLE V. PAYMENT OF BENEFITS
Section 5.01. Entitlement to Benefits.
An Executive becomes entitled to severance benefits under Article IV on the date that the
Executive has satisfied all of the requirements for receiving a severance benefit (including, if
applicable, the Executives execution of a Release and the expiration of any revocation period that
is provided in accordance with applicable law or such policies as may from time to time be adopted
by the Plan Administrator). All payments shall be subject to income tax withholding and other
appropriate deductions.
Section 5.02. Payment of Benefits
Cash benefits under the Plan are intended to constitute short-term deferrals that are exempt
from the requirements of Internal Revenue Code Section 409A. Accordingly, payment of the Basic
Severance Benefit under Section 4.01, the Enhanced Severance Benefit under Section 4.02, and the
unexpended after-tax value of the Flex-Perqs account, to the extent applicable to the Executive,
shall be completed by the later of (i) the fifteenth (15th) day of the third month following the
end of the first taxable year in which the Executive becomes entitled to benefits under the Plan,
or (ii) the fifteenth (15th) day of the third month following the end of the Companys first
taxable year in which the Executive becomes entitled to benefits under the Plan. The medical,
dental and career transition benefits to which the Executive may become entitled under Section 4.04
are also intended to be exempt from Internal Revenue Code Section 409A, and the Plan Administrator
(or its delegate) shall administer the Plan consistent with Internal Revenue Code Section 409A and
the requirements for exemption of such benefits. The Plan Administrator may adopt additional rules
and restrictions with respect to such benefits if the Plan Administrator determines that such rules
and restrictions are necessary or appropriate in order to qualify (or continue to qualify) for
exemption from Internal Revenue Code Section 409A.
7
ARTICLE VI. CLAIMS PROCEDURE
Section 6.01. Claims Procedure.
(a) Claim for Benefits. Any Executive who believes he or she is entitled to benefits
under the Plan in an amount greater than the amount received may file, or have his or her duly
authorized representative file, a claim with the Plan Administrator. Any such claim shall be filed
in writing stating the nature of the claim, and the facts supporting the claim, the amount claimed
and the name and address of the claimant. The Plan Administrator shall consider the claim and
answer in writing stating whether the claim is granted or denied. The written decision shall be
within 90 days of receipt of the claim by the Plan Administrator (or 180 days if additional time is
needed and the claimant is notified of the extension, the reason therefor and the expected date of
determination prior to commencement of the extension). If the claim is denied in whole or in part,
the Executive shall be furnished with a written notice of such denial containing (i) the specific
reasons for the denial, (ii) a specific reference to the Plan provisions on which the denial is
based, (iii) an explanation of the Plans appeal procedures set forth in subsection (b) below, (iv)
a description of any additional material or information which is necessary for the claimant to
submit or perfect an appeal of his or her claim and (v) an explanation of the Executives right to
bring suit under ERISA following an adverse determination upon appeal.
(b) Appeal. If an Executive wishes to appeal the denial of his or her claim, the
Executive or his or her duly authorized representative shall file a written notice of appeal to the
Plan Administrator within 90 days of receiving notice of the claim denial. In order that the Plan
Administrator may expeditiously decide such appeal, the written notice of appeal should contain (i)
a statement of the ground(s) for the appeal, (ii) a specific reference to the Plan provisions on
which the appeal is based, (iii) a statement of the arguments and authority (if any) supporting
each ground for appeal, and (iv) any other pertinent documents or comments which the appellant
desires to submit in support of the appeal. The Plan Administrator shall decide the appellants
appeal within 60 days of its receipt of the appeal (or 120 days if additional time is needed and
the claimant is notified of the extension, the reason therefore and the expected date of
determination prior to commencement of the extension). The Plan Administrators written
8
decision shall contain the reasons for the decision and reference to the Plan provisions on
which the decision is based. If the claim is denied in whole or in part, such written decision
shall also include notification of the Executives right to bring suit for benefits under Section
502(a) of ERISA and the claimants right to obtain, upon request and free of charge, reasonable
access to and copies of all documents, records or other information relevant to the claim for
benefits.
Section 6.02. Standard of Review.
The Plan Administrator is vested with the discretionary authority and control to determine
eligibility for coverage and benefits and to construe the terms of the Plan; any such determination
or construction shall be final and binding on all parties unless arbitrary or capricious. To the
extent that the Plan Administrator has appointed a delegate or delegates to administer the claims
procedure, any such determination or construction of the delegate shall be final and binding on all
parties to the same extent as if made by the Plan Administrator.
Section 6.03. Delegation to the Senior Vice President, Human Resources.
Subject to such limits as the Plan Administrator may from time to time prescribe, the
Companys Senior Vice President, Human Resources may exercise any of the authority and discretion
granted to the Plan Administrator hereunder, provided that the Senior Vice President, Human
Resources shall not exercise any authority and responsibility with respect to non-ministerial
matters affecting the Senior Vice President, Human Resources.
9
ARTICLE VII. AMENDMENT AND TERMINATION OF THE PLAN
Section 7.01. Right to Amend and Terminate the Plan.
The Company reserves the right, by action of the Senior Vice President, Human Resources, to
amend, modify or terminate the Plan at any time, in its sole discretion, without prior notice to
Executives; provided that the Organization & Compensation Committee of the Board of Directors of
the Company shall have the exclusive authority to amend the Plan to expand eligibility or increase
benefits, and with respect to amendments that, if adopted, would increase the benefits payable to
the Senior Vice President, Human Resources by more than a de minimis amount.
10
ARTICLE VIII. MISCELLANEOUS PROVISIONS
Section 8.01. Non-Guarantee of Employment or Other Benefits.
Neither the establishment of the Plan, nor any modification or amendment hereof, nor the
payment of any benefits hereunder shall be construed as giving any person any legal or equitable
right against the Company, a subsidiary or affiliate of the Company, or the Plan Administrator, or
the right to payment of any benefits (other than those specifically provided herein), or as giving
any person the right to be retained in the service of the Company or a subsidiary or affiliate of
the Company.
Section 8.02. Participant Rights Unsecured
The right of an Executive to receive severance benefits hereunder shall be an unsecured claim,
and the Executive shall not have any rights in or against any specific assets of the Company. The
right of an Executive to payment of benefits under this Plan shall not be subject to attachment or
garnishment (except as otherwise provided in the Plan) and may not be assigned, encumbered, or
transferred, except by will or the laws of descent and distribution. The rights of an Executive
under this Plan are exercisable during the Executives lifetime only by the Executive or the
Executives guardian or legal representative.
The undersigned, on behalf of the Company, has executed this Plan effective this 5th day
of October, 2010.
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VISTEON CORPORATION
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/s/ Dorothy L. Stephenson
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Dorothy L. Stephenson |
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Senior Vice President, Human Resources |
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11
exv23w1
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-1 of
our report dated February 26, 2010 relating to the financial statements, financial
statement schedule and the effectiveness of internal control over financial reporting, which
appears in Visteon Corporations Annual Report on Form 10-K for the year ended December 31, 2009.
We also consent to the reference to us under the heading Experts in such Registration
Statement.
PricewaterhouseCoopers LLP
Detroit, Michigan
October 22, 2010