Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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VISTEON CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 38-3519512
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5500 Auto Club Drive
Dearborn, Michigan 48126
(Address of principal executive offices) (Zip Code)
The Visteon Investment Plan for Salaried Employees
(Full title of the plan)
Stacy L. Fox
Senior Vice President, General Counsel and Secretary
Visteon Corporation
5500 Auto Club Drive
Dearborn, Michigan 48126
(800) VISTEON
(Name, address and telephone number, including
area code, of agent for service)
--------------------------
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities to Amount to be Offering Price Aggregate Amount of
be Registered Registered(1) Per Share Offering Price Registration Fee
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Common Stock, 5,000,000
$1.00 par value shares $16.0625(2) $80,312,500(2) $21,202.50
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(1) Plus an indeterminate number of shares which may be issued as a result of
anti-dilution provisions contained in the Plan.
(2) Based on the market price of the Common Stock of the Company on June 14,
2000, in accordance with Rules 457(c) and (h) under the Securities Act of 1933.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement covers an indeterminate amount of interests to be offered
or sold pursuant to the Plan described herein.
---------------------------------
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified in Part
I are not required to be filed with the Securities and Exchange Commission
("Commission") as part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed by Visteon Corporation (the "Company")
and the Visteon Investment Plan for Salaried Employees (the "Plan") with the
Commission are incorporated herein by reference:
(a) The latest prospectus of the Company filed pursuant to Rule 424(b)
under the Securities Act of 1933, as amended (File No. 333-38388), which
includes audited financial statements for the year ended December 31, 1999.
(b) The description of the Company's Common Stock set forth in the
Company's Registration Statement on Form 8-A (File No. 001-15827), dated June 2,
2000, filed with the Commission pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and any amendments or
reports filed for the purpose of updating such description.
All documents subsequently filed by the Company and the Plan pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of
filing of this Registration Statement and prior to such time as the Company
files a post-effective amendment to this Registration Statement which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the date of filing
of such documents.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Stacy L. Fox, who is the Company's Senior Vice President, Secretary
and General Counsel, will give an opinion about the validity of the Common Stock
being registered. Ms. Fox does not own any Common Stock as of the date of this
Registration Statement, but is likely to own Common Stock and options to
purchase shares of Common Stock at or shortly after such time as the Company's
parent distributes the Common Stock to its stockholders.
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Item 6. Indemnification of Directors and Officers.
-----------------------------------------
General Corporate Law
The Company is incorporated under the laws of the State of Delaware.
Section 145 ("Section 145") of the General Corporation Law of the State of
Delaware, as the same exists or may hereafter be amended (the "General
Corporation Law"), inter alia, 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 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 or she
reasonably believed to be in or not opposed to the Company's best interests and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe that his conduct was illegal. A Delaware corporation may indemnify any
persons who are, were or threatened to be made, a party to any threatened,
pending or completed action or suit by or in the right of the corporation by
reason of the fact that such person was a director, officer, 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) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit, provided such person acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the corporation's best
interests, provided that no indemnification is permitted without judicial
approval if the officer, director, employee or agent 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 or her against the expenses which such officer or
director has actually and reasonably occurred.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him or her and incurred by him or her in
any such capacity, arising out of his or her status as such, whether or not the
corporation would otherwise have the power to indemnify him or her under Section
145.
Certificate of Incorporation
The Company's Restated Certificate of Incorporation and Bylaws provide
for the indemnification of directors and officers to the fullest extent
permitted by the General Corporation Law.
All of the Company's directors and officers will be covered by
insurance policies maintained by the Company against certain liabilities for
actions taken in their capacities as such, including liabilities under the
Securities Act of 1933, as amended.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
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Item 8. Exhibits.
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The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit No. Exhibit
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(4) The Visteon Investment Plan for Salaried Employees
(5A) Opinion of Stacy L. Fox, Senior Vice President, Secretary
and General Counsel of Visteon Corporation, with respect to
the legality of the securities being registered hereunder.
(5B) The Company hereby undertakes to submit the Plan and any
amendments thereto to the Internal Revenue Service ("IRS")
in a timely manner and will make all changes required by the
IRS in order to qualify the Plan.
(23) Consent of PricewaterhouseCoopers LLP
(24) Power of Attorney relating to subsequent amendments
(included on the signature page to this Registration
Statement)
Item 9. Undertakings.
------------
(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 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 herein, 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) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such
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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.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dearborn, and State of Michigan, on this 16th
day of June, 2000.
VISTEON CORPORATION
By:/s/ Peter J. Pestillo
------------------------------------
Peter J. Pestillo
Chairman of the Board, Chief Executive
Officer and President
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
constitutes and appoints Peter J. Pestillo and Stacy L. Fox, and each of them
individually, his or her true and lawful attorney-in-fact and agent, with full
power of substitution and revocation, 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 to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, may lawfully do or cause to be
done by virtue hereof.
S-1
Signature Title Date
--------- ----- ----
Chairman of the Board, Chief
/s/ Peter J. Pestillo Executive Officer, President and
- --------------------------- Director (Principal Executive
Peter J. Pestillo Officer) June 16, 2000
/s/ Daniel R. Coulson Executive Vice President and Chief
- --------------------------- Financial Officer (Principal
Daniel R. Coulson Financial and Accounting Officer) June 16, 2000
/s/ W. Wayne Booker
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W. Wayne Booker Director June 16, 2000
/s/ John M. Rintamaki
- ---------------------------
John M. Rintamaki Director June 16, 2000
/s/ Henry D.G. Wallace
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Henry D.G. Wallace Director June 16, 2000
S-2
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the Plan has duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Dearborn, and
State of Michigan, on this 16th day of June, 2000.
The Visteon Investment Plan for
Salaried Employees
/s/ Daniel R. Coulson
---------------------------------------
Daniel R. Coulson
/s/ Robert H. Marcin
---------------------------------------
Robert H. Marcin
/s/ Stacy L. Fox
---------------------------------------
Stacy L. Fox
Visteon Investment Plan Committee
S-3
EXHIBIT INDEX
VISTEON INVESTMENT PLAN FOR SALARIED EMPLOYEES
Exhibit No. Exhibit
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(4) The Visteon Investment Plan for Salaried Employees
(5A) Opinion of Stacy L. Fox, Senior Vice President, Secretary
and General Counsel of Visteon Corporation, with respect to
the legality of the securities being registered hereunder.
(5B) The Company hereby undertakes to submit the Plan and any
amendments thereto to the Internal Revenue Service ("IRS")
in a timely manner and will make all changes required by the
IRS in order to qualify the Plan.
(23) Consent of PricewaterhouseCoopers LLP
(24) Power of Attorney relating to subsequent amendments
(included on the signature page to this Registration
Statement)
VISTEON INVESTMENT PLAN
(Effective July 1, 2000)
VISTEON INVESTMENT PLAN
Table of Contents
Page
ARTICLE I. PURPOSE AND EFFECTIVE DATE OF PLAN..................................1
ARTICLE II. DEFINITIONS AND CONSTRUCTION.......................................2
Section 2.01. Definitions...................................................2
Section 2.02. Construction and Applicable Law...............................6
ARTICLE III. PARTICIPATION AND VESTING.........................................7
Section 3.01. Participation.................................................7
Section 3.02. Vesting Service...............................................7
Section 3.03. Transfers of Employment.......................................7
Section 3.04. Status of Leased Employees....................................8
Section 3.05. Rollover Contributions........................................8
Section 3.06. Maximum Annual Additions......................................8
ARTICLE IV. PRE-TAX AND AFTER-TAX CONTRIBUTIONS...............................10
Section 4.01. Election to Participate......................................10
Section 4.02. Amount of Participant's Contributions........................10
Section 4.03. Employer Matching Contributions..............................11
Section 4.04. Section 402(g) Limit on Pre-Tax Contributions................11
Section 4.05. Payment of Contributions to Trustee.........................13
Section 4.06. Average Deferral Percentage Test.............................13
Section 4.07. Average Contribution Percentage Test.........................14
ARTICLE V. INVESTMENT AND PARTICIPANT ACCOUNTS................................17
Section 5.01. Participant Accounts.........................................17
Section 5.02. Establishment of Investment Funds............................17
Section 5.03. Investment of Contributions..................................17
Section 5.04. Valuation of Accounts........................................18
Section 5.05. Participant Investment Election .............................19
Section 5.06. Special Rules Applicable to the Visteon Stock Fund...........20
ARTICLE VI. VESTING AND DISTRIBUTION OF ACCOUNTS UPON TERMINATION
OF EMPLOYMENT...................................................22
Section 6.01. Vesting......................................................22
Section 6.02. Forfeiture of Non-vested Amounts.............................22
Section 6.03. Time and Form of Distributions...............................22
Section 6.04. Required Distribution Dates..................................24
i
Page
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Section 6.05. Death Benefit Distribution...................................24
Section 6.06. Participation After Termination of Employment................25
Section 6.07. Distribution Notice..........................................25
Section 6.08. Compliance with Code Section 401(a)(9).......................25
Section 6.09. Direct Rollovers.............................................25
ARTICLE VII. WITHDRAWALS DURING EMPLOYMENT AND LOANS..........................27
Section 7.01. Withdrawals of After-Tax Contributions.......................27
Section 7.02. Hardship Withdrawal of Pre-Tax Contributions.................27
Section 7.03. Withdrawal of Matching Contributions.........................28
Section 7.04. Withdrawals After Attainment of Age 59 1/2...................29
Section 7.05. Loans to Participants........................................29
ARTICLE VIII. PLAN ADMINISTRATION.............................................31
Section 8.01. Employee Benefits Administrative Committee...................31
Section 8.02. Employee Benefits Investment Committee.......................31
Section 8.03. Organization and Procedure...................................32
Section 8.04. Delegation of Authority and Responsibility...................32
Section 8.05. Use of Professional Services.................................32
Section 8.06. Fees and Expenses............................................32
Section 8.07. Claims Procedure.............................................33
Section 8.08. Communications...............................................33
ARTICLE IX. TRUSTEE AND TRUST AGREEMENT.......................................34
Section 9.01. Appointment..................................................34
Section 9.02. Fees and Expenses............................................34
Section 9.03. Exclusive Benefit............................................34
ARTICLE X. AMENDMENTS AND TERMINATION.........................................35
Section 10.01. Amendments and Termination..................................35
ARTICLE XI. MISCELLANEOUS 36
Section 11.01. Non-Guarantee of Employment.................................36
Section 11.02. Rights to Trust Assets......................................36
Section 11.03. Non-Recommendation of Investment............................36
Section 11.04. Indemnification of Committees...............................36
Section 11.05. Non-Alienation..............................................36
Section 11.06. Facilitation of Payment.....................................37
Section 11.07. Board Action................................................37
Section 11.08. Transfers from Other Qualified Plans........................37
Section 11.09. Mergers, Consolidations and Transfers of Plan Assets........38
Section 11.10. Fiduciaries.................................................38
Section 11.11. Top-Heavy Restrictions......................................38
Section 11.12. USERRA......................................................40
VISTEON INVESTMENT PLAN
ARTICLE I. PURPOSE AND EFFECTIVE DATE OF PLAN
---------------------------------------------
The Plan, established effective July 1, 2000, is intended to satisfy
the requirements of Section 401(a) of the Internal Revenue Code applicable to
qualified plans. Amounts invested in the Visteon Stock Fund are intended to
constitute part of an employee stock ownership plan within the meaning of
Section 4975(e)(7) of the Internal Revenue Code. The purpose of the Plan is to
provide retirement benefits to eligible Participants and to stimulate
Participant savings for financial security.
ARTICLE II. DEFINITIONS AND CONSTRUCTION
----------------------------------------
Section 2.01. Definitions. For purposes of the Plan, unless the
context clearly or necessarily indicates the contrary, the following words and
phrases shall have the meaning set forth in the definitions below:
(a) "Account" shall mean the book-keeping accounts under the Plan to
be maintained for each Participant as provided in Section 5.01.
(b) "Administrative Committee" shall mean the committee appointed
pursuant to Section 8.01.
(c) "After-Tax Contributions" shall mean amounts contributed by or at
the direction of a Participant as an after-tax contribution in accordance with
Article IV.
(d) "Beneficiary" shall mean the person, trust or other entity
designated by a Participant in accordance with rules promulgated by the
Administrative Committee to receive benefits accumulated hereunder in the event
of the Participant's death. In the event a Participant is married at the time of
his death, the Beneficiary shall be the Participant's spouse at such time,
unless the Participant is survived by a Beneficiary designated as such in the
manner described above and either (i) the Participant's spouse has consented in
writing to the designation of such Beneficiary, with such consent being
witnessed by a notary public, or (ii) the Participant has demonstrated to the
Administrative Committee that he has no spouse, his spouse cannot be located or
he is excused because of other circumstances recognized under the Code. In the
event a Participant is not married at the time of his death and there is not in
effect a valid designation of Beneficiary, the person or persons entitled to
receive benefits with respect to the Participant's coverage under the Company's
group term life insurance plan (if coverage is in effect) shall be the
Participant's Beneficiary. In any other case where the Participant is not
survived by either a spouse or a designated Beneficiary, the Participant's
estate shall be the Beneficiary.
(e) "Board" shall mean the Board of Directors of the Company.
(f) "Code" shall mean the Internal Revenue Code of 1986, as amended
and in effect from time to time, and the rulings and regulations promulgated
thereunder.
(g) "Committees" shall mean the Administrative Committee and the
Investment Committee.
(h) "Company" shall mean Visteon Corporation.
(i) "Compensation" shall mean a Participant's base salary or wages for
services performed for the Employer as an Employee, excluding bonuses, overtime
pay, and shift premium, all expense reimbursements or allowances, severance pay,
contributions by the Employer to or benefits received from or under this Plan or
any other employee benefit plan, but before any elective salary reduction
contributions under any plan or arrangement described
2
in Code Section 125 or 401(k) maintained by the Employer. The maximum annual
Compensation taken into account for any Plan Year for any Participant shall not
exceed $150,000 or such higher amount permitted pursuant to Code Section
401(a)(17). In the event of a short Plan Year, the annual compensation limit
will be an amount equal to the applicable annual compensation limit (as in
effect on January 1 of the year in which the short Plan Year begins) multiplied
by a fraction, the numerator of which is the number of months in the short Plan
Year, and the denominator of which is 12. For purposes of Sections 4.02 and
4.03, only Compensation received from the Participating Employers shall be
considered.
(j) "Employee" shall mean any person who is classified by a
Participating Employer as a common law employee for employment tax purposes, who
is on a corporate payroll as such, and who is not in a bargaining unit covered
by a collective bargaining agreement (unless such agreement specifically refers
to the applicability of this Plan to such unit). An individual who, by reason of
Code Section 414(n), is deemed to be an employee for certain purposes of the
Code, shall not be considered an Employee for purposes of this Plan. An
individual who is classified as an "independent contractor" or "leased employee"
is not eligible to participate in the Plan even if such individual is later
determined to be a common law employee; in the event a person who is classified
as an "independent contractor" or "leased employee" is subsequently reclassified
as a common law employee, such reclassification will for purposes of the Plan
apply on a prospective basis only from the date of such reclassification,
regardless of the effective date of the reclassification for any other purpose.
(k) "Employer" shall mean, collectively, the Company and each other
corporation, trade or business that together with the Company is a member of a
controlled group of corporations, a group of trades or businesses under common
control, or an affiliated service group (within the meaning of Code Section
414(b) or (c)) that includes the Company.
(l) "Employment Commencement Date" shall mean the first day for which
an Employee is credited with an Hour of Service.
(m) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended and in effect from time to time, and the rulings and
regulations promulgated thereunder.
(n) "Highly Compensated Employee" shall mean, for any Plan Year, an
employee of an Employer who satisfies either of the following conditions:
(i) The employee was at any time during the current or
immediately preceding Plan Year a five percent (5%) owner
within the meaning of Code Section 414(q)(2); or
(ii) During the immediately preceding Plan Year, the employee
received Compensation from the Employer that, in the
aggregate, exceeds $80,000 as indexed in accordance with
Code Sections 414(q)(1) and 415(d) for cost-of-living
adjustments, and the employee is among the highest paid
twenty percent (20%) of all
3
employees of the Employer. For this purpose, employees who
have not completed six (6) months of service, employees who
normally do not work more than six months in any year,
employees who normally work fewer than 17.5 hours per week,
employees who have not attained age twenty-one (21), and
non-resident aliens who receive no earned income from
sources within the United States, are excluded from
consideration.
The determination of an individual's status as a Highly Compensated
Employee shall be made in accordance with Code Section 414(q) and the
regulations thereunder. The determination of an individual's status as a Highly
Compensated Employee shall be made by considering all corporations or trades or
business that constitute a controlled group of corporations or group of trades
or businesses under common control or an affiliated service group, within the
meaning of Section 414(b), (c) or (m) of the Code, as a single employer.
Accordingly, in the event that not all of the Participating Employers are
members of the same controlled group of corporations, group of trades of
businesses under common control or affiliated service group, the determination
of Highly Compensated Employee status shall be made separately with respect to
each such group, and the Compensation received by an employee from the Employers
of that group.
(o) "Hour of Service" shall mean each hour for which a Participant has
been directly or indirectly compensated or paid, or entitled to such
compensation or other payment, by an Employer for performance of work (whether
as an Employee or in any other capacity) or for reasons other than the
performance of work, such as vacation, holiday, illness, incapacity (including
disability), lay off, jury duty and authorized leaves of absence, including any
hour for which back pay is awarded; provided, however, that no credit shall be
given in excess of 501 hours during any single continuous period during which no
work is performed nor for any hour as to which a payment is made or due for the
sole purpose of complying with applicable workers' compensation or unemployment
compensation or disability insurance laws; provided further, that each hour
shall count only once in determining a Participant's Hours of Service even
though he may receive more than straight time pay for such hour. A Participant's
Hours of Service shall be determined by the Administrative Committee on the
basis of actual hours worked, and Hours of Service credited with respect to
periods in which no work was performed shall be determined with reference to the
Participant's straight time rate of pay and allocated to the Plan Year in which
such hours occur in accordance with Department of Labor Regulations ss.
2530.200b-2(b) and (c), which are incorporated herein by this reference. Hours
of Service shall also include the straight-time hours for which a Participant
would otherwise have been compensated while he is absent from work due to
entering the Armed Forces of the United States of America or any state thereof
under circumstances entitling him to veteran's reemployment rights pursuant to
federal statute, provided the Participant returns to active service with the
Employer within the applicable time limits and under the other conditions
prescribed by such statute for his exercise of such reemployment rights. The
Administrative Committee's determination, to the extent consistent with the
terms hereof and ERISA requirements, shall be final and conclusive for all
purposes hereof.
4
(p) "Investment Committee" shall mean the committee appointed pursuant
to Section 8.02.
(q) "Investment Fund" shall mean an unsegregated fund established at
the direction of the Investment Committee and invested in securities, insurance
contracts or other property of such type and general characteristics as the
Investment Committee shall determine.
(r) "Matching Contributions" shall mean the contributions made by the
Participating Employers in accordance with Section 4.03.
(s) "Participant" shall mean an Employee who has satisfied the
requirements of Section 3.01. An individual who has become a Participant shall
continue as a Participant until all of his Account has been distributed pursuant
to the Plan.
(t) "Participating Employer" shall mean an Employer that has adopted
the Plan with the consent of the Company.
(u) "Period of Severance" shall mean the period of time elapsing
between an individual's Severance Date and the date, if any, on which the
individual is next credited with an Hour of Service.
(v) "Plan" shall mean the Visteon Investment Plan as set forth herein
and from time to time amended.
(w) "Plan Year" shall mean the period beginning on July 1, 2000 and
ending on December 31, 2000 and thereafter, the 12-month period beginning on
January 1 of one year and ending December 31 of the same year.
(x) "Pre-tax Contributions" shall mean amounts contributed under the
Plan by or at the direction of a Participant as a pre-tax contribution in
accordance with Article IV.
(y) "Severance Date" shall mean the earlier to occur of (i) the date
during the Participant's service with the Employer on which he quits, retires,
is terminated or dies, whichever occurs first, or (ii) the first anniversary of
the date on which the Participant commences a continuous absence from service
with the Employers for any other reason such as military service, layoff,
vacation, authorized leave of absence, etc.; provided, however, that in the case
of a Participant who is absent from service with the Employer as a consequence
of his performing military service in the Armed Forces of the United States of
America or of any state thereof under circumstances entitling him to veterans'
reemployment rights pursuant to federal statute, the first anniversary of the
commencement of such military service absence shall not constitute a Severance
Date hereunder if, but only if, he returns to service with the Employer within
the applicable time limit and under the other conditions prescribed by such
statute for his exercise of such reemployment rights; provided further that, for
purposes of this subsection, an "authorized leave of absence" means an absence
from active service with the Employer which it authorizes pursuant to uniform
rules consistently applied in like circumstances for its personnel who are
similarly situated.
5
(z) "Total and Permanent Disability" shall mean a bodily injury or
disease which, in the judgment of the Administrative Committee, wholly disables
a Participant and will permanently, continuously and wholly prevent him for life
from engaging in his occupation or employment for wage or profit with an
Employer.
(aa) "Trust" shall mean the trust agreement executed by and between
the Company and a trustee to hold the assets of the Plan.
(bb) "Trustee" shall mean the trustee of the Trust.
(cc) "Valuation Date" shall mean every regular business day on which
the New York Stock Exchange is open for business.
(dd) "Vesting Service" shall mean the period of an Employee's service
with the Employer which is considered in determining his nonforfeitable right to
Matching Contributions hereunder, as determined pursuant to Article III.
Section 2.02. Construction and Applicable Law.
---------------------------------------------
(a) Construction. Wherever any words are used herein 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 used herein 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. The words "hereof", "herein", "hereunder", and other similar compounds of
the word "here" shall mean and refer to this entire document and not to any
particular Article or Section. Titles of Articles and Sections are for general
information only, and the Plan is not to be construed by reference thereto.
(b) Applicable Law. The Plan is a profit sharing plan intended to
qualify under Code Section 401(a). The Plan includes a cash or deferred
arrangement intended to qualify under Code Section 401(k). It is intended that
the investment options offered under the Plan comply with the requirements of
ERISA Section 404(c) and the regulations promulgated thereunder. The Plan shall
be interpreted so as to comply with the applicable requirements thereof, where
such requirements are not clearly contrary to the express terms hereof. In all
other respects, the Plan shall be construed and its validity determined
according to the laws of the State of [Delaware] to the extent such laws are not
preempted by applicable requirements of federal law. In case any provision of
the Plan shall be held illegal or invalid for any reason, such illegality or
invalidity shall not affect the remaining provisions of the Plan, and the Plan
shall be construed and enforced as if said illegal or invalid provisions had
never been included herein.
6
ARTICLE III. PARTICIPATION AND VESTING
--------------------------------------
Section 3.01. Participation. An Employee of the Company on July 1,
2000 who was eligible to participate in the Salaried Savings and Investment Plan
of Ford Motor Company on June 30, 2000 shall be eligible to participate in this
Plan as of July 1, 2000. Any other Employee of a Participating Employer shall be
eligible to participate in the Plan on the first day of the second calendar
month following the Employee's Employment Commencement Date.
Section 3.02. Vesting Service.
(a) Calculation. Each Participant shall be credited with Vesting
Service, calculated in years and daily fractions thereof equal to the following:
(i) the period of time commencing with his Employment
Commencement Date and ending on a Severance Date;
plus
(ii) each subsequent period of time commencing on the date on
which the Participant again is credited with an Hour of
Service and ending on the date of his next subsequent
Severance Date;
plus
(iii) any Period of Severance of less than 12 consecutive months.
(b) Service Counted. For purposes of determining a Participant's
Vesting Service, (i) in the case of an Employee who becomes eligible to
participate in this Plan on July 1, 2000, employment with Ford Motor Company and
its affiliates prior to July 1, 2000 shall be treated as employment with the
Company, and (ii) employment with an Employer that is not a Participating
Employer shall be treated as if such service were rendered with a Participating
Employer; provided that, except as specifically set forth herein, employment
with an organization prior to the date on which the organization becomes an
Employer, or after the date on which the organization ceases to be an Employer,
shall not be recognized.
(c) Effect of Periods of Severance. The Vesting Service of a
Participant accumulated prior to a Period of Severance and the Vesting Service
accumulated by a Participant after returning from a Period of Severance shall be
aggregated.
Section 3.03. Transfers of Employment. Any person who performed
services as an employee of an Employer in any capacity other than as an Employee
as defined herein, shall, upon becoming an Employee, be credited with
eligibility service for purposes of Section 3.01, and Vesting Service determined
in accordance with Section 3.02, for his employment in such other capacity to
the same extent that such credit would have been granted had the service been
performed as an Employee.
7
Section 3.04. Status of Leased Employees. A person who is or is
classified by the Employer as a "leased employee" within the meaning of Code
Section 414(n) or (o) shall not be eligible to participate in the Plan, but in
the event such a person was participating or subsequently becomes eligible to
participate herein, credit shall be given for the person's service as a leased
employee with any Employer toward completion of the Plan's eligibility and
vesting requirements.
Section 3.05. Rollover Contributions. In accordance with uniform rules
prescribed by the Administrative Committee and in accordance with Code Sections
402 and 408, an Employee may make a rollover to the Plan from another plan
qualified under Code Section 401(a) or from a conduit individual retirement
account that holds assets that are (and has never held assets other than those)
attributable to an eligible rollover distribution from a retirement plan
qualified under Section 401(a) of the Code. In the event an Employee makes a
rollover contribution prior to becoming eligible to participate under Section
3.01, he shall be considered a Participant in the Plan solely for purposes of
such rollover contribution and the gains or losses attributable thereto.
Section 3.06. Maximum Annual Additions.
(a) Limit. The Plan is subject to the limitations on contributions
imposed by Code Section 415, which are incorporated herein by this reference.
The limitation year shall be the Plan Year. For purposes of applying the
limitations of Section 415 under this subsection (a), a Participant's
compensation shall include all items of compensation listed in Treasury
regulations section 1.415-(2)(d)(2) (before reduction for elective deferrals as
defined in Code Section 402(g)(3) and any amount which is contributed or
deferred by the Employer at the election of the Participant and which is not
includible in the gross income of the Participant by reason of Code Section 125
or 457) and shall exclude all items of compensation listed in Treasury
regulations section 1.415-2(d)(3). In the event the Participant is covered by
multiple defined contribution plans, benefits shall be reduced under this Plan
before any reductions under another defined contribution plan.
(b) Effect of Limit. Any amounts not allocable to a Participant by
reason of the limitations incorporated herein shall be allocated and reallocated
during the limitation year among all other eligible Participants to the extent
permitted by the limitations. Any amounts which cannot be allocated or
reallocated due to the limitations shall be credited to a suspense account
subject to the following conditions: (i) amounts in the suspense account shall
be allocated among all eligible Participants hereunder at such time, including
termination of the Plan or complete discontinuance of Employer contributions, as
the foregoing limitations permit, (ii) no investment gains or losses shall be
allocated to the suspense account, (iii) no further Employer contributions shall
be permitted until the foregoing limitations permit their allocation to
Participants' accounts, and (iv) upon termination of the Plan, any unallocated
amounts in the suspense account shall revert to the Company. An eligible
Participant entitled to an allocation hereunder shall receive an amount
determined by multiplying the amount to be allocated hereunder by a fraction,
the numerator of which the is the eligible Participant's Compensation for the
Plan Year and the denominator of which is the total Compensation of all eligible
Participants for such year.
8
(c) Distribution and Forfeitures. If, notwithstanding the foregoing
provisions of this Section, the limitations of Section 415 are exceeded as a
result of a reasonable error in estimating a Participant's compensation, a
reasonable error is estimating the amount of Pre-Tax Contributions or After-Tax
Contributions that a Participant may elect under the limits of Section 415, the
allocation of forfeitures, or such other facts and circumstances as the
Commissioner of the Internal Revenue Service may prescribe, there shall be
deducted from the Participant's Account and returned to the Participant such
portion of his Pre-Tax Contributions and/or After-Tax Contributions, together
with earnings thereon, as may be necessary to satisfy Section 415. If the
requirements are still not satisfied, there shall be deducted from the
Participant's Account all or a portion of the Matching Contribution for such
limitation year as may be necessary to comply with Section 415. Any such
Matching Contribution shall be reallocated in accordance with the rules set
forth in Section 3.07(b) above.
9
ARTICLE IV. PRE-TAX AND AFTER-TAX CONTRIBUTIONS
-----------------------------------------------
Section 4.01. Election to Participate. An Employee who satisfies the
participation requirements of Section 3.01 may elect to participate in the
Pre-Tax Contribution and/or the After-Tax Contribution features of the Plan, and
such election shall be given effect as soon as administratively practicable.
Section 4.02. Amount of Participant's Contributions. (a) Pre-Tax
Contributions. Each Participant shall designate the rate of his Pre-Tax
Contributions at the time of his election to participate in the Plan, which may
be an integral rate of between 1% and 25% of his Compensation for the pay period
to which the participation election relates; provided, however, that the sum of
the Participant's Pre-Tax Contributions and After-Tax Contributions for any pay
period shall not exceed 25% of the Participant's Compensation for the pay
period. The Participant's Pre-Tax Contributions may be made, as elected by the
Participant, from his Compensation, from flexdollars otherwise payable to the
Participant under a Code Section 125 plan or arrangement maintained by a
Participating Employer, and/or from bonuses otherwise payable to the Participant
under a bonus program pursuant to which the Administrative Committee permits
Participants to make deferral elections in accordance with uniform rules
promulgated by the Administrative Committee. Pre-Tax Contributions made from the
Participant's Compensation shall be withheld from the Participant's Compensation
through regular payroll deductions. All other Pre-Tax Contributions shall be
withheld from the Participant's flexdollars or bonus in accordance with
procedures established by the Administrative Committee.
(b) After-Tax Contributions. Each Participant shall designate the rate
of his After-Tax Contributions at the time of his election to participate in the
Plan, which may be an integral rate of between 1% and 25% of his Compensation
for the pay period to which the participation election relates; provided,
however, that the sum of the Participant's Pre-Tax Contributions and After-Tax
Contributions for any pay period shall not exceed 25% of the Participant's
Compensation for the pay period. After-Tax Contributions shall be made for the
Participant through regular payroll deductions from his Compensation.
(c) Changing Contribution Elections. A Participant may change the
designated rate of his Pre-Tax and/or After-Tax Contributions at any time by
following the rate change procedures from time to time established by the
Administrative Committee, which may include a requirement to use a telephone
response or other telephonic or electronic election system. Any such revised
rate shall become effective on the first day of the payroll period commencing
after the date on which the Participant's revised election is received (or as
soon thereafter as is administratively practicable) and shall remain in effect
for successive periods unless further changed or suspended by the Participant or
as otherwise provided under the terms of the Plan.
(d) Contribution Spillover Election. A Participant who has elected to
make Pre-Tax Contributions may also make a contribution spillover election to
become effective in the event that the Participant reaches the maximum annual
limit on Pre-Tax Contributions
10
under Section 402(g) of the Code. For any Participant who has made the
contribution spillover election and who for any year reaches the limit on
Pre-Tax Contributions in effect under Section 402(g) of the Code, the
Participant's election of Pre-Tax Contributions will be deemed an election to
make After-Tax Contributions. If the Participant is not otherwise making
After-Tax Contributions to the Plan, the Participant will be deemed to have
elected to make After-Tax Contribution in an amount equal to the lesser of 10%
of Compensation or the Participant's Pre-Tax Contribution percentage in effect
prior to reach the Section 402(g) limit. If the Participant is making both
Pre-Tax Contributions and After-Tax Contributions, the Participant will be
deemed to have elected to make After-Tax Contributions in an amount equal to the
greater of (i) the Participant's actual After-Tax Contribution election or, (ii)
the lesser of 10% of Compensation or the sum of the Participant's Pre-Tax
Contribution and After-Tax Contribution election.
Section 4.03. Employer Matching Contributions.
(a) With respect to each pay period during which a Participant makes
Pre-Tax and/or After-Tax Contributions, the Participating Employers shall
contribute on behalf of each Participant, as a Matching Contribution, an amount
equal to 60% of the Pre-Tax and/or After-Tax Contributions made by or at the
direction of the Participant during the payroll period, disregarding, for this
purpose, (i) any Pre-Tax and/or After-Tax Contributions that are attributable to
flex dollars available to the Participant under a Code Section 125 plan or
arrangement that the Participant elects to have contributed to the Plan or
Pre-Tax Contributions that are attributable to deferral of bonus payments, and
(ii) any Pre-Tax and/or After-Tax Contributions to the extent that such
contributions exceed 10% of the Participant's Compensation for the pay period.
The Matching Contribution will be made on a pay-period-by-pay-period basis based
upon the Participant's Pre-Tax Contributions and After-Tax Contributions for
that pay period; additional Matching Contributions will not be made for a
Participant whose Pre-Tax Contributions and After-Tax Contributions are less
than 10% of the Participant's Compensation for certain pay periods and in excess
of 10% of Compensation for other pay periods.
(b) Investment. All Matching Contributions shall be in the form of
Visteon Corporation common stock, and shall be deposited into the Visteon Stock
Fund.
Section 4.04. Section 402(g) Limit on Pre-Tax Contributions.
(a) Limit. The maximum amount of Pre-Tax Contributions made on behalf
of any Participant for any calendar year, under this Plan and other plans of the
Employer that permit elective deferral contributions, shall not exceed the
limitation in effect for such year under Section 402(g) of the Code. For
calendar year 2000, this limitation will be applied by aggregating Pre-Tax
Contributions made on behalf of any Participant under the Plan and Pre-Tax
Contributions made on behalf of the Participant under the Salaried Savings and
Investment Plan of Ford Motor Company.
(i) In the event that this limitation is exceeded for any year
taking into account Pre-Tax Contributions to this Plan and
elective
11
deferral contributions to others plans maintained by the
Employer, the excess contributions, together with all income
on such excess for the year in which the excess contribution
was made (but not including any gap period income) will be
distributed to the Participant on or before the first April
15 following the end of the calendar year for which the
limitation has been exceeded.
(ii) In the event that a Participant provides timely notice in
accordance with Section 402(g)(3) of the Code that the
Section 402(g) limitation has been exceeded for any year
taking into account not only this Plan and other plans
maintained by the Employer, but also by taking into account
plans maintained by other employers, the excess, together
with all income on such excess for the year in which the
excess contribution was made (but not including any gap
period income) may, but need not, be returned to the
Participant. If the Administrative Committee elects to
distribute the amount of any excess, distribution shall be
made no later than the first April 15 following the end of
the calendar year for which the limitation has been
exceeded.
(b) Reduction. The amount by which the Participant has exceeded the
Section 402(g) limitation shall be reduced by the amount of excess contributions
(if any) previously distributed to the Participant in accordance with the
average deferral percentage test.
(c) Forfeiture of Matching Contributions. If the Participant receives
a distribution of his excess Pre-Tax Contributions under this Section 4.04, any
Matching Contributions made on such excess contributions, together with all
income on such Matching Contributions for the year in which the excess
contribution was made (but not including gap period income), shall be forfeited.
For this purpose, Pre-Tax Contributions with respect to which the Participant
received a Matching Contribution shall be distributed only after all other
Pre-Tax Contributions made at the direction of the Participant during the
applicable year have been distributed.
12
Section 4.05. Payment of Contributions to Trustee. Each Participating
Employer shall remit Pre-Tax Contributions and After-Tax Contributions to the
Trustee as soon as the Employer can reasonably segregate such contributions from
its general assets but not later than 15 days following the end of the calendar
month in which the contributions were withheld from the Participant's
Compensation. Each Participating Employer shall remit Matching Contributions to
the Trustee as soon as practicable following the end of the pay period to which
the Matching Contribution relates, but not later than the due date, including
extensions, for filing the Employer's federal income tax return for the fiscal
year of the Employer in which the pay period ends.
Section 4.06. Average Deferral Percentage Test. (a) The Plan is
subject to the limitations of Code Section 401(k), which are incorporated herein
by this reference. Accordingly, the average deferral percentage for any Plan
Year for the group of Highly Compensated Employees who are eligible to
participate ("Highly Compensated Participants") in the Plan shall not exceed the
greater of:
(i) 125% of the average deferral percentage for the
preceding Plan Year for all employees who were eligible to
participate in the Plan during such Plan Year other than Highly
Compensated Participants ("Non-Highly Compensated Participants");
or
(ii) the lesser of (A) the average deferral percentage for
the group of Non-Highly Compensated Participants for the
preceding Plan Year plus 2%; or (B) two times the average
deferral percentage for the group of Non-Highly Compensated
Participants for the preceding Plan Year.
(b) The deferral percentage for each Non-Highly Compensated
Participant is calculated by dividing the amount of the Non-Highly Compensated
Participant's Pre-Tax Contributions for the Plan Year by the Participant's
Compensation for such Plan Year. The deferral percentage for each Highly
Compensated Participant is calculated by dividing the amount of the Highly
Compensated Participant's Pre-Tax Contributions for the Plan Year by the Highly
Compensated Participant's Compensation for the Plan Year. The average deferral
percentage for the group of Highly Compensated Participants and the group of
Non-Highly Compensated Participants is the average of the deferral percentages
calculated for each member of the applicable group, including those who are
eligible to contribute but elect not to do so. In the event that not all of the
Participating Employers are members of the same controlled group of
corporations, group of trades or businesses under common control or affiliated
service group (within the meaning of Section 414(b), (c) or (m) of the Code),
the provisions of this Section 4.06 shall be applied separately with respect to
each such group.
(c) The Administrative Committee may from time to time establish
limits (and as appropriate, modify any such limit) on the amount or percentage
of Pre-Tax Contributions that may be made by or on behalf of Highly Compensated
Participants for the Plan Year. In addition, the Administrative Committee may
prospectively decrease the rate of
13
Pre-Tax Contributions of any Participant at any time, if the Administrative
Committee determines that such action is necessary or desirable to enable the
Plan to comply or to ensure compliance with the average deferral percentage
limitations or the requirements of Sections 401(k), 402(g), 415 or other
applicable provisions of the Code.
(d) If the average deferral percentage of Highly Compensated
Participants for any Plan Year exceeds the applicable deferral percentage
limitation for such year, each affected Highly Compensated Participant shall
receive a distribution of the amount of his excess Pre-Tax Contributions,
together with income on such Pre-Tax Contributions for the Plan Year in which
the contributions were made. Such distribution shall be made on or before the
last day of the Plan Year following the Plan Year to which the excess Pre-Tax
Contributions relate; provided that the relevant Employer will be subject to an
excise tax if excess Pre-Tax Contributions are not distributed within two and
one-half months following the close of the Plan Year in which the Pre-Tax
Contributions were made. The aggregate amount of Pre-Tax Contributions to be
refunded shall be determined by reducing (or leveling) the maximum allowable
level of Pre-Tax Contributions to a percentage determined by the Administrative
Committee that, if applied to all Highly Compensated Participants with a
deferral percentage above that level, would result in the average deferral
percentage test being satisfied. The aggregate amount required to be refunded
shall be allocated among (and distributed to) Highly Compensated Participants by
reducing (or leveling) the maximum dollar amount of Pre-Tax Contributions for
the Plan Year to an amount determined by the Administrative Committee that, if
applied to all Highly Compensated Participants with Pre-Tax Contributions above
that level, would result in a refund of Pre-Tax Contributions equal to the
aggregate amount of excess Pre-Tax Contributions calculated in accordance with
the preceding sentence. The amount required to be distributed to any Highly
Compensated Participant shall be reduced by the amount of excess Pre-Tax
Contributions (if any) previously distributed to the Participant in order to
comply with Section 402(g)(5) of the Code.
(e) If a Highly Compensated Participant receives a distribution of his
Pre-Tax Contributions under this Section 4.06, any Matching Contributions made
on such distributed Pre-Tax Contributions shall be forfeited.
(f) In the event that the Administrative Committee determines that
Section 401(k) of the Code (including the regulations thereunder) may be applied
in a manner different than that prescribed in this Section 4.06, the
Administrative Committee, in its discretion, may make appropriate adjustments.
In addition, the Administrative Committee may promulgate such further rules and
procedures as it may deem necessary for the proper application of this Section
4.06.
Section 4.07. Average Contribution Percentage Test.
(a) The Plan is subject to the limitations of Code Section 401(m),
which are incorporated herein by this reference. Accordingly, the average
contribution percentage for any Plan Year for the group of Highly Compensated
Employees who are eligible to participate ("Highly Compensated Participants") in
the Plan shall not exceed the greater of:
14
(i) 125% of the average contribution percentage for the
preceding Plan Year for all employees who were eligible to participate
in the Plan during such Plan Year other than Highly Compensated
Participants ("Non-Highly Compensated Participants"); or
(ii) the lesser of (A) the average contribution percentage
for the group of Non-Highly Compensated Participants for the preceding
Plan Year plus 2%; or (B) two times the average contribution
percentage for the group of Non-Highly Compensated Participants for
the preceding Plan Year.
(b) The contribution percentage for each Non-Highly Compensated
Participant is calculated by dividing the amount of the Non-Highly Compensated
Participant's After-Tax Contributions and Matching Contributions for the Plan
Year by the Participant's Compensation for such Plan Year. The contribution
percentage for each Highly Compensated Participant is calculated by dividing the
amount of the Highly Compensated Participant's After-Tax Contributions and
Matching Contributions for the Plan Year by the Highly Compensated Participant's
Compensation for the Plan Year. The average contribution percentage for the
group of Highly Compensated Participants and the group of Non-Highly Compensated
Participants is the average of the contribution percentages calculated for each
member of the applicable group, including those who are eligible to contribute
but elect not to do so. In the event that not all of the Participating Employers
are members of the same controlled group of corporations, group of trades or
businesses under common control or affiliated service group (within the meaning
of Section 414(b), (c) or (m) of the Code), the provisions of this Section 4.07
shall be applied separately with respect to each such group.
(c) The Administrative Committee may from time to time establish
limits (and as appropriate, modify any such limit) on the amount or percentage
of After-Tax Contributions and/or Matching Contributions that may be made by or
on behalf of Highly Compensated Participants for the Plan Year. In addition, the
Administrative Committee may prospectively decrease the rate of After-Tax
Contributions or Matching Contributions of any Participant at any time, if the
Administrative Committee determines that such action is necessary or desirable
to enable the Plan to comply or to ensure compliance with the average
contribution percentage limitations or the requirements of Sections 401(m), 415
or other applicable provisions of the Code.
(d) If the average contribution percentage of Highly Compensated
Participants for any Plan Year exceeds the applicable contribution percentage
limitation for such year, each affected Highly Compensated Participant's
After-Tax Contributions and Matching Contributions, together with income on such
contributions for the Plan Year in which the contributions were made shall be
distributed and/or forfeited in the following order as necessary: (i) After-Tax
Contributions on which no Matching Contributions were made shall be distributed
to the Participant, (ii) After-Tax Contributions on which Matching Contributions
were made shall be distributed to the Participant, and the Matching
Contributions relating to such After-Tax Contributions shall be forfeited if not
vested or
15
distributed if vested; and (iii) Matching Contributions that relate to Pre-Tax
Contributions shall be forfeited if not vested or distributed if vested. Such
distribution and/or forfeiture shall be made on or before the last day of the
Plan Year following the Plan Year to which the excess After-Tax and Matching
Contributions relate; provided that the relevant Employer will be subject to an
excise tax if excess After-Tax and Matching Contributions are not distributed or
forfeited within two and one-half months following the close of the Plan Year in
which the After-Tax Contributions and Matching Contributions were made. The
aggregate amount of After-Tax Contributions and Matching Contributions to be
refunded and/or forfeited shall be determined by reducing (or leveling) the
maximum allowable level of After-Tax Contributions and Matching Contributions to
a percentage determined by the Administrative Committee that, if applied to all
Highly Compensated Participants with a contribution percentage above that level,
would result in the average contribution percentage test being satisfied. The
aggregate amount required to be refunded shall be allocated among (and
distributed to and/or forfeited by) Highly Compensated Participants by reducing
(or leveling) the maximum dollar amount of After-Tax and Matching Contributions
for the Plan Year to an amount determined by the Administrative Committee that,
if applied to all Highly Compensated Participants with After-Tax and Matching
Contributions above that level, would result in a refund and/or forfeiture of
After-Tax Contributions equal to the aggregate amount of excess After-Tax and
Matching Contributions calculated in accordance with the preceding sentence.
(e) In the event that the Administrative Committee determines that
Section 401(m) of the Code (including the regulations thereunder) may be applied
in a manner different than that prescribed in this Section 4.07, the
Administrative Committee, in its discretion, may make appropriate adjustments.
In addition, the Administrative Committee may promulgate such further rules and
procedures as it may deem necessary for the proper application of this Section
4.07.
16
ARTICLE V. INVESTMENT AND PARTICIPANT ACCOUNTS
----------------------------------------------
Section 5.01. Participant Accounts.
(a) A separate Account shall be established and maintained to reflect
each Participant's interest in the Plan, including, without limitation, the
portion of such interest that is invested in each Investment Fund available
under the Plan. To the extent necessary or appropriate to provide for the proper
administration of the Plan, a Participant's Account shall include separate
balances or subaccounts for interests derived from Pre-Tax Contributions,
After-Tax Contributions, Matching Contributions, rollover contributions and such
other separate balances as the Administrative Committee shall determine. As soon
as practicable following the end of each calendar quarter or such other period
as the Administrative Committee shall determine but no less frequently than
annually, the Company shall prepare for each Participant a statement which shall
reflect the status of the Participant's Account in such form as may be
prescribed by the Administrative Committee.
Section 5.02. Establishment of Investment Funds.
(a) There shall be established two or more Investment Funds (including
the Visteon Stock Fund) with such characteristics as the Administrative
Committee shall from time to time determine. The Administrative Committee may
increase or decrease the number of Investment Funds, or change the
characteristics of any Investment Fund, in its sole discretion.
(b) The Visteon Stock Fund shall be invested primarily in shares of
Company stock, although a percentage of the assets of the fund may be held in
cash or cash equivalent (or invested in any common, commingled or collective
fund) based on expected liquidity needs of the fund.
(c) With respect to the Visteon Stock Fund and any other Investment
Fund that is not a regulated investment company within the meaning of the
Investment Advisors Act of 1940, Participants shall have no ownership in any
particular asset in the fund. Proportionate interests in the fund shall be
expressed in units, which shall be of equal value and no unit shall have
priority or preference over any other unit. With respect to any Investment Fund
that is a regulated investment company within the meaning of the Investment
Advisors Act of 1940, Participants shall have no interest in the underlying
assets of the regulated investment company.
Section 5.03. Investment of Contributions. A Participant's Pre-Tax
Contributions, After-Tax Contributions and rollover contributions allocated to
his Account shall be invested in the various Investment Funds in accordance with
the Participant's election under Section 5.05(a). Subject to a Participant's
right to transfer his Account among the available Investment Funds in accordance
with Section 5.05(b), income earned on assets of any Investment Fund shall be
invested by the Trustee in that Investment Fund.
(b) A Participant's Matching Contributions allocated to his Account
shall be invested in the Visteon Stock Fund. A Participant may transfer vested
Matching Contributions among the available Investment Funds in accordance with
Section 5.05(b).
17
Section 5.04. Valuation of Accounts.Each Participant's Account shall
be valued and adjusted on each Valuation Date to reflect the effect of income
collected and accrued, realized and unrealized gains and losses, expenses and
all other transactions since the preceding Valuation Date with respect to the
related fund in such manner as the Trustee shall deem appropriate.
(b) For purposes of determining the fair market value of a
Participant's interest in the Visteon Stock Fund, the fund shall be divided into
units, and the term "Visteon Stock Fund Unit Price," shall mean the value in
money of an individual Visteon Stock Fund Unit expressed to the nearest cent.
The Visteon Stock Fund Unit Price shall be redetermined as of the close of each
Valuation Date. The Visteon Stock Fund Unit Price for each date shall be
determined by dividing the net asset value of the Visteon Stock Fund on such
date by the number of Visteon Stock Fund Units outstanding on such date. Visteon
Stock Fund Unit Prices shall be determined before giving effect to any
distribution or withdrawal and before crediting contributions to Participants'
Accounts effective as of any such date. Net asset value of the Visteon Stock
Fund shall be computed as follows:
(i) Company Stock shall be valued at the closing price on the
New York Stock Exchange on such Valuation Date, or, if no
sales were made on that date, at the closing price on the
next preceding day on which sales were made.
(ii) All other assets of the Visteon Stock Fund, including any
interest in a common, collective or commingled fund, shall
be valued at the fair market value as of the close of
business on the Valuation Date. Fair market value shall be
determined by the Trustee in the reasonable exercise of its
discretion, taking into account values supplied by a
generally accepted pricing or quotation service or
quotations furnished by one or more reputable sources, such
as securities dealers, brokers, or investment bankers,
values of comparable property, appraisals or other relevant
information and, in the case of a common, collective or
commingled fund, fair market value shall be the unit value
of such fund for a date the same as the Valuation Date, or
as close thereto as practicable.
(iii) Visteon Stock Fund Units credited to Participants' Accounts
with respect to contributions made during any month shall be
credited at the Visteon Stock Fund Unit Price determined as
of the close of business on the Valuation Date that such
contributions are received by the Trustee or as soon
thereafter as is practicable. Visteon Stock Fund Units
withdrawn or distributed shall be valued at the Visteon
Stock Fund Unit Price at the close of business on the
Valuation Date coinciding with the effective date of such
withdrawal or distribution.
(iv) Except as is otherwise provided in directions from the
Company, or dictated by the Trustee's trust accounting
conventions, investment
18
transactions, income and any expenses chargeable to the
Visteon Stock Fund will be accounted for on an accrual
basis.
(c) For purposes of determining the fair market value of a
Participant's interest in any Investment Fund that is a regulated investment
company within the meaning of the Investment Advisors Act of 1940, the
Participant's interest as of the close of business on any date shall equal the
product obtained by multiplying the number of shares in such regulated
investment company that is credited to the Participant's account by the closing
net asset value on the determination date. For purposed of determining the fair
market value of a Participant's interest in any Investment Fund that is not a
regulated investment company within the meaning of the Investment Advisors Act
of 1940 (other than the Visteon Stock Fund which is described above), fair
market value shall be determined on a "unit" basis in accordance with the
governing documents for the common, collective, commingled or pooled fund
pursuant to which the Investment Fund is maintained.
Section 5.05. Participant Investment Election .
(a) Election with Respect to Future Contributions (Other Than Matching
Contributions). A Participant shall elect to have all contributions that are
allocated to his Account while the election is in effect (other than Matching
Contributions) invested in one or more of the Investment Funds. The amount
allocated to each Investment Fund designated by the Participant must be at least
5% of the Participant's Pre-Tax or After-Tax Contributions, or any greater
percentage in whole multiples of 1%. A Participant may make separate elections
with respect to Pre-Tax Contributions and After-Tax Contributions, provided that
the Participant may not select more than 30 Investment Funds. An election under
this subsection may be changed or revoked at any time, but shall remain in
effect until so changed or revoked. In the event that a Participant shall fail
to direct the investment of his Account or fail for such period to replace any
directions which may have been suspended or revoked, the Participant shall be
deemed to have elected to have 100% of such contributions allocated to the Money
Market Fund or such other Investment Fund designated by the Investment Committee
for this purpose; provided, that in the case of an Employee who becomes a
Participant in the Plan on July 1, 2000, the Participant's initial investment
election under this Plan, in the absence of an affirmative election under this
Section 5.05, shall be the Participant's investment election as in effect on
June 30, 2000 under the Savings and Stock Investment Plan of Ford Motor Company,
with the exception that an election of the Ford Stock Fund under the Savings and
Stock Investment Plan of Ford Motor Company will be deemed an election of the
Money Market Fund, and an election of the Interest Income Fund under the Savings
and Stock Investment Plan of Ford Motor Company will be deemed an election of
the Managed Income Portfolio II.
(b) Transfer of Account Balances. A Participant may at any time elect
to reallocate the balance in his Account among the available Investment Funds
(other than the portion of the Participant's Account which represents non-vested
Matching Contributions). A Participant who elects to make such a reallocation
shall elect to have part or all of his interests under the Plan through the
effective date of his election which are allocated to an Investment Fund
transferred to another Investment Fund that is available under the Plan. The
transfer
19
amount shall be either a whole dollar amount or a whole percentage in multiples
of 1%; provided that the minimum transfer amount from any fund shall be the
greater of 5% of the value of the Participant's interest in the transferor
Investment Fund or $250, or the entire value of assets invested in the
transferor Investment Fund if $250 or less. Notwithstanding the foregoing, the
Administrative Committee may promulgate such other restrictions as the
Administrative Committee determines may be necessary or appropriate with respect
to a Participant's ability to reallocate his Account into or out of certain
Investment Funds taking into account the nature of their investments.
(c) Form of Election. A Participant's investment election shall be in
such form and shall be made in accordance with such procedures as the
Administrative Committee may prescribe, which may include a requirement to use a
telephone response or other telephonic or electronic election system. The
Participant's election shall become effective in accordance with rules
prescribed by the Administrative Committee for this purpose.
Section 5.06. Special Rules Applicable to the Visteon Stock Fund.
(a) Dividends. All or a portion of cash dividends paid on shares of
Visteon common stock held in the Visteon Stock Fund shall be distributed
proportionately to Participants who have assets in the Visteon Stock Fund on the
dividend record date and do not reject such distribution. The amount of such
dividends that shall be distributed to Participants who do not reject
distribution shall equal the lesser of (i) the total of such cash dividends, or
(ii) the total amount of cash dividends paid on all shares held in the Visteon
Stock Fund multiplied by the ratio of the number of Visteon Stock Fund Units in
the Accounts of Participants who do not reject such distribution to the number
of Visteon Stock Fund Units in the Accounts of all Participants, such
determination to be made as of the dividend record date. The amount of such cash
dividends that shall be distributed to each Participant who has not rejected
such distribution shall be equal to the total amount of cash dividends to be
distributed multiplied by the ratio of the number of Visteon Stock Fund Units in
the Account of such Participant to the total number of Visteon Stock Fund Units
in the Accounts of all Participants who have not rejected such distribution, all
determined as of the close of the New York Stock Exchange on the record date for
the dividend. The Administration Committee shall from time to time determine the
manner in which Participants shall be provided an opportunity to reject
distribution of dividends or to change a prior election with respect to
distribution. Distribution of such dividends shall be made as soon as
practicable after receipt of such dividends by the Trustee.
(b) Voting. The Trustee, itself or by its nominee, shall be entitled
to vote, and shall vote, shares of Company common stock represented by the
proportionate interests in the Accounts of Participants in the Visteon Stock
Fund or otherwise held by the Trustee under the Plan as follows:
(i) The Company shall adopt reasonable measures to notify the
Participant of the date and purposes of each meeting of
stockholders of the Company at which holders of shares of
Company stock shall be entitled to vote, and to request
20
instructions from the Participant to the Trustee as to the
voting at such meeting of full shares of stock and fractions
thereof represented by the proportionate interests of the
Participant in the Visteon Stock Fund.
(ii) In each case, the Trustee, itself or by proxy, shall vote
full shares of stock and fractions thereof represented by
the proportionate interests of the Participant in the
Visteon Stock Fund in accordance with the instructions of
the Participant.
(iii) If prior to the time of such meeting of stockholders the
Trustee shall not have received instructions from the
Participant in respect of any shares of Company stock
represented by the proportionate interests of the
Participant in the Visteon Stock Fund, the Trustee shall
vote thereat such shares proportionately in the same manner
as the Trustee votes thereat the aggregate of all shares of
Company Stock with respect to which the Trustee has received
instructions from Participants.
21
ARTICLE VI. VESTING AND DISTRIBUTION OF
---------------------------------------
ACCOUNTS UPON TERMINATION OF EMPLOYMENT
---------------------------------------
Section 6.01. Vesting.
(a) A Participant shall be fully vested in all amounts credited to his
or her Account if the Participant terminates employment with the Employer:
(i) after attainment of age 65,
(ii) after qualifying for retirement under a defined
benefit plan maintained by an Employer,
(iii) by reason of a Total and Permanent Disability, or
(iv) by reason of death.
(b) A Participant who terminates employment with the Employer other
than by reason of one of events specified in Section 6.01(a) above shall be
fully vested in the portion of his or her Account that is attributable to
contributions other than Matching Contributions; and any such Participant shall
be vested in the portion of his or her Account that is attributable to Matching
Contributions if the Participant has completed 5 full years of Vesting Service.
Section 6.02. Forfeiture of Non-vested Amounts.
(a) The portion of a Participant's Account that is not vested shall be
maintained in the Participant's Account unless and until (i) the Participant
incurs a Period of Severance of at least 72 consecutive months in duration, or
(ii) the Participant receives a distribution of the vested portion of his
Account. If either of the events described in the first sentence of this
subsection occurs, the non-vested amounts shall be forfeited and applied to
reduce Matching Contributions which would otherwise have been made for the Plan
Year in which the forfeiture occurs.
(b) If a Participant whose Accounts have been forfeited in whole or in
part returns to employment before the duration of his Period of Severance equals
or exceeds 72 consecutive months, then the amount forfeited pursuant to this
Section shall be reinstated to the Participant's Account out of forfeitures for
the Plan Year in which such reemployment occurs, or, if such forfeitures are not
sufficient, out of additional Matching Contributions.
Section 6.03. Time and Form of Distributions.
(a) Accounts of $5,000 or Less. If the vested balance of a
Participant's Account does not exceed $5,000 (or such higher amount allowed
under Code Section 411(a)(11)(A)) at the time of termination of employment from
the Employer, distribution to the Participant shall be made in a single sum cash
payment as soon as practicable following the
22
Participant's termination of employment. The distribution shall be made in cash,
except that the Participant may elect whether to receive his interest in the
Visteon Stock Fund in cash or in whole shares of stock (with cash in lieu of any
fractional share).
(b) Accounts Over $5,000. Subject to Section 6.04, if the vested
balance of a Participant's Account exceeds $5,000 (or such higher amount allowed
under Code Section 411(a)(11)(A)) at the time of termination of employment from
the Employer, a Participant may at any time following his termination of
employment elect to have the vested interest in his Account distributed to him.
The distribution shall be made in cash, except that the Participant may elect
whether to receive his interest in the Visteon Stock Fund in cash or in whole
shares of stock (with cash in lieu of any fractional share). A Participant may
select from among the following distribution options:
(i) Discretionary Withdrawals. The Participant may elect to
receive all or part of the value of his or her vested
Account in a single sum payment. Distribution shall be made
as soon as practicable following receipt of the
Participant's withdrawal request.
(ii) Systematic Installments. The Participant may elect to
receive distribution of his or vested Account in monthly,
quarterly, semi-annual or annual installments over such
period of time (whole number of years) as the Participant
may specify, which period may not exceed the maximum period
under Section 6.03(b)(iii) below). Each installment will be
an amount equal to the value of the Participant's
undistributed vested Account as of the determination date
for such installment multiplied by a fraction, the numerator
of which is one and the denominator of which is the number
of installments remaining in the period specified by the
Participant. Each installment distribution shall be
withdrawn proportionately from each of the Investment Funds
which the Participant has elected under the Plan. The
Administrative Committee shall establish rules and
regulations as it may deem necessary or desirable for
administration of the systematic installment option, which
may include a uniform monthly date for all such payments,
and shall communicate such date or dates to Participants. In
the event that the systematic withdrawals specified by the
Participant do not meet the minimum distribution
requirements beginning at age seventy and one-half (70-1/2)
under section 401(a)(9) of the Code, then such additional
amounts shall be distributed in accordance with the
provisions of Section 6.04 hereof as necessary to satisfy
such minimum distribution requirements.
(iii) Installments Over life Expectancy. A Participant who has
terminated employment and who has attained age seventy and
one-half (70-1/2) may elect installment distributions of the
23
Participant's vested Account payable over the life of the
Participant or the lives of the Participant and the
Participant's Beneficiary under the Plan in accordance with
Section 401(a)(9) of the Code and with regulations
prescribed by the Secretary of the Treasury thereunder and
subject to such regulations as the Administrative Committee
may prescribe. Such election may be made by Participants who
have terminated employment in lieu of distribution over a
period of 15 years as provided in Section 6.04 hereof.
Section 6.04. Required Distribution Dates.
(a) In the case of a Participant who is not a 5% owner within the
meaning of Section 416(i) of the Code, distribution shall be made not later than
April 1 of the calendar year following the calendar year in which occurs the
later of the Participant's attainment of age 70-1/2 or the Participant's
termination of employment from the Employer. If the Participant has not elected
distribution under Section 6.03(b)(ii) or (iii) by the required beginning date,
annual installment distributions over a 15 year installment period shall
commence, subject to the Participant's right to elect an alternate distribution
period that is available under the Plan and that results in distribution at
least as rapid as required under Section 401(a)(9) of the Code.
(b) In the case of a Participant who is a 5% owner within the meaning
of Section 416(i) of the Code, distribution shall be made not later than April 1
of the calendar year following the calendar year in which the Participant's
attains age 70-1/2, even if the Participant is then still employed with the
Employer. If the Participant has not elected distribution under Section
6.03(b)(ii) or (iii) by the required beginning date, annual installment
distributions over a 15 year installment period shall commence, subject to the
Participant's right to elect an alternate distribution period that is available
under the Plan and that results in distribution at least as rapid as required
under Section 401(a)(9) of the Code.
(c) In the case of any Participant who has elected that distribution
of his or her Account be made or commence to be made, distribution shall be made
or commence to be made not later than 60 days after the close of the Plan Year
in which occurs (i) the Participant's attainment of age 65, (ii) the
Participant's retirement or termination of employment from the Employer, or
(iii) the 10th anniversary of the date the Participant commenced participation
in the Plan.
Section 6.05. Death Benefit Distribution. If the Participant dies
prior to having received distribution of his entire vested Account, the
remaining vested balance of the Participant's Account shall be distributed in
the Participant's Beneficiary in a single sum cash payment. Distribution to the
Participant's Beneficiary shall be made as soon as practicable following the
Participant's death, and in any event will be completed not later than December
31 of the year in which occurs the fifth anniversary of the Participant's death.
24
Section 6.06. Participation After Termination of Employment. A
Participant's Account shall continue to share in the earnings, gains and losses
of the Investment Funds until the date as of which distribution is made. A
Participant (or, in the case of a deceased Participant, the Participant's
Beneficiary) may make investment election changes in accordance with Section
5.05(b) while the Account is held in the Plan.
Section 6.07. Distribution Notice. The Plan shall provide an
explanation to each Participant of his rights to defer distribution in
accordance with Section 411(a)(11)(A) of the Code and his right to at least 30
days to consider whether to elect current distribution of his Account. Such
explanation will be provided no less than 30 and no more than 90 days before the
date the distribution is made; provided, however, that if the Participant
affirmatively elects a distribution after receiving such explanation, the
distribution may commence within 30 days of the date the explanation is provided
to the Participant.
Section 6.08. Compliance with Code Section 401(a)(9). The provisions
of the Plan are intended to comply with Code Section 401(a)(9) which prescribes
certain rules regarding minimum distributions and requires that death benefits
be incidental to retirement benefits. All distributions under the Plan shall be
made in conformance with Code Section 401(a)(9) and the regulations thereunder
which are incorporated herein by reference. The provisions of the Plan governing
distributions are intended to apply in lieu of any default provisions prescribed
in regulations; provided, however, that Code Section 401(a)(9) and the
regulations thereunder override any Plan provisions inconsistent with such Code
Section and regulations.
Section 6.09. Direct Rollovers.
(a) Notwithstanding any provision of the Plan to the contrary that
would otherwise limit a distributee's election under this Article, a distributee
may elect, at the time and in the manner prescribed by the Administrative
Committee, to have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the distributee in a direct
rollover.
(b) An eligible rollover distribution is any distribution of all or
any portion of the balance to the credit of the distributee, except that an
eligible rollover distribution does not include: any distribution that is one of
a series of substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of ten years or more; any
distribution to the extent such distribution is required under Section 401(a)(9)
of the Code; the portion of any distribution that is not includible in gross
income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities); and any hardship withdrawal
under Section 7.02.
(c) An eligible retirement plan is an individual retirement account
described in Section 408(a) of the Code, an individual retirement annuity
described in Section 408(b) of the Code, an annuity plan described in Section
403(a) of the Code, or a qualified trust
25
described in Section 401(a) of the Code, that accepts the distributee's eligible
rollover distribution. However, in the case of an eligible rollover distribution
to the surviving spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity.
(d) A distributee includes an employee or former employee. In
addition, the employee's or former employee's surviving spouse and the
employee's or former employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined in Section 414(p)
of the Code, are distributee's with regard to the interest of the spouse or
former spouse.
(e) A direct rollover is a payment by the Plan to the eligible
retirement plan specified by the distributee.
26
ARTICLE VII. WITHDRAWALS DURING EMPLOYMENT AND LOANS
----------------------------------------------------
Section 7.01. Withdrawals of After-Tax Contributions. Prior to
termination of his employment, a Participant may withdraw all or part of the
value of his Account attributable to After-Tax Contributions and earnings
thereon; provided that the Participant shall not be permitted to make Pre-Tax
Contributions or After-Tax Contributions to the Plan for a period of 12 months
following the date of any such withdrawal of After-Tax Contributions with
respect to which the Participant received a Matching Contribution if the
withdrawal is made within two years following the end of the year during which
such After-Tax Contributions were made.
Section 7.02. Hardship Withdrawal of Pre-Tax Contributions.Prior to
the termination of his employment, on a showing by the Participant of an
immediate and heavy financial need that cannot be met from other resources that
are reasonably available to the Participant (including, but not limited to,
loans which may be available under Section 7.05), a Participant shall be
permitted to make a withdrawal of an amount not exceeding the lesser of (i) the
amount needed to satisfy such need, including any amounts necessary to pay any
federal, state or local income taxes or penalties reasonably anticipated to
result from the withdrawal, or (ii) 100% of the Participant's Pre-Tax
Contributions (excluding investment earnings on Pre-Tax Contributions accrued
after December 31, 1988) and rollover contributions and investment earnings
thereon. The amount of taxes reasonably anticipated to result from any
withdrawal shall be determined pursuant to rules established by the
Administrative Committee, in its sole discretion.
(b) For purposes of this Section, "an immediate and heavy financial
need" shall be deemed to exist if the distribution is on account of:
(i) Expenses for medical care described in Code
Section 213(d) previously incurred by the
Participant, the Participant's spouse, or any
dependent of the Participant (as defined in Code
Section 152) or necessary for any such person to
obtain such medical care;
(ii) Costs directly related to the purchase of a
principal residence for the Participant (excluding
mortgage payments);
(iii) Payment of tuition and related educational fees
for the next 12 months of post-secondary education
for the Participant, the Participant's spouse,
children or dependents (as defined in Code Section
152);
(iv) Payments necessary to prevent the eviction of the
Participant from his principal residence or
foreclosure on the mortgage on that residence; or
27
(v) Other events provided for in revenue rulings,
notices or other documents of general
applicability published by the Commissioner of
Internal Revenue.
(c) In order to demonstrate that a need cannot be met from other
resources, the Participant may be required to provide such documents or
information as the Administrative Committee may require and to certify that the
need cannot be relieved (i) through reimbursement from insurance, (ii) by
reasonable liquidation of assets, (iii) by cessation of Pre-Tax Contributions
under the Plan, or (iv) by other withdrawals under or loans from this or any
other plan or a loan from a commercial lender, on reasonable terms.
(d) A withdrawal under this Section 7.02 shall be permitted only if
(i) the Participant has first withdrawn or borrowed all amounts available to him
under this or any other Employer plan, (ii) the Participant's Pre-Tax and
After-Tax Contributions shall be suspended for a period of 12 months following
such withdrawal, and (iii) the amount which the Participant may contribute as
Pre-Tax Contributions for the Plan Year following such withdrawal shall not
exceed the amount described in Section 402(g) of the Code for such year, reduced
by the amount of the Participant's actual Pre-Tax Contributions for the Plan
Year in which the withdrawal occurred. If the Administrative Committee
determines that a Participant cannot reasonably be expected to fulfill his
obligations with respect to another resource, e.g., the Participant will not be
able to repay a Plan loan, the Administrative Committee may waive such
requirement as applied to the Participant.
(e) Distributions pursuant to this Section shall be made as soon as
administratively feasible after the withdrawal is approved. Distribution amounts
will be deducted from the Participant's Account in accordance with ordering
rules from time to time adopted by the Administrative Committee and uniformly
applied to all Participants.
(f) In the event of the death of a Participant after his election to
make a withdrawal but prior to distribution thereof, the withdrawal election
shall be deemed revoked.
Section 7.03. Withdrawal of Matching Contributions. A Participant,
prior to termination of employment from the Employer, may withdraw all or part
of the value of his or her Account that is attributable to Matching
Contributions if:
(i) The Participant is vested in the Matching
Contributions being withdrawn; and
(ii) In the case of a Participant who has not yet
attained age 59 1/2, the withdrawal is being made
at least two years following the end of the year
in which the Matching Contributions being
withdrawn were allocated to the Participant's
Account.
(b) A Participant, prior to termination of employment from the
Employer, may withdraw investment earnings on vested Matching Contributions,
even if the withdrawal occurs less than two years following the end of the year
in the Matching Contributions were allocated to the Participant's Account.
28
Section 7.04. Withdrawals After Attainment of Age 59 1/2. After
attainment of age 59 1/2, a Participant may elect to make a systematic
withdrawal from the vested portion of the Participant's Account in monthly,
quarterly, semi-annual or annual installments over a period specified by the
Participant, consistent with the rule specified in Section 6.03(b)(ii) for
Participants who have terminated employment.
Section 7.05. Loans to Participants.
(a) A Participant who is actively employed or is a party in interest
(as defined in ERISA Section 3(14)) with respect to the Plan may borrow from the
balances in his Account attributable to his Pre-Tax Contributions and After-Tax
Contributions (such balances being hereinafter referred to as "loanable account
balances"). The amount of any loan to a Participant hereunder shall not be less
than $1,000, and must be in increments of $100. The aggregate of all outstanding
loans, determined at the time that any loan is made, shall not exceed the lesser
of (i) $50,000 reduced by the highest aggregate balance of outstanding loans
from the Plan during the one year period ending on the date the loan is made, or
(ii) 50% of the Participant's vested Account balance. A Participant may apply
for only one loan each year and may have only four loans outstanding at any one
time.
(b) Funds for any loan shall be drawn proportionately from the
balances in the Participant's Account attributable to his Pre-Tax Contributions
and After-Tax Contributions. The Administrative Committee may adopt such other
rules as to the source of funds and the investment of principal and interest
paid by Participants on outstanding loans as may be appropriate for the orderly
administration of the Plan.
(c) Each loan shall (i) in accordance with Department of Labor
Regulation ss. 2550.408b-1, bear interest at a rate that is commensurate with
interest rates charged on similar commercial loans as determined by the
Administrative Committee from time to time; (ii) be made for a period of 12, 24,
36, 48 or 60 months as requested by the Participant, except that if the loan
proceeds will be used by the Participant to buy or construct his principal
residence, the Participant may select a payment period of up to 10 years (in
annual increments); (iii) require payments of principal and interest on at least
a monthly basis, with substantially level amortization; and (iv) be subject to
such other terms and conditions as the Administrative Committee may determine.
All loans shall be due and payable in accordance with the terms of the loan,
upon an event of default described below, or if earlier, upon the Participants'
termination of employment from the Employer. The terms and conditions of each
loan shall be incorporated in a promissory note executed by the borrowing
Participant.
(d) Amounts loaned to a Participant pursuant to this Section shall not
share in the allocations of investment fund earnings under Section 5.03, but
shall be investments solely for the account of the Participant and shall be
treated as a segregated account of the Trust for the sole benefit of the
Participant, which account shall serve as security for the loan repayment.
(e) Following a Participant's termination of employment, the notes
evidencing outstanding loans may be distributed to the Participant or his
Beneficiary in full
29
satisfaction of any remaining indebtedness, provided that a Participant who upon
termination of employment qualifies for retirement under a defined benefit
pension plan maintained by the Employer may continue making periodic payments
directly to the Trustee.
(f) Borrowers who are active employees shall repay their loans through
payroll deduction during each pay period. In the case of a borrower who is on a
leave of absence without pay (or a reduced work schedule such that the
Participant earns less, after applicable tax withholding, than the amount
necessary to pay a required installment on a loan) the Administrative Committee
may allow the Participant to suspend repayment of the loan for up to one year;
provided that such suspension does not operate to extend the maturity date of
the loan. In any case in which repayments have been suspended in accordance with
the foregoing sentence, upon the Participant's return to active employment or
expiration of the suspension period, as applicable, the loan shall be
re-amortized over its remaining term unless the Participant elects to make
monthly payments at the level in effect prior to the suspension and a "balloon"
payment of the Participant remaining balance (including accrued interest) at
maturity. Upon termination of employment, the Participant's outstanding loan
balance (other than a Participant who following termination of employment
qualifies for retirement under defined benefit pension plan maintained by an
Employer or qualifies as a party in interest as described in subsection (a)
above) shall be accelerated, and the Participant will have until the end of the
calendar quarter following the calendar quarter of his termination date to repay
the outstanding loan balance and any interest through the date of repayment. If
the Participant does not repay the outstanding loan balance, the loan will be in
default and the value of the Participant's Account balance under the Plan will
be reduced by the amount of any unpaid principal and interest on the outstanding
loan. In the event that a Participant's Account becomes distributable before
repayment in full of all principal and interest on' outstanding loans, the note
evidencing any outstanding loan may be distributed to the Participant in full
satisfaction of the remaining indebtedness. The Administrative Committee may
impose such rules, requirements or restrictions relating to loans under this
Section as it shall determine to be necessary or appropriate, including, without
limitation, requirements as to the execution of loan documents and/or payroll
deduction authorizations, and the assessment of processing fees against that
Participant's Accounts. The loan program provided for in this Section shall be
administered by the Administrative Committee in accordance with ERISA Section
408(b)(1).
(g) In the event that the Participant does not repay the loan in
accordance with the terms and conditions thereof (including full repayment upon
termination of employment), or fails to cure any default as provided below, the
Administrative Committee may direct that the Participant's segregated loan
account shall be charged for the total amount of the loan or any part thereof
(including accrued interest) with such amount being treated as a distribution of
that portion of the Participant's Accounts, provided that such direction shall
not occur at a time or in a manner when such a "deemed distribution" would
violate applicable provisions of the Code or ERISA. In order to cure a default,
the Participant must pay such installment, together with accrued interest, on or
before the last day of the calendar quarter following the calendar quarter
during which the installment was due (unless the Participant is on a partial or
full leave of absence and repayment of the loan has been suspended in accordance
with Internal Revenue Service requirements).
30
ARTICLE VIII. PLAN ADMINISTRATION
---------------------------------
Section 8.01. Employee Benefits Administrative Committee. There shall
be an Employee Benefits Administrative Committee consisting of not less than
three persons appointed by and serving at the pleasure of the Board. Members of
the Administrative Committee may, but need not, be officers, employees or
directors of an Employer. The Administrative Committee shall be the
"administrator" of the Plan for all purposes of ERISA and the "named fiduciary"
required under ERISA, and to the extent such responsibility is not specifically
allocated otherwise hereunder, shall have the exclusive responsibility for the
administration and operation of the Plan and shall have the power to take any
action necessary or appropriate to carry out such responsibilities. The duties
and authority of the Administrative Committee shall include, but not be limited
to, the following:
(a) to prescribe and require the use of appropriate forms;
(b) to formulate and issue rules and regulations;
(c) to prepare and file reports, notices and any other documents
relating to the Plan which may be required by law;
(d) to interpret and apply the provisions of the Plan;
(e) to use prescribed forms;
(f) to apply prescribed rules and regulations;
(g) to make appropriate determinations calculations; and
(h) to authorize and direct benefit payments.
Without limiting the generality of the foregoing, the Administrative Committee
shall have discretionary authority to determine eligibility for benefits and to
construe and interpret the terms of the Plan, including without limitation, the
authority to make determinations respecting the amount of a Participant's
Vesting Service and a Participant's benefit entitlement under the Plan. Any such
determination or construction shall be final and binding on all parties.
Section 8.02. Employee Benefits Investment Committee. There shall be
an Employee Benefits Investment Committee consisting of not less than 3 persons
appointed annually at the organizational meeting of the Board and serving at the
pleasure of the Board. Members of the Investment Committee shall be officers,
employees and/or directors of an Employer. The duties and authority of the
Investment Committee shall be as follows:
(a) to direct the establishment of Investment Funds and determine the
investment characteristics and establish general investment guidelines for such
Investment Funds, and to add to or change the number and nature of the
Investment Funds from time to time; and
31
(b) to periodically review the performance of the Trustee and each
Investment Fund; and
(c) to the extent that the funding policy of the Plan is not expressly
set forth herein, to establish such funding policy. which may include the
establishment of goals and objectives for the Trustee and Investment Funds with
respect to the investment of the assets of the Trust, and shall communicate such
policy to the parties responsible for its implementation.
Section 8.03. Organization and Procedure. Each Committee shall have a
chairman, a secretary, and such other officers as may be deemed appropriate.
Action on any matter shall be taken on the vote of at least a majority of all
members of the Committee at any meeting or upon unanimous written consent of all
members without a meeting. Minutes of meetings shall be kept and all major
actions of the Committees shall be recorded in such minutes or other appropriate
written form. The Committees may adopt such bylaws, procedures and operating
rules as they may deem appropriate.
Section 8.04. Delegation of Authority and Responsibility.Each
Committee may delegate to any one or more of its members the authority to
execute documents on behalf of such Committee and to represent such Committee in
any matters or dealings involving such Committee. Any such delegation of
authority shall be set forth in writing.
(b) The Committees may delegate certain of their powers to a person
employed by an Employer under such terms and conditions as may be specified by
the Committee. Any such delegation of the powers shall be set forth in writing.
(c) Employees of an Employer who are not members of any Committee or
persons to whom powers are delegated under subsection (b) above may perform such
duties and functions relating to the Plan as a Committee shall direct and
supervise. It is expressly provided, however, that the Committees shall retain
full and exclusive authority and responsibility for and respecting any such
activities by other employees, and nothing contained in this subsection 8.04(c)
shall be construed to confer upon any such employee any discretionary authority
or control respecting the administration or operation of the Plan.
Section 8.05. Use of Professional Services. Any Committee may obtain
the services of such attorneys, actuaries, accountants or other persons they
deem appropriate, any of whom may be the same persons who are providing services
to an Employer. In any case in which a Committee utilizes such services, it
shall retain exclusive discretionary authority and control respecting the
administration and operation of the Plan.
Section 8.06. Fees and Expenses. Committee members who are employees
of an Employer shall serve without compensation but shall be reimbursed for all
reasonable expenses incurred in their capacity as Committee members. No employee
members of any Committee or persons performing services pursuant to Section 8.05
shall receive greater than reasonable compensation for their services and
expenses. All compensation for services and expenses shall be paid from the
Trust unless the Employer, in its sole discretion, elects to pay them. To the
extent that they are not paid by the Employer, such compensation and expenses
shall be paid out of the principal or income of the Trust.
32
Section 8.07. Claims Procedure.Any Participant or Beneficiary under
this Plan who believes he is entitled to benefits under the Plan in an amount
greater than he is receiving may file, or have his duly authorized
representative file, a claim with the Administrative Committee under this
Section. 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 Administrative Committee shall designate one or
more persons (who may or may not be members of the Administrative Committee) to
consider the claim and answer in a writing stating whether the claim is granted
or denied. 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) a description of any additional material or
information which is necessary for the claimant to submit to perfect his claim
and an explanation of why such material or information is necessary, and (iv) an
explanation of the Plan's appeal procedure.
(b) If a claimant wishes to appeal the denial of his claim, the
claimant or his duly authorized representative shall file a written notice of
appeal to the Administrative Committee within 90 days of receiving notice of his
claim denial. In order that the Administrative 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 his appeal. The Administrative Committee shall decide the appellant's appeal
within 60 days of its receipt of the appeal, unless special circumstances
require a 60-day extension . The Administrative Committee's written decision
shall contain the reasons for the decision and reference to the Plan provisions
on which the decision is based. A copy of the Administrative Committee's
decision shall be mailed promptly to the claimant.
Section 8.08. Communications. All requests, claims, appeals, elections
and other communications to the Administrative Committee shall be in writing and
shall be made by transmitting the same via the U.S. Mail, certified, return
receipt requested, addressed as follows:
Visteon Corporation
5500 Auto Club Drive
Dearborn, Michigan 48121
Attention: Visteon Investment Plan Administrative Committee
33
ARTICLE IX. TRUSTEE AND TRUST AGREEMENT
---------------------------------------
Section 9.01. Appointment.The Company shall enter into a trust
agreement or trust agreements with one or more persons or corporations selected
by the Investment Committee to act as Trustee of the Trust. The Trustee shall
receive all Pre-Tax Contributions, After-Tax Contributions, rollover
contributions and Matching Contributions and shall hold, manage, administer and
invest the same, reinvest any income, and make distributions in accordance with
the provisions of the Trust and this Plan. The Trust shall be in such form and
contain such provisions as the Investment Committee may deem necessary and
appropriate to effectuate the purposes of the Plan and to qualify the Plan and
each Trust under the Internal Revenue Code.
(b) The Investment Committee may, from time to time, remove each
Trustee or any successor Trustee at any time and any such Trustee or any
successor Trustee may resign and, the Investment Committee shall, upon removal
or resignation of a Trustee, appoint a successor Trustee.
Section 9.02. Fees and Expenses. The Trustee's fee, and other fees and
expenses, shall be paid by such Trustee out of the Trust, unless the Company
elects to pay them.
Section 9.03. Exclusive Benefit. All contributions under the Plan
shall be paid to the Trustee, and all property and funds of the Trust, including
income from investments and from all other sources, shall be managed solely in
the interest of Participants and their Beneficiaries and for the exclusive
purpose of:
(a) providing benefits to Participants and Beneficiaries; and
(b) defraying the reasonable expenses of administering the Plan and
Trust.
34
ARTICLE X. AMENDMENTS AND TERMINATION
-------------------------------------
Section 10.01. Amendments and Termination.While it is intended that
the Plan shall continue in effect indefinitely, the Board may from time to time
modify, alter or amend the Plan or the Trust, and may at any time order the
temporary suspension or complete discontinuance of contributions or may
terminate the Plan, provided, however, that
(i) no such action shall make it possible for any part
of the Trust assets (except such part as is used
for the payment of expenses) to be used for or
diverted to any purpose other than for the
exclusive benefit of Participants or their
Beneficiaries and the defraying of the reasonable
expenses of administering and winding up the Plan;
(ii) no such action shall adversely affect the rights
or interests of Participants theretofore vested
under the Plan; and
(iii) in the event of termination of the Plan or
complete discontinuance of Matching Contributions
hereunder, all rights and interests of
Participants not theretofore vested shall become
vested as of the date of such termination or
complete discontinuance.
(b) If any individual Participating Employer terminates its
participation in the Plan or orders the complete discontinuance of its
contributions, all rights not theretofore vested of Participants who are
employees of such Participating Employer shall become vested as of the date of
such termination or complete discontinuance.
(c) Nothing herein shall be construed to prevent any modification,
alteration or amendment of the Plan or the Trust which is required in order to
comply with the provision of any law or regulation relating to the establishment
or maintenance of this Plan and Trust, including but not limited to the
establishment and maintenance of the Plan or Trust as a qualified employee plan
or trust under the Code, even though such modification, alteration, or amendment
is made retroactively or adversely affects the rights or interests of a
Participant under the Plan.
35
ARTICLE XI. MISCELLANEOUS
-------------------------
Section 11.01. Non-Guarantee of Employment. Nothing contained in this
Plan shall be construed as a contract of employment between an Employer and a
Participant, or as a right of any Participant to be continued in the employment
of his Employer, or as a limitation of the right of an Employer to discharge any
Participant with or without cause.
Section 11.02. Rights to Trust Assets. No Participant or any other
person shall have any right to, or interest in, any part of the Trust assets
upon termination of his employment or otherwise, except as provided from time to
time under this Plan, and then only to the extent of the amounts due and payable
to such person out of the assets of the Trust. All payments as provided for in
this Plan shall be made solely out of the assets of the Trust and neither the
Employer, the Trustee, nor any member of a Committee shall be liable therefor in
any manner.
(b) The Employer shall have no beneficial interests of any nature
whatsoever in any contributions after the same have been received by the
Trustee, or in the assets, income or profits of the Trust or any part thereof.
However, (i) to the extent a tax deduction for any Employer contribution is
disallowed or a contribution is made as result of a mistake of fact, such
contribution shall be returned to the Participating Employer within 1 year after
such disallowance or mistake of fact, as the case may be, and (ii) if the
Internal Revenue Service initially determines that the Plan, or any part
thereof, fails to qualify under Code Section 401(a), any contributions that have
been made shall be returned to the Participating Employers within 1 year
following such determination. All contributions are expressly conditioned upon
their deductibility under the Code and the Plan's initial qualification under
the Code.
Section 11.03. Non-Recommendation of Investment. The availability of
any security hereunder shall not be construed as a recommendation to invest in
such security. The decision as to the choice of investment of a Participant's
contributions must be made solely by each Participant, and no officer or
employee of any Employer or the Trustee is authorized to make any recommendation
to any Participant concerning the allocation of his contributions hereunder.
Section 11.04. Indemnification of Committees. The Company shall
indemnify each member of the Committees and the Board and hold each of them
harmless from the consequences of his acts or conduct in his official capacity,
if he acted in good faith and in a manner he reasonably believed to be solely in
the best interests of the Participants and their beneficiaries, and with respect
to any criminal action or proceeding had no reasonable cause to believe his
conduct was unlawful. Such indemnification shall cover any and all attorneys'
fees and expenses, judgments, fines and amounts paid in settlement, but only to
the extent that such amounts are not paid to such person(s) under the Company's
fiduciary insurance policy and to the extent that such amounts are actually and
reasonably incurred by such person(s).
Section 11.05. Non-Alienation. Except as otherwise provided in
subsection (b) or under applicable law, no right or interest of any Participant
or Beneficiary in the Plan and
36
the Trust shall be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, charge, attachment, garnishment,
execution, levy, bankruptcy, or any other disposition of any kind, either
voluntary or involuntary, prior to actual receipt of payment by the person
entitled to such right or interest under the provisions hereof, and any such
disposition or attempted disposition shall be void.
(b) Notwithstanding anything herein to the contrary, the Plan shall
recognize and give effect to a qualified domestic relations order with respect
to child support, alimony payments, or marital property rights if it determines
that such order meets the applicable requirements of Code Section 414(p). If a
qualified domestic relations order directs or allows, distribution may be made
to an alternate payee designated in such order at a time not permitted for
distribution to the Participant himself. The Administrative Committee shall
establish procedures concerning the notification of interested parties, the
determination of the validity of such orders, the determination of the source of
funds to be used to provide for distribution pursuant to such orders, and such
other issues as may be necessary or appropriate to deal with such orders in a
uniform and nondiscriminatory manner.
Section 11.06. Facilitation of Payment.In the event that any person
who is entitled to benefits hereunder cannot be located despite reasonable and
diligent efforts to do so, then such person's benefits shall be automatically
forfeited as of the last day of the Plan Year next following the year in which
such benefits became payable; provided, however, in the event that such person
subsequently makes a claim for such forfeited benefits prior to the termination
of the Plan, such benefits shall be reinstated.
(b) In the event the Administrative Committee shall find that any
Participant to whom a benefit is payable is unable to care for his affairs
because of illness or accident, any payment due (unless prior claim therefor
shall have been made by a duly qualified guardian or other legal representative)
may, in the sole discretion of the Administrative Committee, be deferred until
an appropriate legal representative is appointed or be paid to the spouse,
parent, brother or sister or other person deemed by the Administrative Committee
to have incurred expenses for such Participant otherwise entitled to payment.
Any such payment shall be a payment for the account of the Participant and shall
be in complete satisfaction and full payment of the Participant's Account
hereunder. In addition, if any benefits are improperly paid to the estate,
spouse, parent, brother or sister or other person for the account of the
Participant by reason of mistake of fact, any such payment shall be deemed (i) a
payment for the account of the Participant or his Beneficiary, and (ii) in
complete satisfaction and full payment of the Participant's Account hereunder.
Section 11.07. Board Action. Any action which is required or permitted
to be taken by the Board under the Plan may be taken by the Executive Committee
of the Board or any other authorized Committee of the Board.
Section 11.08. Transfers from Other Qualified Plans. There may be
transferred to and deposited with the Trustee to be held, invested and
distributed in accordance with the provisions of the Plan and as an integral
part of the assets held by the Trustee thereunder, assets subject to any other
defined contribution plan qualified under Code Section
37
401(a) and is merged into the Plan. Such transfer and merger shall be affected
on such other terms and conditions as may be determined by the Board.
Section 11.09. Mergers, Consolidations and Transfers of Plan Assets.
In the case of any merger or consolidation with, or transfer of assets or
liabilities to or from any other plan qualified under Code Section 401(a), each
Employee in the Plan must be entitled (if the Plan then terminated) to receive a
benefit immediately after the merger, consolidation, or transfer which is equal
to or greater than the benefit he would have been entitled to receive
immediately before the merger, consolidation, or transfer (if the Plan had then
terminated).
(b) If a Participant in this Plan transfers to employment with an
Employer in a capacity in which he is eligible to participate in another plan
which utilizes the Trust, then his interests in his Account under this Plan may
be transferred to such other plan at the direction of the Administrative
Committee, provided that such transfer does not result in a reduction of his
accrued benefits or vesting rights, the elimination of any optional form of
benefits or the reduction or elimination of an early retirement benefit or
retirement-type subsidy. Similarly, if a participant in another plan maintained
by an Employer which utilizes the Trust becomes eligible to participate in this
Plan, then his interests in such other plan may be transferred to this Plan.
Notwithstanding any other provision of this Plan, in the event of such a
transfer to this Plan, the vested interest in the portion of any Participant's
Account derived from benefits accrued under such other plan shall not at any
time be less than it would have been under the terms of such plan as in effect
immediately prior to such transfer.
Section 11.10. Fiduciaries. Any person may serve in more than one
fiduciary capacity with respect to the Plan. Any fiduciary hereunder, as an
individual, may employ such legal, actuarial, accounting or other assistant he
may deem necessary to fulfill his obligations hereunder, which assistants may be
those consulted by any Employer, the Trustee, the Plan or other fiduciaries.
Section 11.11. Top-Heavy Restrictions. (a) The Plan shall be a
"Top-Heavy Plan" for any Plan Year if either of the following conditions
applies:
(i) The Top-Heavy Ratio for the Plan exceeds 60% and the Plan is
not part of any Required Aggregation Group or Permissive
Aggregation Group having a Top-Heavy Ratio of 60% or less.
(ii) The Plan is part of a Required Aggregation Group having a
Top-Heavy Ratio which exceeds 60% and is not part of a
Permissive Aggregation Group having a Top-Heavy Ratio of 60%
or less.
If the Plan is a Top-Heavy Plan in any Plan Year the provisions of this Section
11.12 shall supersede any conflicting provisions of the Plan. The provisions of
this Section 11.12 are intended to comply with Code Section 416 and the
regulations promulgated thereunder. If there is any discrepancy between the
provisions of this Section 11.12 and the provisions of Code Section 416 or the
Income Tax Regulations thereunder, such discrepancy shall be
38
resolved by the Administrative Committee so as to comply with Code Section 416
and the regulations.
(b) Solely for purposes of this Section, the following terms shall
have the meanings set forth below:
(i) "Key Employee" means any employee or former
employee (and the beneficiary of such employee)
whose status as an officer or owner of the
Employer makes him a "key employee" as determined
in accordance with Code Section 416(i)(1) and the
regulations thereunder.
(ii) "Determination Date" means the last day of the
preceding Plan Year.
(iii) "Top-Heavy Ratio" means a fraction, the numerator
of which is the sum of account balances under any
defined contribution plans maintained by the
Employer for all Key Employees and the present
value of accrued benefits under any defined
benefit plans maintained by the Employer for all
Key Employees and the denominator of which is the
sum of the account balances under such defined
contribution plans for all Participants and the
present value of accrued benefits under such
defined benefit plans for all Participants. Both
the numerator and denominator of the Top-Heavy
Ratio shall be adjusted for any distribution of an
account balance or an accrued benefit made in the
5-year period ending on the Determination Date and
any contribution due but unpaid as of the
Determination Date. For purposes of calculating
the Top-Heavy Ratio, (A) the value of account
balances and the present value of accrued benefits
shall be determined as of the most recent
Valuation Date that falls within or ends with the
12-month period ending on the Determination Date
and (B) the account balances and present values of
accrued benefits of a Participant who is not a Key
Employee but who was a Key Employee in a prior
year shall be disregarded. The calculation of the
Top-Heavy Ratio, and the extent to which
distributions, rollovers and transfers are taken
into account, will be made in accordance with Code
Section 416 and the regulations thereunder. When
aggregating plans, the value of account balances
and accrued benefits will be calculated with
reference to the Determination Dates that fall
within the same calendar year. The present value
of accrued benefits shall be determined pursuant
to Code Section 416(g) using a 5% interest
assumption and the UP-1984 Mortality Table.
39
(iv) "Permissive Aggregation Group" means the Required
Aggregation Group of plans plus any other plan or
plans of the Employer which, when considered as a
group with the Required Aggregation Group, would
continue to satisfy the requirements of Code
Sections 401(a)(4) and 410.
(v) "Required Aggregation Group" means (A) each
qualified plan of the Employer in which at least
one Key Employee participates and (B) any other
qualified plan of the Employer which enables a
plan described in (i) to meet the requirements of
Code Sections 401(a)(4) and 410.
(vi) "Valuation Date" means (A) in the case of a
defined contribution plan, the Determination Date
and (B) in the case of a defined benefit plan, the
date as of which funding calculations are
generally made within the 12-month period ending
on the Determination Date.
(vii) "Employer" means the employer or employers whose
employees are covered by this Plan and any other
employer which must be aggregated with any such
employer under Code Section 414(b), (c) and (m).
(c) If the Plan is a Top-Heavy Plan for any Plan Year, a Participant
who is a Non-Key Employee and who is employed on the last day of the Plan Year
will receive an allocation of Matching Contributions equal to the lesser of
three percent (3%) of compensation (within the meaning of Code Section 415) or
the highest percentage of compensation allocated to a Key Employee for the Plan
Year. In determining such minimum contribution, Pre-Tax Contributions made on
behalf of a Non-Key Employee shall not be considered, but Pre-Tax Contributions
made on behalf of a Key Employee shall be counted. Notwithstanding the
foregoing, if the Employer also maintains a defined benefit plan which covers
the same Non-Key Employee, such Non-Key Employee will be entitled to the defined
benefit plan minimum and not the defined contribution plan minimum.
(d) The provisions of this Section 11.12 are intended to comply with
Code Section 416 and the regulations promulgated thereunder. If there is any
discrepancy between the provisions of this Section 11.12 and the provisions of
Code Section 416 or the Income Tax Regulations thereunder, such discrepancy
shall be resolved by the Administrative Committee so as to comply with Code
Section 416 and the regulations.
Section 11.12. USERRA. Notwithstanding any provision of the Plan to
the contrary, contributions and service credit with respect to qualified
military service shall be provided in accordance with Code Section 414(u).
40
Exhibit 5A
June 15, 2000
Visteon Corporation
5500 Auto Club Drive
Dearborn, MI 48126
Ladies & Gentlemen:
This will refer to the Registration Statement on Form S-8 (the
"Registration Statement") that is being filed by Visteon Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), with
respect to 5,000,000 shares of Common Stock, par value $1.00 per share, of the
Company ("Common Stock"), relating to the Company's Investment Plan for Salaried
Employees (the "Plan").
As Secretary and General Counsel of the Company, I am familiar with
the Certificate of Incorporation and the By-laws of the Company and with its
affairs, including the actions taken by the Company in connection with the Plan.
I also have examined such other documents and instruments and have made such
further investigation as I have deemed necessary or appropriate in connection
with this opinion.
Based upon the foregoing, it is my opinion that:
1. The Company is duly incorporated and validly existing as a
corporation under the laws of the State of Delaware.
2. All necessary corporate proceedings have been taken to authorize
the issuance of the shares of Common Stock being registered under the
Registration Statement, and all such shares of Common Stock acquired by Fidelity
Management Trust Company, as trustee under the Master Trust Agreement to be
dated July, 2000 relating to the Plan (the "Master Trust Agreement") and as
trustee under the Plan, in accordance with the Master Trust Agreement and the
Plan, will be legally issued, fully paid and non-assessable when the
Registration Statement shall have become effective and the Company shall have
received therefor the consideration provided in the Plan (but not less than the
par value thereof).
I hereby consent to the use of this opinion a Exhibit 5.A to the
Registration Statement. In giving this consent, I do not admit that I am in the
category of persons whose consent is required under Section 7 of the Securities
Act or the Rules and Regulations of the Commission issued thereunder.
Very truly yours,
/s/ Stacy L. Fox
Stacy L. Fox
Senior Vice President, General Counsel
and Secretary
Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
Re: Visteon Corporation Registration Statement on Form S-8
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 for the Investment Plan for Salaried Employees of Visteon
Corporation and Subsidiaries (the "Company") of our report dated April 7, 2000,
except as to Note 1 for which the date is June 1, 2000, relating to the
financial statements which appears in the Company's Registration Statement on
Form S-1 (Registration No. 333-38388).
/s/ PricewaterhouseCoopers LLP
Detroit, Michigan
June 16, 2000