Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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 Hourly 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)
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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, 1,000,000
$1.00 par value shares $16.0625(2) $16,062,500(2) $4,240.50
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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.
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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.
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The following documents filed by Visteon Corporation (the "Company")
and the Visteon Investment Plan for Hourly 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.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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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.
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
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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.
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Not Applicable.
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 Hourly 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.
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(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.
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(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 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
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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.
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Signature Title Date
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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
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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
Hourly Employees
/s/ Daniel R. Coulson
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Daniel R. Coulson
/s/ Robert H. Marcin
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Robert H. Marcin
/s/ Stacy L. Fox
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Stacy L. Fox
Visteon Investment Plan Committee
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EXHIBIT INDEX
VISTEON INVESTMENT PLAN FOR HOURLY EMPLOYEES
Exhibit No. Exhibit
(4) The Visteon Investment Plan for Hourly 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)
Exhibit 4
VISTEON CORPORATION SAVINGS PLAN
FOR
HOURLY EMPLOYEES
(Effective July 1, 2000)
VISTEON CORPORATION SAVINGS PLAN
FOR HOURLY EMPLOYEES
This Plan has been established by the Company to enable Employees to
save and invest in a systematic manner and to provide them with an opportunity
to become stockholders of the Company.
I. Definitions
As hereinafter used:
1. "Account" shall mean, as appropriate, any one of a Member's Pre-Tax
Savings Account, After-Tax Savings Account, or any combination of such
accounts.
2. "After-Tax Savings Contributions" shall mean amounts contributed by an
Employee to the Plan from the Employee's Wages, as provided in Section
IV hereof.
3. "After-Tax Savings Account" shall mean an Account of a Member under
the Plan to which are credited After-Tax Contributions made by such
Employee and Earnings thereon.
4. "Bond Fund" shall mean that portion of the trust fund under the Plan
consisting of investments made by the Trustee in accordance with
Section 3 of Section XIII hereof.
5. "Bond Fund Units" shall mean the measure of a Member's interest in the
Bond Fund as described in Section 3 of Section XIII hereof.
6. "Cash Value of Assets" shall mean the value of the assets, expressed
in dollars, in a Member's account under any investment election under
the Plan or the total thereof, as the case may be, at the close of
business on the date such cash value is to be determined.
7. "Collective Bargaining Agreement" shall mean the collective bargaining
agreement in effect between the Company and the International Union,
United Automobile, Aerospace and Agricultural Implement Workers of
America, UAW.
8. "Committee" shall mean the Committee created by the Company pursuant
to the provisions of Section XX hereof.
9. "Common Stock Fund" shall mean that portion of the trust fund under
the Plan consisting of investments made by the Trustee in accordance
with Section 2 of Section XIII hereof.
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10. "Common Stock Fund Units" shall mean the measure of a Member's
interest in the Common Stock Fund as described in Section 2 of Section
XIII hereof.
11. "Company" shall mean Visteon Corporation.
12. "Company Stock" shall mean common stock of the Company.
13. "Composite Quotation Listing" shall mean a composite listing of market
prices of securities supplied by a reputable financial statistical
service selected by the Trustee, which listing includes the prices at
which securities are traded on national securities exchanges located
in the United States.
14. "Current Market Value" shall mean, with reference to Company Stock,
the closing market price on the New York Stock Exchange on the day in
question or, if no sales were made on that date, at the closing market
price on the next preceding day on which sales were made.
15. "Earnings" with reference to Pre-Tax Savings Contributions and
After-Tax Savings Contributions ,shall mean earnings resulting from
the investment and any reinvestment of such contributions and any
increment thereof and shall include interest, dividends and other
distributions on such investments.
16. "Employee" shall mean each person who is employed at an hourly rate by
a Participating Company and is enrolled on the active employment rolls
of such Participating Company maintained in the United States.
17. "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
18. "Member" shall mean and include (a) an Employee who shall have elected
to participate in the Plan and, in the case of an Employee of a
Participating Company, shall have filed a Pre-Tax Savings Election
then outstanding under the Plan, and (b) a person who has assets under
the Plan.
19. "Participating Company" shall mean and include the Company and each
Subsidiary of the Company that shall have elected to participate in
the Plan with the consent of the Company. "Subsidiary of the Company"
shall mean a domestic corporation not less than a majority of the
voting stock of which is owned directly or indirectly by the Company.
20. "Performance Bonus Payments" shall mean payments to Members pursuant
to the applicable provisions of the Collective Bargaining Agreement.
21. "Plan Year" shall mean the period beginning on July 1, 2000 and ending
on December 31, 2000, and thereafter, the twelve-month period starting
on the first day of the first pay period beginning in a calendar year
and ending on December 31 of that year.
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22. "Pre-Tax Savings Account" shall mean an account of a Member under the
Plan to which are credited Pre-Tax Savings Contributions on behalf of
such Employee and Earnings thereon.
23. "Pre-Tax Savings Election" shall mean an agreement between an Employee
and the Participating Company to have the Employee's wages or Profit
Sharing Distributions reduced by an amount specified by the Employee
and to have an amount equal to such reduction contributed by the
Participating Company to the Plan on behalf of the Employee, pursuant
to Section 401(k) of the Internal Revenue Code and Section IV hereof.
24. "Pre-Tax Savings Contributions" shall mean amounts contributed by the
Company to the Plan on behalf of an Employee, pursuant to a Pre-Tax
Savings Election, as provided in Section IV hereof.
25. "Profit Sharing Distributions" shall mean amounts distributed to
hourly Employees under profit sharing plans of a Participating
Company.
26. "Subsidiary" or "Affiliate" shall mean (a) all corporations that are
Members of a controlled group of corporations within the meaning of
Section 1563(a) of the Internal Revenue Code (determined without
regard to Section 1563(a)(4) and Section 1563(e)(3)(c) of the Internal
Revenue Code) and of which the Company is then a member and (b) all
trades or businesses, whether or not incorporated, that, under the
regulations prescribed by the Secretary of the Treasury pursuant to
Section 414(c) of the Internal Revenue Code, are then under common
control with the Company.
27. "Trustee" shall mean the trustee or trustees appointed by the Company
pursuant to the provisions of Section XVI hereof.
28. "Visteon Stock Fund" shall mean that portion of the trust fund under
the Plan consisting of investments made by the Trustee in accordance
with Section 1 of Section XIII hereof.
29. "Visteon Stock Fund Units" shall mean the measure of a Member's
interest in the Visteon Stock Fund as described in Section 1 of
Section XIII hereof.
30. "Wages" shall mean the regular base pay for straight time hours,
including holiday pay and vacation pay (including the related excused
absence allowance), and incentive pay, bereavement pay, jury duty pay,
and short-term military duty pay, and the straight time portion of any
overtime hours paid, up to a total of 40 hours in a week for all such
payments, cost of living allowance applicable to the foregoing, and
Performance Bonus Payments to which an Employee of a
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Participating Company is entitled prior to giving effect to any
Pre-Tax Savings election. Performance Bonus Payments shall qualify as
wages irrespective of the 40 hour maximum. "Wages" shall not include
any other category of compensation (e.g., overtime premium pay,
Saturday and Sunday premium pay, cost-of-living allowance not
applicable to the foregoing, call-in pay, shift premium pay, seven-day
premium pay, holiday premium pay, grievance awards, moving allowances,
supplemental unemployment benefit payments under the Company's
Supplemental Unemployment Benefit Plan (including automatic short-week
benefit payments), suggestion awards, tool allowances, apprentice
training incentives, the cost to the Participating Company of
providing Group Life Insurance and Survivor Income Benefit coverages
in excess of $50,000 (or any other imputed income as may be designated
by law), pension or retirement plan payments, any Christmas bonus, or
any other special remuneration).
In addition, wages for purposes of determining the amount of
contributions that may be made to the Plan by Employees whose
regularly scheduled hours are less than 40 hours as a result of the
establishment of a three-shift operation at the discretion of the
Company shall be determined by
(i) multiplying the excess of 40 hours over the regularly scheduled
hours by a rate equal to the sum of the regular straight-time
rate and the applicable cost-of- living allowance and
(ii) adding thereto straight-time pay and applicable cost- of-living
allowance for hours worked, up to a total of 40 hours in a week
for all such payments.
The annual compensation of each Employee taken into account for
determining all benefits provided under the Plan for any determination
period shall not exceed the amount specified in Section 401(a)(17) of
the Internal Revenue Code.
II. Eligibility
Except as hereinafter provided, each Employee of a Participating Company
shall be eligible for membership in the Plan and to make After-Tax Savings
Contributions and to have Pre-Tax Savings Contributions made to the Plan
three months after such Employee's initial date of hire (eligibility date).
The Company may in its discretion determine, in the event of the
acquisition by a Participating Company (by purchase, merger or otherwise)
of all or part of the assets of another corporation, that the service of a
person as an Employee of such other corporation shall be included in
ascertaining whether he or she has had such service as required above for
eligibility, provided that he or she shall have become an Employee of a
Participating Company in connection with such acquisition.
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Leased employees are not considered Employees and are therefore excluded
from eligibility for membership in the Plan. The term "leased employee"
includes any person (other than an Employee of the Company) who pursuant to
an agreement between the Company and any other person ("leasing
organization") has performed services for the Company (or for the Company
and related persons determined in accordance with Section 414(n)(6) of the
Internal Revenue Code) on a substantially full time basis for a period of
at least one year, and such services are performed under primary direction
or control by the Company. For purposes of this Paragraph, the term Company
shall include the Company and its Subsidiaries.
III. Membership
Membership of any Employee in the Plan shall be entirely voluntary except
as otherwise provided in Section XXVI hereof.
An eligible Employee may elect membership in the Plan as of any pay period
commencing after such Employee's eligibility date or as of the date of any
Profit Sharing Distribution by delivering a notice of election to
participate and a Pre-Tax Savings Election in accordance with Section IV
hereunder.
A newly-hired Employee of a Participating Company may elect membership in
the Plan prior to the date on which such Employee would otherwise become
eligible for membership in the Plan for the limited purpose of making a
rollover contribution to the Plan as hereinafter provided.
IV. Contributions
1. Pre-Tax Savings Contributions
Each eligible Employee, by making a Pre-Tax Savings Election in such
form and in such manner and at such time as the Committee may
prescribe, may elect to have contributed to the Plan on his or her
behalf
(a) for each pay period, a Pre-Tax Savings Contribution in such
amount as he or she may authorize at a rate of not less than one
percent nor more than twenty-five (25) percent thereafter, in
increments of one percent, of his or her Wages for such pay
period, such amounts to be rounded down to the nearest full
dollar, and
(b) for each Profit Sharing Distribution, a Pre-Tax Savings
Contribution in such amount as he or she may authorize at a rate
of not less than one percent nor more than 100 percent, in
increments of one percent, of such Profit Sharing Distribution.
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Subject to the foregoing provisions of this Section IV, the rate
of Pre-Tax Savings Contributions with respect to Wages authorized
by the Employee may be decreased, increased or stopped by him or
her by delivering notice of such change in such form and in such
manner and at such time as the Committee shall specify. If an
Employee shall become ineligible to have Pre-Tax Savings
Contributions made to the Plan, his or her Pre-Tax Savings
Election shall terminate forthwith. If the Pre-Tax Savings
Election of an Employee shall terminate for any reason, the
Employee thereafter may, subject to the eligibility provisions of
the Plan, resume the making of Pre-Tax Savings Contributions to
the Plan, as of the first day of any pay period by giving notice
in such form and in such manner and at such time as the Committee
shall specify.
The Company shall contribute to the Plan each pay period, out of
current or accumulated earnings and profits, an amount equal to
the aggregate of the amounts of Pre-Tax Savings Contributions to
be contributed by the Company on behalf of Employees pursuant to
such Employees' elections with respect to such pay period.
2. After Tax Savings Contributions
In lieu of all or part of the contributions an Employee may
authorize in accordance with Section 1 of Section IV, an Employee
may elect in the manner prescribed by the Committee to contribute
an equivalent amount to the Plan on an after-tax basis. Such
contributions shall be allocated to the Employee's After-Tax
Savings Account.
The Committee may require Employees of a Participating Company
who elect to make After-Tax Savings Contributions to the Plan to
contribute by payroll deductions or by such other method as the
Committee may designate. If the Committee shall designate a
method other than payroll deductions, the Committee shall adopt
rules applying, as nearly as practicable, the provisions of this
Section IV relating to payroll deductions to such method of
making After-Tax Savings Contributions.
3. Limitation on Contributions
(a) Definitions. As hereinafter used in this Section IV:
"Average Pre-Tax Savings Contribution Percentage" means the
average of the Pre-Tax Savings Contribution percentages of the
eligible Employees in a group.
"Pre-Tax Savings Contribution Percentage" means the ratio
(expressed as a percentage) of Pre-Tax Savings Contributions
under the Plan on behalf of the eligible Employee for the year to
the eligible Employee's compensation for the year. "Compensation"
for this purpose means
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compensation paid by the Company to the Employee during the year
which is required to be reported as wages on the Employee's Form
W-2, plus Pre-Tax Savings Contributions. The determination of the
Pre-Tax Savings Contribution percentage and the treatment of
Pre-Tax Savings Contributions shall satisfy such other
requirements as may be prescribed by the Secretary of the
Treasury pursuant to the Internal Revenue Code.
The Pre-Tax Savings Contribution percentage for any eligible
Employee who is a highly compensated Employee for the year and
who is eligible to have Pre-Tax Savings Contributions allocated
to his account under two or more plans described in Section
40l(a) of the Internal Revenue Code or arrangements described in
Section 40l(k) of the Internal Revenue Code that are maintained
by the Company or an Affiliate shall be determined as if all such
contributions were made under a single plan.
"Average After-Tax Contribution percentage" means the average of
the After-Tax Savings Contribution percentages of the eligible
Employee's in a group.
"After-Tax Contribution percentage" means the ratio (expressed as
a percentage) of After-Tax Savings Contributions under the Plan
on behalf of the eligible Employee for the year to the eligible
Employee's compensation for the year. "Compensation" for this
purpose means compensation paid by the Company to the Employee
during the year which is required to be reported as wages on the
Employee's Form W-2, plus Pre-Tax Savings Contributions. The
determination of the After-Tax Contribution percentage and the
treatment of After-Tax Savings Contributions shall satisfy such
other requirements as may be prescribed by the Secretary of the
Treasury pursuant to the Internal Revenue Code. The After-Tax
Contribution Percentage for any eligible Employee who is a Highly
compensated Employee for the year and who is eligible to make
After-Tax Savings Contributions to his or her accounts under two
or more plans described in Section 401(a) of the Internal Revenue
Code or arrangements described in Section 401(m) of the Internal
Revenue Code that are maintained by the Company or an Affiliate
shall be determined as if all such contributions were made under
a single plan.
The term" highly compensated Employee" includes highly
compensated active Employees and highly compensated former
Employees.
A highly compensated active Employee includes any Employee who
performs service for the Company and who, (i) was a 5 percent
owner at any time during the look-back year or determination
year, which terms are defined below, or (ii) for the look-back
year, received compensation from the Company in excess of $80,000
(as adjusted pursuant to the
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Internal Revenue Code) and, if the Company so elects for the
look-back year, was in the top-paid group of Employees for such
look-back year.
For this purpose, the determination year shall be the Plan Year.
The look-back year shall be the twelve-month period immediately
preceding the determination year.
A highly compensated former Employee includes any Employee who
separated from service (or was deemed to have separated) prior to
the determination year, performs no service for the Company
during the determination year, and was a highly compensated
active Employee for either the separation year or any
determination year ending on or after the Employee's 55th
birthday.
The determination of who is a highly compensated Employee,
including the determinations of the number and identity of
Employees in the top-paid group, and the compensation that is
considered, will be made in accordance with Section 414 (q) of
the Internal Revenue Code and the regulations thereunder. For
this purpose, "compensation" shall mean compensation as defined
in Section 415(c)(3) of the Internal revenue Code.
(b) Limits on Pre-Tax Savings Contributions
The total amount of Pre-Tax Savings Contributions allowable under
Pre-Tax Savings Elections for any Employee for any year beginning
shall not exceed the lesser of the maximum allowed by Sections
401(a)(30) and 402(g) of the Internal Revenue Code as from time
to time in effect or as provided by any successor provisions; or
2) twenty-five (25) percent thereafter of the Employee's Wages
for that year plus 100 percent of the Profit Sharing
Distributions payable to the Employee during that year.
(c) Limitations on Pre-Tax Savings Contributions Applicable to Highly
Compensated Employees
For each Employee who is a highly compensated Employee for the
year the total amount of Pre-Tax Savings Contributions available
shall not exceed the percent of the Employee's Wages and Profit
Sharing Distributions for the year determined as follows. There
first shall be determined, under the following table, an average
allowable Pre-Tax savings percentage, for the eligible Employees
who are not highly compensated Employees for the year as a group.
-9-
If the average of the actual Pre-Tax Savings Contribution percentages
of eligible Employees who are not highly compensated Employees for the
preceding Plan Year (or if the Company elects in accordance with
Section 401(k)(3)(A) of the Internal Revenue Code, including such
changes in election as may be permitted by the Secretary of Treasury,
the current Plan Year) is:
The allowable average Pre-Tax Savings Contribution percentage for
eligible Employees who are highly compensated Employees shall not
exceed:
(a) 2% or less
(a) 2.0 times the average of the actual Pre-Tax savings percentages
for eligible Employees who are not highly compensated Employees.
(b) over 2% but not more than 8%
(b) 2.0 percentage points added to the average of the actual Pre-Tax
savings percentages for eligible Employees who are not highly
compensated Employees.
(c) more than 8%
(c) 1.25 times the average of the Pre-Tax savings percentages for
eligible Employees who are not highly compensated Employees or,
in any case, such lesser amount as the Secretary of the Treasury
shall prescribe to prevent the multiple use of parts (a) and (b)
of this limitation with respect to any highly compensated
Employee.
(d) Limitations on After-Tax Savings Contributions Applicable to
Highly Compensated Employees.
The After-Tax Contribution percentage for any eligible Employee
who is a highly compensated Employee for the year shall be
limited to the extent required under the following tables:
-10-
After-Tax Contribution Percentage Limitation
If the Average of the actual After-Tax Contribution percentages of
eligible Employees who are not highly compensated Employees for the
preceding Plan Year (or if the Company elects in accordance with
Section 401(m)(2)(A) of the Internal Revenue Code, including such
changes in election as may be permitted by the Secretary of Treasury,
the current Plan Year) is:
The allowable Average After-Tax- Contribution percentage for the
current Plan Year for eligible Employees who are highly compensated
Employees shall not exceed:
(a) 2% or less
(a) 2.0 times the average of the actual After-Tax Contribution
percentages for eligible Employees who are not highly compensated
Employees.
(b) over 2% but not more than 8%
(b) 2.0 percentage points added to the average of the actual
After-Tax Contribution percentages for eligible Employees who are
not highly compensated Employees.
(c) more than 8%
(c) 1.25 multiplied by the Average After-Tax Contribution percentage
for eligible Employees who are not highly compensated Employees
or, in any case, such lesser amount as the Secretary of the
Treasury shall prescribe to prevent the multiple use of parts (a)
and (b) of this limitation with respect to any highly compensated
Employee.
(e) Committee Actions to Limit Contributions
The Committee shall, to the extent necessary to conform to the
foregoing limitations, reduce the amounts of allowable After-Tax
Savings Contributions and Tax Efficient Savings Contributions,
respectively, for
-11-
the year with respect to any or all eligible Employees who are
highly compensated Employees. Any such reductions by the
Committee shall be made in such manner as the Committee from time
to time may prescribe. For purposes of this section, the Plan
shall satisfy the requirements of Sections 401(k)(3) and 401(m)
of the Code and Treas. Reg. Sections 1.401(k)-1(b) and
1.401(m)-1.
4. Return of Contributions in Excess of Limitations
Subject to such regulations as the Committee from time to time may
prescribe, a Member whose Pre-Tax Savings Contributions to this Plan
and similar contributions to all other plans in which the Member is a
participant exceed the limit of $7,000 multiplied by the
cost-of-living adjustment factor prescribed by the Secretary of the
Treasury for any year may request and receive return of such excess
Pre-Tax Savings Contributions to this Plan for such year and Earnings
thereon by submitting a request for return of such excess in this Plan
to the Committee in such form as shall be acceptable to the Committee.
Such amounts shall be returned to such Member no later than April l5
of the year following the year in which the contributions were made,
to Members who submit such requests to the Committee no later than the
immediately preceding March l.
Pre-Tax Savings Contributions and Earnings thereon in excess of the
limitations in this Section IV applicable to such contributions by
Employees shall be returned to Members on whose behalf such
contributions were made for the preceding Plan Year at such times and
upon such terms as the Committee shall prescribe. Income on excess
contributions shall be allocated in the same manner that income is
allocated to Members' accounts during the Plan Year, and such method
will be used consistently for all affected Members. Notwithstanding
the foregoing provisions, excess Pre-Tax Savings Contributions and
Earnings thereon shall be returned on the basis of the amount of
contributions by or on behalf of Members as provided in Sections
401(k)(8)(C) of the Code.
5. Rollover Contributions
A newly-hired Employee of a Participating Company who elects
membership in the Plan in accordance with Section III may make a
rollover contribution, as permitted under Section 402(a)(5) of the
Internal Revenue Code, to the Plan in cash in an amount not exceeding
the total amount of taxable proceeds distributed to such Employee by a
similar qualified plan maintained by his or her immediately preceding
former employer. The rollover contribution must be made by the
Employee within 60 days following the receipt by the Employee of such
distribution from such former employer's plan. Rollover contributions
shall be invested in accordance with the provisions of Section VII as
the Employee shall elect.
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A Member of the Plan who is reinstated following qualified military
service, as defined in the Uniformed Services Employment and
Reemployment Rights Act, may elect to have contributions made to the
Plan from such Member's Wages paid following such qualified military
service that shall be attributable to the period contributions were
not otherwise permitted due to military service. Such additional
contributions shall be based on the amount of Wages and Profit Sharing
Distributions that the Member would have received but for military
service and shall be subject to the provisions of the Plan in effect
during the applicable period of military service. Such contributions
shall be made during the period beginning upon reemployment following
military service and ending at the lesser of (i) five years or (ii)
the Member's period of military service multiplied by three. Such
additional contributions shall not be taken into account in the year
in which they are made for purposes of any limitation or requirement
identified in Section 414(u)(1) of the Internal Revenue code provided,
however, that such contributions, when added to contributions
previously made, shall not exceed the applicable limits in effect
during the period of military service if the Member had continued to
be employed by the Company during such period. Further, payments on
any loan or loans outstanding during the period of military service
shall be extended for a period of time equal to the period of
qualified military service.
6. Recovery of Contributions
The Company may recover, without interest, the amount of its
contributions made on account of a mistake in fact, provided that such
recovery is made within one year after the date of such contribution.
Any recovery by the Company of its contributions to the Plan shall not
exceed the value at the time of recovery of assets acquired with the
Company's contributions and Earnings thereon.
In the even the deduction of the contribution made by the Company is
disallowed under Section 404 of the Internal Revenue Code, such
contribution (to the extent disallowed) must be returned to the
Company within one year of the disallowance of the deduction.
V. Member's Account in Trust Fund
As soon as practicable after each pay period but in any event not later
than 15 days after the month of payment of wages for such pay period, the
Company shall pay to the Trustee (a) the Pre-Tax Savings and After-Tax
Savings Contributions for such period, and (b) the amounts of payments by
Members with respect to loans and interest thereon pursuant to Section XI
hereof. Upon receipt of such payments by the Trustee, the aggregate amount
of such payments (and earnings thereon, as from time to time received by
the Trustee) shall be credited to the respective accounts of the Members,
and the Trustee shall hold, invest and dispose of the same as provided in
the Plan.
-13-
The corpus or income of the trust may not be diverted to or used for any
purpose other than the exclusive benefit of the Members or their
beneficiaries.
VI. Vesting
The assets credited to a Member's account shall be fully vested and no
portion of such account shall be subject to forfeiture for any reason
whatsoever.
VII. Member's Election as to Investment of Funds
Pre-Tax Savings and After-Tax Savings Contributions made on behalf of a
Member shall be invested as the Member shall elect in one or more of the
Visteon Stock Fund, the Common Stock Fund, the Bond Fund, Fund any
regulated investment companies (mutual funds) from time to time authorized
by the Committee. provided that the amount contributed to any investment
election shall be at least five percent of the amount contributed;
contributions in excess of five percent shall be made in increments of one
percent.
A prospectus for any of the mutual funds shall be delivered promptly to any
Employee upon request of such Employee.
The Committee may in its discretion make additions to or deletions with
respect to the number of additional mutual funds available for investment
under the Plan.
A Member's investment election hereunder shall be confirmed on his or her
Confirmation Statement. Each investment election hereunder with respect to
Wages shall remain in effect until changed by the Member, and may be
changed effective for any pay period in respect of Pre-Tax Savings and
After-Tax Savings Contributions made thereafter by delivering a notice in
such form and in such manner and at such time as the Committee shall
specify. Profit Sharing Distributions that Members elect to have
contributed to the Plan shall be invested in accordance with a Member's
election in effect with respect to weekly wages at the time Profit Sharing
Distributions are contributed to the Plan or, if the Member does not have
in effect such an election with respect to weekly wages, in accordance with
the Member's latest election or, in the absence of any such election, in
the Managed Income Portfolio II.
VIII. Transfer of Assets to Other Investment Elections
Any Member may elect, at such times, in such manner, to such extent and
with respect to such assets as the Committee from time to time may
determine, to have the value of all or part of the assets invested in any
investment election under the Plan in such Member's account transferred by
being invested in such account in such other of the ways in which After-Tax
Savings Contributions and Pre-Tax Savings Contributions may be invested
pursuant to this Section VIII as the Member shall elect; provided, however,
that:
-14-
(a) a Member may make one (1) or more such transfer elections each
business day;
(b) a Member may make such transfer elections in either a dollar amount or
a percentage of the amount invested in such investment election from
which such transfer is elected, in increments of one percent, provided
that the amount transferred is at least the greater of five percent of
the value of the assets in the investment election from which transfer
is elected or $250.00, or, if the amount invested in the investment
election from which transfer is elected is less than $250.00, the
entire value of the assets invested in the investment election from
which transfer is elected; and
(c) all such transfer elections shall be subject to such other regulations
as the Committee may prescribe, which may specify, among other things,
application procedures, minimum and maximum amounts that may be
transferred, procedures for determining the value of assets, the
subject of a transfer election and other matters which may include
conditions or restrictions applicable to transfer elections.
IX. Investment of Dividends, Interest, Etc.
Cash dividends, interest, and the cash proceeds of any other distribution
in respect of any investment funds available under this Plan, shall be
invested in the respective Funds giving rise to the same; except that, all
or a portion of cash dividends paid on Company Stock held in the Visteon
Stock Fund shall be distributed in accordance with the provisions of
Section X to Members who have elected to invest in the Visteon Stock Fund
unless such Members elect not to receive such dividends. Cash dividends on
Company Stock in the Visteon Stock Fund that are not distributed to Members
shall be invested on behalf of the Members entitled thereto in the Visteon
Stock Fund through the purchase of additional Visteon Stock Fund Units.
X. Distribution of Assets
Distribution of all assets in a Member's account shall be governed by the
following provisions:
1. Termination of Employment
In the case of a Member's termination of employment for any reason
(whether voluntary or by discharge, with or without cause), the Cash
Value of Assets in his or her account shall be delivered to the Member
as soon as practicable after the earliest of
-15-
(i) receipt of a request for distribution made by the Member at or
after termination of employment in accordance with the provisions
of Section XII,
(ii) in the case of a Member who has terminated employment, attained
age sixty-five (65), and requested a distribution of the Cash
Value of Assets in his or her account, provided that the request
for distribution is received by the end of the Plan Year in which
the Member attains age sixty-five (65), the distribution shall be
made no later than the 60th day after the close of the Plan Year
in which such Member attains age sixty-five (65),
(iii)attainment of age seventy and one half (70 1/2) in which event
distribution of the Cash Value of Assets in his or her account
shall begin not later than April 1 of the calendar year following
the calendar year in which the Member attains age seventy and one
half (70-1/2) and shall be made over a period of fifteen (15)
years or, if the Member so elects, over the life of the Member or
the lives of the Member and the Member's beneficiary under the
Plan (including the Member's spouse) in accordance with Section
401(a)(9) of the Internal Revenue Code and with regulations
prescribed by the Secretary of the Treasury thereunder and
subject to such regulations as the Committee may prescribe, or
(iv) at termination of employment if the value of the account is less
than $5,000 (determined within 90 days after termination) and was
less than $5,000 on the effective date of any prior withdrawal or
distribution from such Member's account.
2. Dividends on Company Stock in the Visteon Stock Fund
All or a portion of cash dividends paid on shares of Company Stock in
the Visteon Stock Fund shall be distributed proportionately to Members
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 Members who do not reject distribution shall
equal the lesser of (i) the total of such dividends, or (ii) the total
amount of 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 Members who do not reject such distribution to the
number of Visteon Stock Fund units in the accounts of all Members,
such determination to be made as of the dividend record date. The
amount of such dividends that shall be distributed to each Member who
has not rejected such distribution shall be equal to the total amount
of dividends to be distributed multiplied by the ratio of the number
of Visteon Stock Fund units in the account of such Member to the total
number of Visteon Stock Fund units in the accounts
-16-
of all Members who have not rejected such distribution, all determined
as of the end of each business day that is a trading day of the New
York Stock Exchange.
The Committee shall from time to time determine the manner in which
Members shall be provided an opportunity to reject distribution of
Company Stock 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.
A Member to whom such dividends would otherwise be distributed may
reject such distribution in such manner and at such time as the
Committee shall determine.
3. Death of a Member
In the event of death of a Member, distribution shall be made to such
Member's beneficiaries hereunder as soon as practicable after notice
of such Member's death is received by the Company.
Notwithstanding the provisions of the immediately preceding sentence,
(a) if a Member's beneficiary is the Member's surviving spouse, if the
Member has elected a distribution schedule which had commenced by the
Member's date of death, the Member's account shall continue to be paid
to the surviving spouse pursuant to such schedule or, at the spouse's
election at any time, in a lump sum, and (b) if distribution of the
Member's account has not commenced as of the Member's date of death,
the surviving spouse shall, for purposes of the distribution
requirements and options under the Plan, be deemed a Member; except
that the surviving spouse shall be deemed to attain age seventy and
one half (70-1/2) on the date the Member would have attained such age.
Assets held for the benefit of an alternate payee pursuant to a
qualified domestic relations order as defined by section 414(p) of the
Internal Revenue Code of 1986 and section 206(d) of ERISA shall be
distributed prior to the date on which assets would be distributed to
a Member if such order so requires provided that such order requires
distribution of all assets held for the benefit of such alternate
payee.
4. Miscellaneous
For purposes of any distribution of assets in a Member's account
pursuant to this Section X, the Cash Value of Assets in his or her
account shall be reduced by the balance of any loan made to such
Member as provided in Section XI hereof and interest thereon that is
unpaid at the effective date of such distribution. Subject to the
provisions of Section XVII hereof, and subject to such regulations as
the Committee from time to time may prescribe, a Member
-17-
receiving a distribution pursuant to this Section X may direct the
Trustee to make distribution of the Cash Value of Assets in such
Member's Visteon Stock Fund account in the form of whole shares of
Company Stock and cash for any fraction of a share, such distribution
to be at a price per share equal to the current market value of
Company Stock on the effective date of the distribution. The Member so
directing the Trustee shall pay all applicable transfer taxes incident
to the distribution of such shares by the Trustee, and the amount
thereof may be deducted from the payment made by the Trustee to the
Member.
In the event that distribution to a Member or his or her beneficiary
or beneficiaries cannot be made because the identity or location of
such Member or such beneficiary or beneficiaries cannot be determined
after reasonable efforts and if the assets in such Member's account
for that reason remain undistributed for a period of one year, the
Committee may direct that the assets in such Member's account shall be
forfeited and all liability for the payment thereof shall terminate
provided, however, that in the event that the identity or location of
the Member or beneficiary is subsequently determined, the value of the
assets in such Member's account at the date of forfeiture shall be
paid by the Company to such person in a single sum. The value of the
assets so forfeited shall be applied, as soon as practicable, to
reimburse the Company for its expense in administering the Plan. For
such purposes, the value of the assets in such Member's account shall
be determined as of the date of the forfeiture.
5. Rollovers
A Member who would otherwise receive a distribution may elect to have
the Trustee transfer directly to an Individual Retirement Account
("IRA") of the Member or to another employer's plan in which the
Member is a participant all or part of the assets included in the
distribution, including Company Stock, except (i) a distribution
required to be made to a Member who has attained age seventy and one
half (70 1/2) to satisfy the minimum distribution requirements of
section 401(a)(9) of the Internal Revenue Code, (ii) the portion of
the distribution that constitutes a return of the Member's After-Tax
Contributions, and (iii) a hardship withdrawal. Any transfer shall be
subject to such regulations as the Committee from time to time may
prescribe. The Member shall designate the IRA or other employer's plan
to which assets are to be transferred and transfer shall be made
subject to acceptance by the transferee plan or IRA.
6. If the Committee shall find that any person to whom any payment is
payable from the Plan is unable to care for this or her affairs
because of illness, accident, or disability, or is a minor, any
payment due may be paid to the spouse, child, a parent, or a brother
or sister, or to any person deemed by the Committee to have incurred
expense for such person otherwise entitled to payment (unless a prior
claim therefor shall have been made by a duly appointed guardian,
committee or other legal representative). In addition, the Committee
-18-
may make distributions on behalf of minors to parties it deems
appropriate under any Uniform Transfer to Minors Act. Any such payment
shall be a complete discharge of the liabilities of the Plan therefor.
XI. Borrowings with Respect to Assets Attributable to Pre-Tax Savings
Contributions
Subject to such regulations as the Committee from time to time may
prescribe, a Member prior to termination of employment may apply for and
receive a loan from the Plan provided that the aggregate of all such loans
does not exceed the lesser of
(i) fifty percent (50%) of the Cash Value of Assets at the time of
any such loan in his or her account but not more than $50,000; or
(ii) $50,000 reduced by the difference between such Member's highest
loan balance under all plans of the Company and its subsidiaries
during the previous 12 months (ending on the day before the
effective date of such loan from the Plan) and such Member's loan
balance on the effective date of such loan.
The Member may designate the assets to be used to provide the amount of the
loan or, if the Member so elects, such loan shall be made proportionately
from each investment in such Member's account under the Plan. No loan of
less than $1,000 shall be made. All loans from all plans of the Company and
other Members of a group of employers described in Sections 414(b), 414(c),
414(m) and 414(o) of the Internal Revenue Code are aggregated for purposes
of the above limitation in Paragraph (ii).
All such loans shall (i) be available to all Members on a reasonably
equivalent basis, (ii) be adequately secured and (iii) bear a reasonable
rate of interest and be subject to such other requirements, including
repayment terms, as the Committee from time to time may prescribe,
provided, however, that (a) the entire amount of any such loan and all
amounts of related interest must be repaid not later than 60 months or, in
the case of a loan made for the Member to buy or construct the principal
residence of the Member, 120 months (or, when permitted by law, such later
date as the Committee may determine) after the month in which the loan is
effective and (b) repayments shall be made by a Member from his or her
wages by payroll deductions or in such other manner as the Committee may
prescribe. In no event shall the repayment be made less frequently than
once per calendar quarter. The Committee shall determine a rate of interest
such that the Plan is provided with a return commensurate with the interest
rates charged by persons in the business of lending money for loans which
would be made under similar circumstances. Any loan to a Member shall be
secured by such Member's interest in the Plan. All such requirements shall
be applicable on a uniform and non-discriminatory basis to all Members who
may apply for such loans.
Amounts paid by a Member, including interest payments, with respect to any
such loan shall be credited to a loan subaccount in such Member's account.
Loan repayments,
-19-
including interest, shall be invested in the latest investment elections
made by the Member with respect to weekly contributions or, in the absence
of such election, in the Managed Income Portfolio II until the Member
elects to have such assets transferred.
XII. Withdrawal of Assets
Prior to termination of employment a Member shall not be permitted to
withdraw all or any portion of the Cash Value of Assets in the Member's
account; provided, however, that such withdrawal shall be permitted (i) at
any time after the Member shall have attained age fifty-nine and one half
(59-1/2) or (ii) prior to attaining age fifty-nine and one half (59-1/2),
if withdrawal (i) is made on account of an immediate and heavy financial
need of the Member and (ii) is necessary to satisfy such financial need.
At any time or from time to time prior to termination of employment, a
Member may withdraw all or part of the Cash Value of Assets in his or her
After-Tax Savings Account that are attributable to his or her After-Tax
Savings Contributions and Earnings thereon.
At any time after the Member shall have terminated employment or attained
age fifty-nine and one half (59 1/2), a Member may elect to withdraw all or
part of the Cash Value of Assets in such Member's account as the Member may
specify. In addition, a Member may elect to make a systematic withdrawal of
the Cash Value of Assets in such Member's account in monthly, quarterly,
semi-annual or annual installments over such period of time as the Member
shall specify. Each such installment shall be paid in an amount equal to
the Cash Value of Assets in such Member's account at the effective date of
each 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 Member. The cash value of each such installment
in a systematic withdrawal shall be withdrawn proportionately from each of
the investments which the Member has elected under the Plan at the
effective date of each such installment. The effective date of each such
installment shall be selected by the Committee and communicated to Members
of the Plan. Such systematic withdrawals shall be subject to such further
requirements as the Committee shall specify. In the event that the
systematic withdrawals specified by the Member do not meet the minimum
distribution requirements beginning at age seventy and one half (70 1/2)
under section 401(a)(9) of the Internal Revenue Code as specified in
Section X, then such additional amounts shall be distributed in accordance
with the provisions of Section X as necessary to satisfy such minimum
distribution requirements.
An immediate and heavy financial need shall be deemed to exist if the
requirements of Treasury Regulation section 1.401(k)-1(d)(2)(ii)(B) are met
or if an expense of $500 or more is approved by the Committee as
constituting an immediate and heavy financial need. A withdrawal will be
deemed necessary to satisfy such financial need if (i) the withdrawal is
not in excess of the immediate and heavy financial need; (ii) the Member
has no other distribution or nontaxable loan privileges available from any
plan
-20-
maintained by the Company or its subsidiaries; (iii) the Member's
contributions to the Company's savings plans are suspended for twelve
months after the withdrawal; and (iv) the annual limit on Pre-Tax Savings
Contributions in the taxable year of enrollment following the hardship
withdrawal is reduced by the amount of Pre-Tax Savings Contributions made
in the withdrawal year. Any withdrawal on account of financial hardship
cannot exceed the dollar amount of Pre-Tax Savings Contributions made to
the account of the Member, exclusive of Earnings thereon. Any such
withdrawal of assets shall be made as of the date specified by the
Committee in its determination of the existence of a financial hardship.
The assets so withdrawn shall be delivered to the Member as soon as
practicable after the effective date of the withdrawal.
Subject to the provisions of Section XVII hereof, and subject to such
regulations as the Committee from time to time may prescribe, a Member
requesting any such withdrawal other than an installment under a systematic
withdrawal, may direct the Trustee to make distribution of assets in such
Member's Visteon Stock Fund account in the form of whole shares of Company
Stock, and in cash for any fractional share, such distribution to be at a
price per share equal to the current market value of Company Stock on the
effective date of the withdrawal. The Member so directing the Trustee shall
pay all applicable transfer taxes incident to the distribution of such
shares by the Trustee, and the amount thereof may be deducted from the
payment made by the Trustee to the Member.
A Member who would otherwise request a withdrawal may elect to have the
Trustee transfer directly to an Individual Retirement Account ("IRA") of
the Member or to another employer's plan in which the Member is a
participant all or part of the assets included in the withdrawal, including
Company Stock, except (i) a withdrawal made after attainment of age seventy
and one half (70 1/2) to satisfy the minimum distribution requirements
under section 401(a)(9) of the Internal Revenue Code and (ii) the portion
of the withdrawal that constitutes a return of the Member's After-Tax
Contributions, and (iii) a hardship withdrawal. Any transfer shall be
subject to such regulations as the Committee from time to time may
prescribe. The Member shall designate the IRA or other employer's plan to
which assets are to be transferred and transfer shall be made subject to
acceptance by the transferee plan or IRA.
XIII.Visteon Stock Fund, Common Stock Fund, Bond Fund, Interest Income Fund,
and Mutual Funds
1. Visteon Stock Fund
The Trustee shall establish and administer the Visteon Stock Fund in
accordance with the following:
(a) Investments
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For each Member who elects pursuant to Section VII to have
Pre-Tax Savings Contributions and/or After-Tax Savings
Contributions invested in the Visteon Stock Fund or for whom a
transfer is made to the Visteon Stock Fund as provided in Section
VIII hereof, the Trustee shall invest the sums so to be invested
or transferred in accordance with instructions of a person,
company, corporation or other organization appointed by the
Company. The Trustee may be appointed for such purpose.
Investments shall be made primarily in shares of Company Stock; a
small portion shall be invested in short-term investments to
provide liquidity for daily activity. It is expected that about
one to two percent of the Fund will be held in short-term
investments, but the percentage may be higher or lower, depending
upon the expected liquidity requirements of the Fund.
Investments of all or a portion of Visteon Stock Fund assets may
be made in any common, collective or commingled fund when, in the
opinion of the Trustee, such investments are consistent with the
objective of the Visteon Stock Fund.
(b) Visteon Stock Fund Units Members shall have no ownership in any
particular asset of the Visteon Stock Fund. The Trustee shall be
the sole owner of all Visteon Stock Fund assets. Proportionate
interests in the Visteon Stock Fund shall be expressed in Visteon
Stock Fund Units. All Visteon Stock Fund Units shall be of equal
value and no Visteon Stock Fund Unit shall have priority or
preference over any other. Visteon Stock Fund Units shall be
credited by the Trustee to accounts of Members as of each
valuation date.
(c) Visteon Stock Fund Unit Prices
The term "Visteon Stock Fund Unit Price," as used herein, 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 initially determined by dividing the market value of
shares of Company Stock and cash received by the Trustee for
investment in the Visteon Stock Fund by the initial number of
units. Thereafter, the Visteon Stock Fund Unit Price shall be
redetermined at the end of each business day that is a trading
day of the New York Stock Exchange. The Visteon Stock Fund Unit
Price for each such business day shall be determined by dividing
the net asset value of the Visteon Stock Fund on such business
day by the number of Visteon Stock Fund Units outstanding on such
business day. Visteon Stock Fund Unit Prices shall be determined
before giving effect to any distribution or withdrawal and before
crediting contributions to
-22-
Members' accounts effective as of any such business day. 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 business day, 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 Members' accounts with
respect to After-Tax Savings Contributions and Pre-Tax
Savings Contributions made during any month shall be
credited at the Visteon Stock Fund Unit Price determined as
of the close of business on the day that such contributions
are received by the Trustee. Visteon Stock Fund Units
withdrawn or distributed shall be valued at the Visteon
Stock Fund Unit Price at the close of business on the day
coinciding with the effective date of such withdrawal or
distribution.
(iv) Investment transactions, income and any expenses chargeable
to the Visteon Stock Fund will be accounted for on an
accrual basis.
(d) Distribution and Withdrawal From Visteon Stock Fund
The Cash Value of Assets in the Visteon Stock Fund shall be
distributed to Members or may be withdrawn by Members only in
accordance with Sections X and XII hereof. All distributions and
withdrawals shall be in cash, except that a Member making a
withdrawal or receiving a distribution may direct the Trustee to
make such withdrawal or distribution in the form of whole shares
of Company Stock, based on the closing price on the New York
Stock Exchange on the effective date of such withdrawal or
distribution.
-23-
(e) Registered Name
Securities held in the Visteon Stock Fund may be registered in
the name of the Trustee or its nominee.
(f) Commissions Charged to the Plan
No commission shall be charged to the Plan or any trust under the
Plan in connection with any acquisition by the Plan of Company
Stock from the Company, whether by cash purchase, exchange,
conversion or otherwise.
2. Common Stock Fund
The Trustee shall establish and administer the Common Stock Fund in
accordance with the following:
(a) InvestmentsInvestments shall be made with the objective of
providing investment results that closely correspond to the price
and yield performance of the publicly traded Company Stocks (i)
of the 500 corporations included in Standard and Poor's 500 Index
and (ii) of the corporations having capitalizations of at least
$100 million as publicly reported from time to time and not
included in the Standard and Poor's 500 Index. Assets shall be
invested in the Company Stock of each of such corporations in the
same percentage weighting as the capitalization of such
corporation is as a percentage of the total of the
capitalizations of all of such corporations.
Investments of all or a portion of Common Stock Fund assets may
be made in any common, collective or commingled fund when, in the
opinion of the Trustee, such investments are consistent with the
objective of the Common Stock Fund. A portion of the funds of the
Common Stock Fund may be held in cash or invested in short-term
obligations when deemed advisable by the Trustee. Securities may
be sold without regard to the length of time they have been held.
A different market index of publicly traded Company Stocks may be
selected by the Company for investments of Common Stock Fund
assets in the event Standard and Poor's Corporation discontinues
its 500 Index or for other reasons.
(b) Common Stock Fund Units
Members shall have no ownership in any particular asset of the
Common Stock Fund. The Trustee shall be the sole owner of all
Common Stock Fund assets. Proportionate interests in the Common
Stock Fund shall be expressed in Common Stock Fund Units. All
Common Stock Fund Units shall be of equal value and no Common
Stock Fund Unit shall have priority or preference over any other.
Common Stock Fund Units
-24-
shall be credited by the Trustee to accounts of Members as of
such valuation date.
(c) Common Stock Fund Unit Prices
The term "Common Stock Fund Unit Price," as used herein, shall
mean the value in money of an individual Common Stock Fund Unit
expressed to the nearest cent. The initial Common Stock Fund Unit
Price will be determined by dividing the total amounts received
by the Trustee for investment in the Common Stock Fund by the
initial number of Common Stock Fund Units. Thereafter, the Common
Stock Unit Price shall be redetermined at the end of each
business day that is a trading day on the New York Stock
Exchange. The Common Stock Fund Unit Price for each such business
day shall be determined by dividing the net asset value of the
Common Stock Fund on such business day by the number of Common
Stock Fund Units outstanding on such business day. Common Stock
Fund Unit Prices shall be determined before giving effect to any
distribution or withdrawal and before crediting contributions to
Members' accounts effective as of any such business day. Net
asset value of the Common Stock Fund shall be computed as
follows:
(i) Securities listed on a national stock exchange shall be
valued at the closing price on the 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, in either case
as reported on the primary exchange.
(ii) Securities traded only in over-the-counter markets shall be
valued at the mean of the closing bid and asked prices as
listed in a publication or publications selected by the
Trustee for the valuation date, or the next preceding day
for which such prices are available, if not available for
the valuation date.
(iii)All other assets of the Common 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
-25-
value of such fund for a date the same as the valuation
date, or as close thereto as practicable.
(iv) Common Stock Fund Units credited to Members' accounts with
respect to Pre-Tax Savings Contributions made during any
month shall be credited at the Common Stock Fund Unit Price
determined as of the close of business on the day that such
contributions are received by the Trustee. Common Stock Fund
Units withdrawn or distributed shall be valued at the Common
Stock Fund Unit Price at the close of business on the day
coinciding with the effective date of such withdrawal or
distribution.
(v) Investment transactions, income and any expenses chargeable
to the Common Stock Fund will be accounted for on an accrual
basis.
(d) Distribution and Withdrawal From Common Stock Fund
The Cash Value of Assets in the Common Stock Fund shall be
distributed to Members or may be withdrawn by Members only in
accordance with Sections X and XII hereof. All distributions and
withdrawals shall be only in cash.
(e) Voting Stock
The Trustee shall be entitled, itself or by proxy, to vote in its
discretion all shares of voting stock in the Common Stock Fund.
(f) Registered Name
Securities held in the Common Stock Fund may be registered in the
name of the Trustee or its nominee.
3. Bond Fund
The Trustee shall establish and administer the Bond Fund in accordance
with the following:
(a) Investments
For each Member who elects pursuant to Section VII to have
Pre-Tax Savings Contributions and/or After-Tax Savings
Contributions invested in the Bond Fund or for whom a transfer is
made to the Bond Fund as provided in Section VIII hereof, the
Trustee shall invest the sums so to be invested or transferred in
accordance with instructions of a person,
-26-
company, corporation or other organization appointed by the
Company. The Trustee may be appointed for such purpose.
Investments shall be made with the objective of providing
investment results that closely correspond to the price and yield
performance of the Lehman Brothers Aggregate Index (the "Lehman
Aggregate Index"). Assets shall be invested in a portfolio of the
Treasury notes and bonds, corporate notes and bonds and
mortgage-backed securities and other securities that, in the
aggregate, typify the securities that are included in the Lehman
Aggregate Index. Investments of all or a portion of Bond Fund
assets may be made in any common, collective or commingled fund
maintained by the Trustee or the person, company, corporation or
other organization appointed by the Company to manage all or a
portion of the Bond Fund when, in the opinion of the Trustee or
the person, company, corporation or other organization appointed
by the Company to manage all or a portion of the Bond Fund, such
investments are consistent with the objective of the Bond Fund.
To the extent that assets are so invested, they shall be subject
to the terms and conditions of the Declaration of Trust of such
common, collective or commingled fund, as amended from time to
time. A portion of the funds of the Bond Fund may be held in cash
or invested in short-term obligations when deemed advisable by
the Trustee or the person, company, corporation or other
organization appointed by the Company to manage all or a portion
of the Bond Fund. Securities may be sold without regard to the
length of time they have been held. A different market index of
publicly traded fixed income securities may be selected by the
Company for investments of Bond Fund assets in the event the
Lehman Aggregate Index is discontinued or for other reasons.
(b) Bond Fund Units
Members shall have no ownership in any particular asset of the
Bond Fund. The Trustee shall be the sole owner of all Bond Fund
assets. Proportionate interests in the Bond Fund shall be
expressed in Bond Fund Units. All Bond Fund Units shall be of
equal value and no Bond Fund Unit shall have priority or
preference over any other. Bond Fund Units shall be credited by
the Trustee to accounts of Members as of each valuation date.
(c) Bond Fund Unit Prices
The term "Bond Fund Unit Price," as used herein, shall mean the
value in money of an individual Bond Fund Unit expressed to the
nearest cent. The Bond Fund Unit Price as of January 31, 1994
-27-
was determined by the Committee. The number of Bond Fund Units as
of January 31, 1994 was determined by dividing the total amounts
received by the Trustee pursuant to Sections VII and VIII hereof
for investment in the Bond Fund for the month of January, 1994 by
such Bond Fund Unit Price. Thereafter, the Bond Fund Unit Price
shall be redetermined each business day that is a trading day on
the New York Stock Exchange. The Bond Fund Unit Price for each
such business day shall be determined by dividing the net asset
value of the Bond Fund on such business day by the number of Bond
Fund Units outstanding on such business day. Bond Fund Unit
Prices shall be determined before giving effect to any
distribution or withdrawal and before crediting contributions to
Members' accounts effective as of any such business day. Net
asset value of the Bond Fund shall be computed as follows:
(i) All assets of the Bond 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.
(ii) Bond Fund Units credited to Members' accounts with respect
to Pre-Tax Savings Contributions made during any month shall
be credited at the Bond Fund Unit Price determined as of the
close of business on the day that such contributions are
received by the Trustee. Bond Fund Units withdrawn or
distributed shall be valued at the Bond Fund Unit Price at
the close of business on the day coinciding with the
effective date of such withdrawal or distribution.
(iii)Investment transactions, income and any expenses chargeable
to the Bond Fund will be accounted for on an accrual basis.
(d) Distribution and Withdrawal From Bond Fund
The Cash Value of Assets in the Bond Fund shall be distributed to
Members or may be withdrawn by Members only in accordance with
Sections X and XII hereof. All distributions and withdrawals
shall be only in cash.
(e) Registered Name
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Securities held in the Bond Fund may be registered in the name of
the Trustee or its nominee.
4. Mutual Funds
Each of the Mutual Funds offered as an investment election under the
Plan shall be described in a prospectus for each such Mutual Fund and
each such prospectus shall be provided to each Member of the Plan who
requests such prospectus.
XIV. Member's Quarterly Statement
As soon as practicable after the end of each calendar quarter of each year,
there shall be furnished to each Member a statement as of the end of each
such quarter of such year of the cash value of each of the investments in
his or her account, the contributions made on behalf of such Member during
the preceding calendar quarter, the investment elections with respect to
such contributions, and such additional information as the Committee shall
determine. Such statements shall be deemed to have been accepted by the
Member and his or her beneficiaries designated hereunder as correct unless
written notice to the contrary shall be received as the Company shall
specify on such statement within 30 days after the mailing of such
statement to the Member.
XV. Notices, etc.
All notices, statements and other communications from the Trustee or a
Participating Company to an Employee, Member or designated beneficiary
required or permitted hereunder shall be deemed to have been duly given,
furnished, delivered or transmitted, as the case may be, when delivered to
(or when mailed by first-class mail, postage prepaid and addressed to) the
Employee, Member or beneficiary at his or her address last appearing on the
books of such Participating Company or, in the case of an Employee,
delivered to the Employee at his or her normal work station.
All notices, instructions and other communications from an Employee or
Member to the Company or Trustee required or permitted hereunder
(including, without limitation, authorizations, Pre-Tax Savings agreements
and terminations thereof, investment and other elections, requests for
withdrawal or loans and designations of beneficiaries and revocations and
changes thereof) shall be made in such form and such manner from time to
time prescribed therefor by the Committee.
From time to time as necessary to facilitate the administration of the Plan
and the trust created thereunder, the Company, the Trustee and the
Committee shall deliver to each other copies or consolidations of such
notices, instructions or other communications in respect of the Plan or
such trust as it may receive from Employees, Members or beneficiaries.
-29-
XVI. Trustee
The Company shall appoint one or more individuals or corporations to act as
Trustee under the Plan, and at any time may remove the Trustee and appoint
a successor Trustee. The Company may, without reference to or action by any
Employee, Member or beneficiary or any other Participating Company, enter
into such Trust Agreement with the Trustee and from time to time enter into
such further agreements with the Trustee or other parties, make such
amendments to such Trust Agreement or further agreements and take such
other steps and execute such other instruments as the Company in its sole
discretion may deem necessary or desirable to carry the Plan into effect or
to facilitate its administration.
The Trustee and the Company may by mutual agreement in writing arrange for
the delegation by the Trustee to the Committee of any of the functions of
the Trustee, except the custody of assets, the voting of Company Stock held
by the Trustee and the purchase and sale or redemption of securities.
The Trustee shall agree that all information concerning a Member's
investment in the Plan, exchanges in or out of the investment elections, or
the voting of shares of stock represented by a Member's proportionate
interest in the Visteon Stock Fund or any other investment under the Plan
shall not be disclosed to any party except to the extent necessary to
administer the Plan or as required by law. The Committee shall be
responsible for ensuring that the provisions of this Paragraph are complied
with and shall have the authority to determine, in good faith, when and to
what extent disclosure shall be necessary in administering the Plan.
XVII. Purchases of Securities by the Trustee
Pre-Tax Savings and After-Tax Savings Contributions and Earnings thereon in
the accounts of Members shall be invested by the Trustee as soon as
practicable after receipt thereof by the Trustee.
The shares of Company Stock from time to time required for purposes of the
Plan shall be purchased by the Trustee from the Company, or from such other
person or corporation, on such stock exchange or in such other manner, as
the Company by action of its Board of Directors or any committee or person
designated by the Board of Directors, from time to time in its sole
discretion may designate or prescribe; provided, however, that except as
required by any such designation by the Board of Directors, such shares
shall be purchased by the Trustee from such source and in such manner as
the Trustee from time to time in its sole discretion may determine. Any
shares so purchased from the Company may be either treasury stock or
newly-issued stock, and shall be purchased at a price per share equal to
the closing price on the New York Stock Exchange on the date of purchase.
-30-
Anything herein to the contrary notwithstanding, the Trustee shall not
invest any of the funds in the Visteon Stock Fund in any shares of Company
Stock, unless at the time of purchase thereof by the Trustee such shares
shall be listed on the New York Stock Exchange.
The shares of Company Stock held by the Trustee under the Plan shall be
registered in the name of the Trustee or its nominee, but shall not be
voted by the Trustee or such nominee except as provided in Section XVIII
hereof.
In the event that any option, right or warrant shall be received by the
Trustee on Company Stock, the Trustee shall sell the same, at public or
private sale and at such price and upon such other terms as it may
determine, unless the Committee shall determine that such option, right or
warrant should be exercised, in which case the Trustee shall exercise the
same upon such terms and conditions as the Committee may prescribe.
XVIII. Voting of Company Stock
The Trustee, itself or by its nominee, shall be entitled to vote, and shall
vote, shares of Company Stock represented by the proportionate interests in
the accounts of Members in the Visteon Stock Fund or otherwise held by the
Trustee under the Plan as follows:
1. The Company shall adopt reasonable measures to notify the Member 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 instructions from the Member to the Trustee as to the
voting at such meeting of full shares of Company Stock and fractions
thereof represented by the proportionate interest in the Visteon Stock
Fund account of the Member.
2. In each case, the Trustee, itself or by proxy, shall vote full shares
of Company Stock and fractions thereof represented by the
proportionate interest in the Visteon Stock Fund account of the Member
in accordance with the instructions of the Member.
3. If prior to the time of such meeting of stockholders the Trustee shall
not have received instructions from the Member in respect of any
shares of Company Stock represented by the proportionate interest in
the Visteon Stock Fund account of the Member, 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 Members.
-31-
XIX. Cash Adjustments on Account of Fractional Interests in Securities
Any fractional interest in a share of Company Stock shall not be subject to
distribution or withdrawal. Settlement for any fractional interest in such
security, upon distribution or withdrawal thereof, shall be made in cash
based on the current market value or any applicable current redemption
value of such security, as of the date of distribution or withdrawal, as
the case may be.
XX. Operation and Administration
Pursuant to ERISA, the Company shall be the sole named fiduciary with
respect to the Plan and shall have authority to control and manage the
operation and administration of the Plan.
The Vice President-Human Resources, the Vice President and Treasurer and
the Vice President-General Counsel and Secretary shall have the authority,
on behalf of the Company, to appoint and remove trustees under the Plan, to
approve policies relating to the allocation of contributions and the
distribution of assets among trustees, and to approve Plan amendments other
than Plan amendments relating to the offering of Company Stock as an
investment election which amendments shall be made by the Board of
Directors.
The Vice President and Treasurer shall be authorized on behalf of the
Company to contract with the trustees under the Plan and to determine the
form and terms of the trust agreements, to allocate contributions and
distribute assets among trustees, and to appoint an auditor under the Plan,
and shall have authority to designate other persons to carry out specific
responsibilities in connection therewith; provided, however, that such
actions shall be consistent with ERISA, the policy of the Board of
Directors and officers designated in the preceding Paragraph and the Plan.
Except as otherwise provided in this Section XX or elsewhere in the Plan,
the Vice President-Human Resources and the Vice President and Treasurer are
designated to carry out the Company's responsibilities with respect to the
Plan, including, without limitation, appointment and removal of Members of
the Committee and determination of prior service for eligibility purposes
under the Plan in the event of acquisition by a Participating Company (by
purchase, merger, or otherwise) of all or part of the assets of another
corporation. The Vice President-Human Resources and the Vice President and
Treasurer may allocate responsibilities between themselves and may
designate other persons to carry out specific responsibilities on behalf of
the Company.
Any Company director, officer or Employee who shall have been expressly
designated pursuant to the Plan to carry out specific Company
responsibilities shall be acting on behalf of the Company. Any person or
group of persons may serve in more than one capacity with respect to the
Plan and may employ one or more persons to render advice with regard to any
responsibilities such person has under the Plan.
-32-
The Company shall create a Committee consisting of at least three Members.
The Company shall from time to time designate the Members of the Committee
and an alternate for each of such Members, who shall have full power to act
in the absence or inability to act of such Member. The Committee shall
appoint its own Chairman and Secretary, and shall act by a majority of its
Members, with or without a meeting. The Secretary or an Assistant Secretary
of the Company shall from time to time notify the Trustee of the
appointment of Members of the Committee and alternates and of the
appointment of the Chairman and Secretary of the Committee, upon which
notices the Trustee shall be entitled to rely. The Committee shall have
full power and authority to administer the Plan and to interpret its
provisions. Any interpretation of the provisions of the Plan by the
Committee shall be final and conclusive, and shall bind and may be relied
upon by the several Participating Companies, each of their Employees, the
Trustee and all other parties in interest. No Member of the Committee or
alternate for a Member or director, officer or Employee of any
Participating Company shall be liable for any action or failure to act
under or in connection with the Plan, except for his or her own lack of
good faith; provided, however, that nothing herein shall be deemed to
relieve any such person from responsibility or liability for any obligation
or duty under ERISA. Each director, officer, or Employee of the Company who
is or shall have been designated to act on behalf of the Company and each
person who is or shall have been a Member of the Committee or an alternate
for a Member or a director, officer or Employee of any Participating
Company, as such, shall be indemnified and held harmless by the Company
against and from any and all loss, cost, liability or expense that may be
imposed upon or reasonably incurred by him or her in connection with or
resulting from any claim, action, suit or proceeding to which he or she may
be a party or in which he or she may be involved by reason of any action
taken or failure to act under the Plan and against and from any and all
amounts paid by him or her in settlement thereof (with the Company's
written approval) or paid by him or her in satisfaction of a judgment in
any such action, suit or proceeding, except a judgment in favor of the
Company based upon a finding of his or her lack of good faith; subject,
however, to the condition that, upon the assertion or institution of any
such claim, action, suit or proceeding against him or her, he or she shall
in writing give the Company an opportunity, at its own expense, to handle
and defend the same before he or she undertakes to handle and defend it on
his or her own behalf. The foregoing right of indemnification shall not be
exclusive of any other right to which such person may be entitled as a
matter of law or otherwise, or any power that a Participating Company may
have to indemnify him or her or hold him or her harmless.
Brokerage commissions, fees and transfer taxes incurred in connection with
the purchase or sale of Company Stock shall be paid by the Company.
Brokerage commissions and transfer taxes on the purchase and sale of Common
Stock Fund securities shall be paid from Common Stock Fund assets by the
Trustee, and the expenses of any collective, common, or commingled fund in
which Common Stock Fund assets may be invested pursuant to Paragraph 2 of
Section XIII hereof shall be paid from the assets in such collective,
common or commingled fund. Brokerage commissions and transfer taxes on the
purchase and sale of Bond Fund securities and
-33-
the expenses of the Bond Fund including, without limitation, investment
management fees shall be paid from Bond Fund assets, and the expenses of
any collective, common, or commingled fund in which Bond Fund assets may be
invested pursuant to Paragraph 3 of Section XIII hereof shall be paid from
the assets in such collective, common or commingled fund. Earnings credited
to the account of the Trustee under the Bond Fund shall be net of such
charges by the Bond Fund Manager as may be provided in such contract.
Brokerage commissions and transfer taxes on the purchase and sale of
Interest Income Fund securities shall be paid from Interest Income Fund
assets by the Trustee and the expenses of any collective, common, or
commingled fund in which Interest Income Fund assets may be invested
pursuant to Paragraph 4 of Section XIII hereof shall be paid from the
assets in such collective, common or commingled fund. All management fees,
redemption fees and all other expenses of any mutual funds offered as an
investment election under the Plan shall be paid from assets in such mutual
funds or charged to the accounts of Members who elect to invest in such
mutual funds. All other expenses of administration of the Plan, including
expenses charged or incurred by the Trustee or the Company, shall be borne
by the Company. Taxes, if any, on any Visteon Stock Fund Units, Common
Stock Fund Units or Bond Fund Units held by the Trustee or income therefrom
which are payable by the Trustee shall be charged against the Members'
accounts as the Trustee and the Committee shall determine.
The records of the Trustee, the Committee and the several Participating
Companies shall be conclusive in respect of all matters involved in the
administration of the Plan.
The Plan shall be governed by and construed in accordance with the laws of
the State of Michigan.
XXI. Termination, Suspension and Modification
The Company, by action of its Board of Directors, or officers designated
under Section XX hereof, may terminate or modify the Plan or suspend the
operation of any provision of the Plan, as follows:
1. The Company may terminate the Plan at any time or may at any time or
from time to time modify the Plan, in its entirety or in respect of
the Employees of one or more of the Participating Companies. The
Company may at any time or from time to time terminate or modify the
Plan or suspend for any period the operation of any provision thereof,
in respect of any Employees located in one or more states or
countries, if in the judgment of the Committee compliance with the
laws of such state or country would involve disproportionate expense
and inconvenience to a Participating Company. Any such modification
that affects the rights or duties of the Trustee may be made only with
the consent of the Trustee. Any such termination, modification or
suspension of the Plan may affect Members in the Plan at the time
thereof, as well as future Members, but may not affect the rights of a
Member as to the continuance of investment,
-34-
distribution or withdrawal of the Cash Value of Assets in the account
of the Member as of the effective date of such termination,
modification or suspension and Earnings thereon; provided, however,
that the Company may, in the event of a termination of the Plan,
direct the Trustee to distribute the assets in the accounts of Members
in the Plan to such Members. Any termination or modification of the
Plan or suspension of any provision thereof shall be effective as of
such date as the Company may determine, but not earlier than the date
on which the Company shall give notice of such termination,
modification or suspension to the Trustee and to the Participating
Companies any of the Employees of which are affected thereby.
2. The provisions of the foregoing Paragraph 1 notwithstanding, the
Company, by action of its Vice President-Human Resources, Vice
President and Treasurer and Vice President-General Counsel and
Secretary, at any time or from time to time may modify any of the
provisions of the Plan in any respect retroactively, if and to the
extent necessary or appropriate in the judgment of such officers of
the Company to qualify or maintain the Plan and the trust fund
established thereunder as a plan and trust meeting the requirements of
Section 401(a) and 501(a) of the Internal Revenue Code of 1986, as now
in effect or hereafter amended, or any other applicable provisions of
Federal tax laws or other legislation, as now in effect or hereafter
amended or adopted, and the regulations thereunder at the time in
effect.
3. Anything herein to the contrary notwithstanding, no such termination
or modification of the Plan or suspension of any provision thereof may
diminish the Cash Value of Assets in the account of a Member as of the
effective date of such termination, modification or suspension.
4. In the event of any merger or consolidation with, or transfer of
assets or liabilities to, any other plan, each Employee Member, former
Employee, former Member, beneficiary or estate eligible under the Plan
shall, if the Plan is then terminated, receive a benefit immediately
after the merger, consolidation or transfer, which is equal to the
benefit he or she would have been entitled to receive immediately
before the merger, consolidation or transfer if the Plan had then
terminated.
XXII.Conditions on Participation of Subsidiaries of the Company
The consent of the Company to the participation in the Plan of any
Subsidiary of the Company may be conditioned upon such provisions as the
Company may prescribe, including, without limitation, conditions as to (a)
the instruments to be executed and delivered by such Participating Company
to the Trustee, (b) the extent to which the Company shall act as
representative of such Participating Company under the Plan, and (c) the
rights of such Participating Company to withdraw from participation in the
Plan
-35-
and the effect of such withdrawal upon the Memberships and accounts in the
Plan of Employees of such Participating Company.
XXIII. Member's Rights Not Transferable
No right or interest of any Member under the Plan or in his or her account
shall be assignable or transferable, in whole or in part, either directly
or by operation of law or otherwise, including, without limitation, by
execution, levy, garnishment, attachment, pledge or in any other manner,
except in accord with provisions of a qualified domestic relations order as
defined by section 414(p) of the Internal Revenue Code of 1986 and section
206(d) of ERISA and further excluding devolution by death or mental
incompetency; no attempted assignment or transfer thereof shall be
effective; and no right or interest of any Member under the Plan or in his
or her account shall be liable for, or subject to, any obligation or
liability of such Member.
XXIV. Designation of Beneficiaries
1. A Member may file with the Company a written designation of a
beneficiary or beneficiaries with respect to all or part of the assets
in the Member's account. In the case of a married Member who dies, the
Cash Value of Assets in such Member's account shall be delivered to
such Member's surviving spouse unless the written designation of
beneficiary designating a person or persons other than the spouse with
respect to all or part of the assets in the Member's account includes
the written consent of the spouse, witnessed by a notary public. A
Member, if married, with such written consent of the spouse, may from
time to time revoke or change any such designation of beneficiary.
2. In the case of an unmarried Member who does not file a written
designation of beneficiary, such Member shall be deemed to have
designated as beneficiary or beneficiaries under the Plan the person
or persons who are entitled in the event of the Member's death to
receive the proceeds under the Company's Group Life and Disability
Insurance Program if the Member is covered under such Program at the
date of his or her death.
3. In the event of the death of a Member, the Cash Value of Assets in his
or her account under the Plan shall be delivered to, as applicable,
such spouse or beneficiaries who shall survive the Member, in
accordance with the applicable designation (to the extent effective
and enforceable at the time of the Member's death) and the provisions
of the Plan, subject to such regulations as the Committee from time to
time may prescribe in respect of distributions to minors; provided,
however, that if the Trustee or the Committee shall be in doubt as to
the right of any such person to receive any of the cash value of such
assets, the Trustee may deliver the same to the estate of the Member,
in which case the Trustee, the several Participating Companies and the
Committee and the several Members thereof and alternates for Members
shall not be under any
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further liability to anyone. Except as hereinabove provided, in the
event of the death of a Member, Cash Value of Assets in his or her
account under the Plan shall be delivered to his or her estate.
XXV. Limitation on Contributions under Section 415 of the Internal Revenue Code
Notwithstanding any other provision of the Plan, the sum of any Pre-Tax
Savings and After-Tax Savings Contributions for any limitation year shall
not exceed the applicable limits set by section 415 of the Internal Revenue
Code and the regulations thereunder. For purposes of this Section XXV,
"limitation year" shall mean the 12-month period beginning April 1.
XXVI. Transfer of Assets to or From the Plan
A Member may elect to have the Plan accept a transfer from a savings plan
of a Subsidiary where the Member was previously employed of any fully
vested amounts, either in the form of cash or Company Stock, provided that
such acceptance would not require the Plan to provide benefits in an amount
or form not otherwise provided under the Plan in order to preserve an
accrued benefit under the transferor plan. Amounts transferred would be
invested in accordance with the Member's election among investment
elections available under the Plan made at the time of election to have
assets transferred. Thereafter, all such assets shall be subject to all
provisions of the Plan applicable to any other assets credited to the
accounts of Members. A Member who is no longer eligible to contribute to
the Plan may elect to have transferred from the Plan all, but not less than
all, assets in such Member's account under the Plan, either in the form of
cash or Company Stock, to a savings plan of a subsidiary where the Member
is currently employed, subject to acceptance by the transferee plan.
XXVII. Employee Stock Ownership Plan
1. There is established in the Plan an employee stock ownership plan
("ESOP"). The ESOP consists of all the shares of Company Stock in the
Plan at any time and from time to time including all the shares in the
Visteon Stock Fund.
2. The trustee of the ESOP shall be the Trustee of the Plan or such other
qualified organization as the Company shall select (the "Trustee of
the ESOP"). The Trustee of the Plan and the Trustee of the ESOP shall
hold, invest, transfer and distribute the shares of Company Stock and
all other assets in the ESOP in accordance with the provision of this
Section XXVII and the Plan. In the event the Company selects an
organization other than the Trustee of the Plan to be Trustee of the
ESOP, their duties under the ESOP shall be allocated between them as
hereinafter provided or in accordance with the provisions of the trust
agreements appointing such Trustee of the Plan and Trustee of the
ESOP.
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(i) The Trustee of the ESOP, upon the receipt of appropriate
instructions from the Company, is authorized to borrow such
amount from such persons, including the Company, as the Trustee
of the ESOP shall determine. The loan shall provide for
repayment, within such period as the Trustee of the ESOP shall
have selected, and shall be payable on such other terms as the
Trustee of the ESOP in its sole discretion shall determine. The
interest rate of a loan must not be in excess of a reasonable
rate of interest.
(ii) The proceeds of any such loan shall be used by the Trustee of the
ESOP to purchase as soon as practicable shares of Company Stock
in accordance with the provisions of Section XVII hereof. The
Trustee of the ESOP is authorized to pledge such stock as
security for payment of such loan. The loan shall be without
recourse against the ESOP.
3. The Trustee of the ESOP shall hold the shares of Company Stock so
purchased in the Plan in a suspense account unallocated until such
time as all or part of the related loan and interest thereon is paid
as hereinafter provided. The Trustee of the ESOP shall vote shares of
Company Stock in the suspense account in its discretion,
notwithstanding the provisions of Section XVIII hereof.
4. The Trustee of the Plan and the Trustee of the ESOP shall apply
dividends paid on Company Stock held in the ESOP with respect to which
a loan was taken, including shares held in the Visteon Stock Fund, to
payment of such loan made in accordance with Paragraph 3 hereof and
interest thereon.
In the event that such dividends paid on Company Stock are not
sufficient to enable the Trustee of the ESOP to make any payment on
such loan the Trustee of the ESOP shall sell shares of Company Stock
held in the suspense account in an amount necessary to permit such
payment provided, however, that the Company may elect to make an
additional contribution to the Plan by making payment to the Trustee
of the ESOP in an amount sufficient to enable the Trustee of the ESOP
to make all or part of such payment without selling shares of Company
Stock held in the suspense account.
In the event that such dividends paid on Company Stock and the amount
realized from the sale of Company Stock held in the suspense account
are not sufficient to enable the Trustee of the ESOP to make any
payment on such loan, the Company shall make an additional
contribution to the Plan by making payment to the Trustee of the ESOP
in an amount sufficient to enable the Trustee of the ESOP to make such
payment or shall pay such amount to the lender.
5. The shares held in the suspense account shall be released from the
suspense account to the Trustee of the Plan in an amount that bears
the same ratio to the total number of shares in the suspense account
as the amount of principal and interest paid on the loan bears to the
total amount of principal and interest
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outstanding. The Trustee of the Plan shall allocate such shares so
released to the Visteon Stock Fund and the accounts of Members who
have elected to invest in the Visteon Stock Fund shall be adjusted as
if the dividends paid on Company Stock with respect to shares held in
the Visteon Stock Fund had been used to acquire shares of Company
Stock in the open market on the last day of the month preceding the
date such shares are released from the suspense account.
To the extent that the number of shares released from the suspense
account at any time is less than the number that would be required for
allocation to the Visteon Stock Fund if the dividends paid on Company
Stock had been used to acquire shares of Company Stock in the open
market at the closing price on the New York Stock Exchange on the
dividend payment date, the Company shall make an additional
contribution to the Plan in an amount sufficient to permit the Trustee
of the ESOP to acquire additional shares so that the value at the
closing price on the dividend payment date of the shares released to
the Trustee of the Plan plus cash, if any, shall equal the dividends
paid by the Trustee of the Plan with respect to Company Stock to the
Trustee of the ESOP.
To the extent that the number of shares released from the suspense
account at any time exceeds the number that would be required if the
dividend paid on Company Stock had been used to acquire shares of
Company Stock in the open market, the excess shall be held by the
Trustee of the ESOP and released at the end of the calendar year to
the Trustee of the Plan for an addition to the Visteon Stock Fund and
allocation of additional units in the Visteon Stock Fund to the
accounts of Members in an amount proportional to the number of Visteon
Stock Fund units in their accounts.
6. Contributions to the ESOP for any eligible Employee who is a highly
compensated Employee shall be limited to the extent required under the
principles described in Section IV with respect to Pre-Tax Savings
Contributions.
7. The Committee is authorized to make such adjustments in the
administration of the Plan and the ESOP as it deems necessary,
appropriate or desirable to carry out the purposes and intents of this
Section XXVII.
8. In the event that any or all of the tax benefits available under the
tax laws on the effective date hereof are restricted or eliminated, as
determined by the Company, the Trustee of the ESOP is authorized upon
direction by the Company to sell upon such terms, at such times and to
such persons, as the Trustee of the ESOP in its sole discretion shall
determine, any or all of the shares of Company Stock in the suspense
account and to use the proceeds of such sale to pay all or part of the
loan balance outstanding, together with interest thereon. Any excess
shares in the suspense account at such time shall be allocated as
provided in Paragraph 6 hereof.
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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 1,000,000 shares of Common Stock, par value $1.00 per share, of the
Company ("Common Stock"), relating to the Company's Investment Plan for Hourly
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 Hourly 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