Delaware
|
3714 | 38-3519512 | ||
(State or other jurisdiction
of
incorporation or organization) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer
Identification No.) |
Large accelerated
filer
o
|
Accelerated filer o |
Non-accelerated
filer
o
(Do not check if a smaller reporting company) |
Smaller reporting company þ |
Proposed Maximum
|
Proposed Maximum
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Amount of
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Title of Each Class of
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Amount
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Offering Price
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Aggregate
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Registration
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||||||||
Securities to be Registered | to be Registered | per Share | Offering Price(1) | Fee(2) | ||||||||
Common stock, par value $0.01 per share
|
46,972,866 | $ 62.50 | $ 2,935,804,125 | $ 209,322.83 | ||||||||
(1) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities act of 1933, as amended (the Securities Act). |
(2) | Calculated pursuant to Rule 457(o) under the Securities Act based on an estimate of the maximum aggregate offering price. |
The
information in this prospectus is not complete and may be
changed. The selling stockholders may not sell these securities
until the registration statement filed with the Securities and
Exchange Commission relating to these securities is effective.
This prospectus is not an offer to sell these securities and it
is not a solicitation of an offer to buy these securities in any
jurisdiction where such offer, solicitation or sale is not
permitted.
|
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EX-5.1
EX-10.11
EX-10.12
EX-10.13
EX-10.14
EX-23.1
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24
25
26
27
28
our ability to satisfy future capital and liquidity
requirements; including our ability to access the credit and
capital markets at the times and in the amounts needed and on
terms acceptable to us; our ability to comply with covenants
applicable to it; and the continuation of acceptable supplier
payment terms;
our ability to satisfy pension and other post-retirement
employee benefit obligations, and to retire outstanding debt and
satisfy other contractual commitments, all at the levels and
times planned by management;
our ability to access funds generated by foreign subsidiaries
and joint ventures on a timely and cost effective basis;
changes in the operations (including products, product planning
and part sourcing), financial condition, results of operations
or market share of our customers.
changes in vehicle production volume of our customers in the
markets where we operate, and in particular changes in
Fords and Hyundai Kias vehicle production volumes
and platform mix;
our ability to profitably win new business and to maintain
current business with, and win future business from, existing
customers, and, our ability to realize expected sales and
profits from new business;
increases in commodity costs or disruptions in the supply of
commodities, including steel, resins, aluminum, copper, fuel and
natural gas;
our ability to generate cost savings to offset or exceed agreed
upon price reductions or price reductions to win additional
business and, in general, improve operating performance; to
achieve the benefits of restructuring actions; and to recover
engineering and tooling costs and capital investments;
our ability to compete favorably with automotive parts suppliers
with lower cost structures and greater ability to rationalize
operations; and to exit non-performing businesses on
satisfactory terms, particularly due to limited flexibility
under existing labor agreements;
restrictions in labor contracts with unions that restrict our
ability to close plants, divest unprofitable, noncompetitive
businesses, change local work rules and practices at a number of
facilities and implement cost-saving measures;
the costs and timing of facility closures or dispositions,
business or product realignments, or similar restructuring
actions, including potential asset impairment or other charges
related to the implementation of these actions or other adverse
industry conditions and contingent liabilities;
significant changes in the competitive environment in the major
markets where we procure materials, components or supplies or
where our products are manufactured, distributed or sold;
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legal and administrative proceedings, investigations and claims,
including stockholder class actions, inquiries by regulatory
agencies, product liability, warranty, employee-related,
environmental and safety claims and any recalls of products
manufactured or sold by us;
changes in economic conditions, currency exchange rates, changes
in foreign laws, regulations or trade policies or political
stability in foreign countries where we procure materials,
components or supplies or where products are manufactured,
distributed or sold;
shortages of materials or interruptions in transportation
systems, labor strikes, work stoppages or other interruptions to
or difficulties in the employment of labor in the major markets
where we purchase materials, components or supplies to
manufacture our products or where our products are manufactured,
distributed or sold;
changes in laws, regulations, policies or other activities of
governments, agencies and similar organizations, domestic and
foreign, that may tax or otherwise increase the cost of, or
otherwise affect, the manufacture, licensing, distribution,
sale, ownership or use of our products or assets.
possible terrorist attacks or acts of war, which could
exacerbate other risks such as slowed vehicle production,
interruptions in the transportation system or fuel prices and
supply;
the cyclical and seasonal nature of the automotive industry;
our ability to comply with environmental, safety and other
applicable regulations and any increase in the requirements,
responsibilities and associated expenses and expenditures of
these regulations;
our ability to protect our intellectual property rights, and to
respond to changes in technology and technological risks and to
claims by others that we have infringed their intellectual
property rights;
our ability to quickly and adequately remediate control
deficiencies in internal control over financial
reporting; and
other factors, risks and uncertainties detailed from time to
time in our Securities and Exchange Commission (SEC)
filings.
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Our Annual Report on
Form 10-K
for the year ended December 31, 2009;
Our Quarterly Reports on
Form 10-Q
for the periods ended March 31, 2010 and June 30,
2010; and
Our Current Reports on
Form 8-K
(and amendments thereto) filed on March 17, 2010,
May 12, 2010, May 27, 2010, June 14, 2010,
June 17, 2010, July 30, 2010, September 7, 2010,
September 28, 2010, October 1, 2010, October 4,
2010 and October 19, 2010.
Visteon Corporation
One Village Center Drive
Van Buren Township, MI 48111
Tel. No.
(734) 710-5800
iv
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1
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2
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Issuer
Visteon Corporation
Shares of common stock offered by the selling stockholders
46,972,866 shares of common stock
Shares of common stock outstanding after this offering
50,309,187 shares of common stock
Use of Proceeds
We will not receive any proceeds from the sale of shares of the
common stock by the selling stockholders.
Risk Factors
Investing in our common stock involves substantial risk. For a
discussion of risks relating to Visteon, our business and
investment in our common stock, see the section titled
Risk Factors on page 8 of this prospectus and
all other information set forth in this prospectus before
investing in our common stock.
OTC Bulletin Board Symbol
VSTO.OB
3
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4
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our operating and financial performance and prospects;
our ability to repay our debt;
our access to financial and capital markets to refinance our
debt or replace the existing credit facilities;
investor perceptions of us and the industry and markets in which
we operate;
our dividend policy;
future sales of equity or equity-related securities;
changes in earnings estimates or buy/sell recommendations by
analysts; and
general financial, domestic, economic and other market
conditions.
5
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incur additional debt;
make certain investments;
enter into certain types of transactions with affiliates;
limit dividends or other payments by our restricted subsidiaries
to us;
use assets as security in other transactions;
pay dividends on our new common stock or repurchase our equity
interests;
sell certain assets or merge with or into other companies;
guarantee the debts of others;
enter into new lines of business;
make capital expenditures;
prepay, redeem or exchange our debt; and
form any joint ventures or subsidiary investments.
6
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High
Low
$
57.00
$
62.50
7
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Reorganization adjustments give effect to the Plan of
Reorganization and the transactions contemplated therein.
Fresh start adjustments reflect the adoption of fresh-start
accounting, in accordance with GAAP.
the cancellation of any shares of old common stock and any
options, warrants or rights to purchase shares of old common
stock or other equity securities outstanding prior to the
Effective Date;
the issuance of approximately 50,200,000 new shares of common
stock (excluding any shares that may be issued upon the exercise
of warrants), including the following:
approximately 45,000,000 shares of new common stock to
certain investors in a private offering exempt from registration
under the Securities Act for proceeds of $1.25 billion;
approximately 2,500,000 shares of new common stock to
holders of pre-petition notes, including 7% Senior Notes
due 2014, 8.25% Senior Notes due 2010 and
12.25% Senior Notes due 2016;
approximately 1,700,000 shares of new common stock to
management pursuant to a post-emergence management equity
incentive program; and
approximately 1,000,000 shares of new common stock to
holders of old common stock;
the execution of an exit financing facility including
$500 million in funded, secured debt and a $200 million
asset-based, secured revolver, which is expected to be undrawn
at the Effective Date; and
the application of proceeds from such borrowings and sales of
equity along with cash on hand to make settlement distributions
contemplated under the Plan of Reorganization.
8
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9
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UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF
OPERATIONS
Six Months Ended June 30, 2010
Reorganization
Fresh Start
Historical
Adjustments
Adjustments
Pro Forma
(Dollars in millions, except per share amounts)
$
3,735
$
$
$
3,735
114
114
3,849
3,849
3,214
40
(a)
126
(g)
3,380
113
113
3,327
40
126
3,493
522
(40
)
(126
)
356
201
(3
)(b)
(14
)(h)
184
69
(69
)(c)
17
17
25
25
210
32
(112
)
130
135
(107
)(d)
28
6
6
65
65
146
139
(112
)
173
75
(e)
(e)
75
71
139
(f)
(112
)
98
39
(i)
39
$
32
$
139
$
(112
)
$
59
130.3
50.3
(j)
$
0.25
$
1.17
(j)
130.3
52.3
(j)
$
0.25
$
1.13
(j)
10
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UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF
OPERATIONS
Twelve Months Ended December 31, 2009
Reorganization
Fresh Start
Historical
Adjustments
Adjustments
Pro Forma
(Dollars in millions, except per share amounts)
$
6,420
$
$
$
6,420
265
265
6,685
6,685
5,827
52
(a)
18
(g)
5,897
261
261
6,088
52
18
6,158
597
(52
)
(18
)
527
331
40
(b)
62
(h)
433
84
84
62
62
60
(60
)(c)
106
106
290
(32
)
(80
)
178
117
(55
)(d)
62
11
11
80
80
264
23
(80
)
207
80
(e)
1
(e)
81
184
23
(f)
(81
)
126
56
(1
)(i)
55
$
128
$
23
$
(80
)
$
71
130.4
50.3
(j)
$
0.98
$
1.41
(j)
130.4
52.3
(j)
$
0.98
$
1.36
(j)
11
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(a)
Cost of sales increased by $40 million and by
$52 million for the six months ended June 30, 2010 and
the twelve months ended December 31, 2009, respectively, as
shown below:
Six Months
Twelve Months
Ended
Ended
June 30, 2010
December 31, 2009
(Dollars in millions)
$
38.0
$
39.0
2.0
13.0
$
40.0
$
52.0
In connection with the Plan of Reorganization, the Company
settled certain OPEB obligations and ceased to provide such
benefits. The adjustment above eliminates the net benefit
associated with such settlements from the historical financial
results. Additionally, the historical financial results have
been adjusted to reflect new management incentive compensation
arrangements as contemplated under the Plan of Reorganization,
including share-based compensation granted in connection with
the Management Equity Incentive Program.
(b)
This adjustment reflects changes in Selling, general and
administrative expenses in connection with implementation of the
Plan of Reorganization as shown below:
Six Months
Twelve Months
Ended
Ended
June 30, 2010
December 31, 2009
(Dollars in millions)
$
(2.0
)
$
61.0
(19.0
)
(1.0
)
(2.0
)
$
(3.0
)
$
40.0
(c)
Reflects the elimination of bankruptcy-related reorganization
expenses of $69 million and $60 million for the six
months ended June 30, 2010 and for the twelve months ended
December 31, 2009, respectively. The Company expects to
incur post emergence Chapter 11 related costs, including
professional fees, that are not included in the Pro Forma
Financial information as such costs are considered to be
non-recurring.
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(d)
This adjustment reflects changes in interest expense associated
with the post-emergence capital structure contemplated under the
Plan of Reorganization, which includes a $500 million term
loan and a $200 million revolving line of credit that is
assumed to be undrawn at the Effective Date. These changes
result in a net decrease of $107 million for the six months
ended June 30, 2010 and a net decrease of $55 million
for the year ended December 31, 2009, as shown below:
Six Months
Twelve Months
Ended
Ended
June 30, 2010
December 31, 2009
(Dollars in millions)
$
20.0
$
40.0
1.0
2.0
1.0
2.0
1.0
2.0
23.0
46.0
(130.0
)
(101.0
)
$
(107.0
)
$
(55.0
)
The expected interest rate on the post-emergence secured term
loan is the London Interbank Borrowing Rate (LIBOR),
not less than 1.75%, plus a margin of 6.25%. The Company
estimates its weighted average interest rate will be
approximately 8% based on current LIBOR rates. A one percent
increase or decrease on the expected weighted average interest
rate would increase or decrease interest expense on the
post-emergence debt by $5 million.
The Company estimates debt issuance costs to be approximately
$16 million, fees paid to the lenders to be approximately
$12 million and original issuance discount to be
approximately $10 million. Debt issuance costs are
amortized over the remaining life of the respective debt
instrument. The original issuance discount and fees paid to
lenders are reflected as a reduction to the carrying value of
the debt and are accreted over the life of the debt instrument
through interest expense.
Additionally, the Company will pay a commitment fee on undrawn
amounts under the revolving line of credit of between 0.50% and
0.75% per annum based on availability.
(e)
Reflects the net change in estimated total income tax provision
associated with reorganization and fresh start adjustments for
the six months ended June 30, 2010 and for the twelve
months ended December 31, 2009. These changes are based on
the application of enacted statutory tax rates to the pro forma
adjustments by jurisdiction affecting only those without a full
valuation allowance.
(f)
The gain resulting from the cancellation of indebtedness
pursuant to the Plan of Reorganization of approximately
$1.0 billion has been excluded from the pro forma
adjustments because this amount will not continue post emergence.
(g)
Cost of sales for the six months ended June 30, 2010 and
the twelve months ended December 31, 2009 are estimated to
increase by $126 million and $18 million,
respectively, associated with fair market value adjustments as
shown below:
Six Months
Twelve Months
Ended
Ended
June 30, 2010
December 31, 2009
(Dollars in millions)
$
143.0
$
96.0
(26.0
)
(96.0
)
9.0
18.0
$
126.0
$
18.0
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Additionally, the Company estimates that Cost of sales will
increase $30 million during the first 30 to 60 days
post emergence (first inventory turn) due to the write up of
inventory to fair value. This cost has been excluded from the
Pro Forma Financial Information as this amount is considered to
be non-recurring.
(h)
Selling, general and administrative expenses are estimated to
decrease by $14 million for the six months ended
June 30, 2010 and to increase by $62 million for the
twelve months ended December 31, 2009, associated with fair
value adjustments, as shown below:
Six Months
Twelve Months
Ended
Ended
June 30, 2010
December 31, 2009
(Dollars in millions)
$
(14.0
)
$
69.0
(4.0
)
(16.0
)
4.0
9.0
$
(14.0
)
$
62.0
(i)
These adjustments account for the noncontrolling interest
portion of the depreciation and amortization adjustments
discussed in (g) and (h) above.
(j)
For purposes of the Companys basic and diluted pro forma
earnings per share calculations, the Company has used the
following amounts of shares of common stock of reorganized
Visteon outstanding as of the Effective Date:
45,145,000
3,497,520
1,666,667
50,309,187
1,962,297
52,271,484
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UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE
SHEET
15
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(a)
The Companys cash and equivalents reflects a net decrease
of $98 million after implementing the Plan of
Reorganization. The significant sources and uses of cash are as
follows:
$
1,250.0
478.0
106.0
1,834.0
1,630.0
127.0
22.0
60.0
75.0
9.0
9.0
1,932.0
$
(98.0
)
(b)
The decrease in restricted cash reflects the release of cash
that was restricted under various orders of the Bankruptcy
Court, partially offset by the establishment of a professional
fee escrow account of $68 million.
(c)
This adjustment records $16 million of estimated debt
issuance costs capitalized in connection with the exit financing
facility.
(d)
This adjustment gives effect to the repayment of borrowings
under the DIP facility. Additionally, this unaudited pro forma
financial information assumes that the $200 million ABL
under the exit facility is undrawn at emergence.
(e)
This adjustment reflects the establishment of a liability for
the payment of $188 million of allowed general unsecured
and other claims in accordance with the Plan of Reorganization.
(f)
This adjustment reflects the $500 million term loan under
the exit facility, net of $10 million original issuance
discount and $12 million of fees paid to the exit facility
lenders.
(g)
This adjustment represents the reinstatement of approximately
$6 million of OPEB obligations.
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(h)
This adjustment reflects the settlement of liabilities subject
to compromise (LSC) in accordance with the Plan of
Reorganization, as shown below:
LSC
Settlement per
Gain on
June 30, 2010
Fifth Amended Plan
Settlement of LSC
$
2,490.0
$
1,758.0
$
732.0
329.0
36.0
293.0
153.0
130.0
23.0
122.0
96.0
26.0
$
3,094.0
$
2,020.0
$
1,074.0
(1,770.0
)
(120.0
)
(130.0
)
(1,074.0
)
$
(i)
The cancellation of old Visteon common stock in accordance with
the Plan of Reorganization and elimination of corresponding
shareholders deficit balances, are shown below:
Predecessor
Shareholders
Successor
Deficit
Shareholders
June 30,
Reorganization
Fresh Start
Equity
2010
Adjustments
Adjustments
June 30, 2010
$
131.0
$
(131.0
)
$
$
1.0
1.0
127.0
(127.0
)
68.0
68.0
3,408.0
(3,408.0
)
1,322.0
10.0
1,332.0
(4,544.0
)
4,675.0
(131.0
)
(215.0
)
215.0
(4.0
)
(91.0
)
(95.0
)
$
(1,097.0
)
$
2,309.0
$
94.0
$
1,306.0
(j)
Fresh start adjustments reflect the adoption of fresh-start
accounting in accordance with GAAP and serves to record assets
and liabilities of reorganized Visteon at their respective fair
values, as follows:
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(k)
Deferred tax impacts associated with the fresh start adjustments
result from changes in the book values of tangible and
intangible assets while the tax basis in such assets remains
unchanged. The Company anticipates that a full valuation
allowance will be maintained in the U.S., accordingly this
adjustment relates to the portion of the fresh start adjustments
applicable to certain
non-U.S. jurisdictions
where the Company is subject to and pays income taxes. Deferred
tax adjustments include the following:
$
22.0
6.0
120.0
$
104.0
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Chairman, President and Chief Executive Officer
Director
Director
Director
Director
Director
Director
Director
Director
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each of our directors;
each of our named executive officers;
each holder of more than 5% of our outstanding shares of common
stock; and
all of our directors and executive officers as a group.
Amount and Nature of Shares
Beneficially Owned(1)
Percent of All
Number
Common Stock
4,090,974
8.1
%
4,349,732
8.6
%
3,800,142
7.6
%
366,667
*
*
*
*
*
*
*
*
*
150,000
*
40,000
*
75,000
*
75,000
*
*
70,000
*
60,000
*
40,000
*
30,000
*
906,667
1.8
%
21
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*
Less than 1%.
(1)
Shares shown in the table above include shares held in the
beneficial owners name or jointly with others, or in the
name of a bank, nominee or trustee for the beneficial
owners account.
(2)
Consists of 18,019 shares beneficially owned by Monarch
Capital Master Partners II-A LP, including 17,127 shares
underlying warrants to purchase shares of our common stock;
51,665 shares beneficially owned by Monarch Capital Master
Partners LP, including 49,682 shares underlying warrants to
purchase shares of our common stock; 8,773 shares
beneficially owned by Monarch Cayman Fund Limited,
including 7,154 shares underlying warrants to purchase
shares of our common stock; 87,116 shares beneficially
owned by Monarch Debt Recovery Master Fund Ltd, including
62,941 shares underlying warrants to purchase shares of our
common stock; 4,113,510 shares beneficially owned by
Monarch Master Funding Ltd; 62,601 shares beneficially
owned by Monarch Opportunities Master Fund Ltd, including
34,026 shares underlying warrants to purchase shares of our
common stock; and 8,048 shares beneficially owned by
Oakford MF Limited, including 5,933 shares underlying
warrants to purchase shares of our common stock.
(3)
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as of
October 20, 2010, but eligible to be voted.
(4)
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as of
October 20, 2010, but eligible to be voted.
(5)
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as
of October 20, 2010, but eligible to be voted.
(6)
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as
of October 20, 2010, but eligible to be voted.
(7)
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as of
October 20, 2010, but eligible to be voted.
(8)
As of October 20, 2010, Mr. Pallash holds 75,000
restricted stock units granted pursuant to the Visteon
Corporation 2010 Incentive Plan, which may be settled in cash or
shares of common stock at the election of the Company upon
vesting.
(9)
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as of
October 20, 2010, but eligible to be voted.
(10)
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as of
October 20, 2010, but eligible to be voted.
(11)
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as of
October 20, 2010, but eligible to be voted.
(12)
Shares of restricted stock issued pursuant to the Visteon
Corporation 2010 Incentive Plan that are not yet vested as of
October 20, 2010, but eligible to be voted.
(13)
Includes shares of restricted stock issued pursuant the Visteon
Corporation 2010 Incentive Plan that are not yet vested as of
October 20, 2010, but eligible to be voted, and the shares
of our common stock beneficially owned described in footnotes
(2), (3), (4), (5), (6), (8), (9), (10) and (11).
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Number of
Shares of
Maximum
Shares of Common Stock
Common Stock
Number of Shares
Owned After Offering(2)
Owned Prior to
of Common Stock
Percent of All
Offering(1)
Offered
Number
Common Stock
1,841,758
1,841,758
*
51,399
51,399
*
82,456
82,456
*
566,412
566,412
*
10,000
10,000
*
49,384
46,031
3,353
*
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Number of
Shares of
Maximum
Shares of Common Stock
Common Stock
Number of Shares
Owned After Offering(2)
Owned Prior to
of Common Stock
Percent of All
Offering(1)
Offered
Number
Common Stock
12,876
12,002
874
*
20,389
19,004
1,385
*
22,534
21,004
1,530
*
24,081
24,081
*
30,000
30,000
*
26,442
26,442
*
7,932
7,932
*
5,288
5,288
*
9,255
9,255
*
599,809
599,809
*
65,000
65,000
*
55,200
55,200
*
260,085
260,085
*
63,171
58,724
4,447
*
1,342,852
1,342,852
*
195,947
195,947
*
295,792
295,792
*
446,118
446,118
*
261,343
261,343
*
397,191
397,191
*
333,458
333,458
*
10,500
10,500
*
178,085
178,085
*
1,143,551
1,143,551
*
811,893
811,893
*
852,494
852,494
*
34,940
34,940
*
116,211
116,211
*
270,529
270,529
*
40,593
40,593
*
1,974,958
1,974,958
*
Table of Contents
Number of
Shares of
Maximum
Shares of Common Stock
Common Stock
Number of Shares
Owned After Offering(2)
Owned Prior to
of Common Stock
Percent of All
Offering(1)
Offered
Number
Common Stock
405,948
405,948
*
1,494,744
1,494,744
*
29,720
29,720
*
1,688,354
1,688,354
*
457,510
457,510
*
75,000
75,000
*
89,357
89,357
*
46,000
46,000
*
144,245
120,000
24,245
*
24,981
24,981
*
67,249
67,249
*
27,000
27,000
*
120,000
120,000
*
209,306
195,092
14,214
*
73,987
69,000
4,987
*
1,515,685
1,515,685
*
4,080
4,080
*
748,910
748,910
*
646,712
646,712
*
19,382
19,382
*
5,900
5,900
*
10,600
10,600
*
36,462
33,447
3,015
*
5,561
5,561
*
130,347
130,347
*
187,515
187,515
*
13,300
13,300
*
150,000
150,000
*
226,008
165,192
60,816
*
Table of Contents
Number of
Shares of
Maximum
Shares of Common Stock
Common Stock
Number of Shares
Owned After Offering(2)
Owned Prior to
of Common Stock
Percent of All
Offering(1)
Offered
Number
Common Stock
714,355
714,355
*
302,668
221,223
81,445
*
21,415
21,415
*
22,900
22,900
*
47,000
47,000
*
57,650
57,650
*
29,530
29,530
*
130,860
130,860
*
36,960
36,960
*
465,562
465,562
*
15,034
14,014
1,020
*
9,896
9,896
*
32,870
32,870
*
105,000
105,000
*
85,295
85,295
*
86,941
81,038
5,903
*
436,492
436,492
*
85,000
85,000
*
588,612
588,612
*
1,689,893
1,689,893
*
127,715
116,533
11,182
*
263,081
251,442
11,639
*
18,019
18,019
*
51,665
51,665
*
8,773
8,773
*
87,116
87,116
*
4,113,510
4,113,510
*
62,601
62,601
*
12,876
12,002
874
*
550,755
480,000
70,755
*
1,187,007
1,185,245
1,762
*
68,842
68,842
*
12,876
12,002
874
*
13,960
13,013
947
*
Table of Contents
Number of
Shares of
Maximum
Shares of Common Stock
Common Stock
Number of Shares
Owned After Offering(2)
Owned Prior to
of Common Stock
Percent of All
Offering(1)
Offered
Number
Common Stock
176,265
164,294
11,971
*
880
880
*
156,716
156,716
*
8,048
8,048
*
150,863
150,863
*
520,301
520,301
*
264,435
264,435
*
160,030
160,030
*
70,280
70,280
*
2,133
2,133
*
51,930
51,930
*
95,797
74,150
21,647
*
3,821
3,821
*
81,400
81,400
*
27,092
25,628
1,464
*
246,766
233,431
13,335
*
231,043
231,043
*
5,365
5,001
364
*
200,507
200,507
*
30,000
20,000
10,000
*
462,322
462,322
*
851,884
851,884
*
2,047,278
2,047,278
*
1,807,759
1,579,546
228,213
*
290,257
290,257
*
518,522
518,522
*
242,396
242,396
*
124,728
124,728
*
2,369,277
2,369,277
*
19,315
18,003
1,312
*
22,867
22,867
*
125,451
106,315
19,136
*
263,124
224,586
38,538
*
15,000
15,000
*
22,082
22,082
*
Table of Contents
Number of
Shares of
Maximum
Shares of Common Stock
Common Stock
Number of Shares
Owned After Offering(2)
Owned Prior to
of Common Stock
Percent of All
Offering(1)
Offered
Number
Common Stock
3,345
3,345
*
28,946
26,566
2,380
*
107,306
100,019
7,287
*
59,572
59,572
*
45,716
45,351
365
*
1,144,429
1,144,429
*
203,475
203,475
*
339,668
325,093
14,575
*
50,049
45,003
5,046
*
14,882
14,882
*
121,656
121,656
*
23,223
23,223
*
20,000
20,000
*
183,982
183,982
*
144,325
144,325
*
37,100
37,100
*
*
Less than 1%.
(1)
Shares shown in the table above
include shares held in the beneficial owners name or
jointly with others, or in the name of a bank, nominee or
trustee for the beneficial owners account.
(2)
Represents the amount of common
stock that will be held by the selling stockholders after
completion of this offering based on the assumptions that
(a) all shares of common stock registered for sale by the
registration statement of which this prospectus forms a part
will be sold and (b) that no other shares of common stock
are acquired or sold by the selling stockholders prior to
completion of this offering. However, the selling stockholders
may sell all, some or none of the shares of common stock offered
pursuant to this prospectus and may sell some or all of their
shares of common stock pursuant to an exemption from the
registration provisions of the Securities Act.
(3)
Alden Global Capital Limited
(Alden) is the management company for Alden Global
Distressed Opportunities Master Fund, LP. (the Alden
Master Fund) and NewFinance Alden SPV
(NewFinance and, together with the Alden Master
Fund, the Alden Clients). AGDOF Master GP, Ltd.
(Alden Master GP) is the general partner of the
Master Fund. Alden Global Capital, a division of Smith
Management, LLC (Alden NY) has been engaged to
provide certain services to Alden and the Alden Clients which
includes, among other things, investment research,
administrative, managerial and other services. Alden, Alden
Master GP
and/or
Alden
NY may be deemed to beneficially own the securities held by the
Alden Clients through their ability to either vote or direct the
vote of the securities or dispose or direct the disposition of
the securities, either through contract, understanding or
otherwise. Alden, Alden Master GP and Alden NY each disclaim
beneficial ownership of such securities, if any, except to the
extent of their pecuniary interests therein, as applicable.
(4)
Allen Investment Management LLC is
the investment manager for Allen Global Partners LP (formerly
Allen Arbitrage LP) and Allen Global Partners Offshore (formerly
Allen Arbitrage Offshore and, together with Allen Global
Partners LP, the Allen Funds). Allen Global Partners
LLC, a wholly-owned subsidiary of Allen Operations LLC is the
general partner of Allen Global Partners LP. Allen Global
Partners Offshore is a Class of the Allen Series Trust, a
Cayman Islands unit trust established by a Declaration of Trust
by Caledonian Trust (Cayman) Limited. Allen Investment
Management LLC, Allen Global Partners LP. and Allen Global
Partners Offshore may be deemed to beneficially own the
securities held by the Allen Funds. Allen Investment Management
LLC, Allen Global Partners LLC and Allen Operations LLC each
disclaim beneficial ownership of such securities, if any, except
to the extent of their pecuniary interests therein, as
applicable.
(5)
Includes 91,285 shares
underlying warrants to purchase shares of our common stock.
Armory Advisors LLC is the investment manager of Armory Master
Fund, Ltd. and may be deemed to be the beneficial owner of the
securities held by Armory Master Fund, Ltd. Jay Burnham acts as
the Manager of Armory Advisors LLC.
(6)
The Artio Global Credit
Opportunities Fund is a series of Artio Alpha Investment Funds,
LLC. The investment manager of the Artio Global Credit
Opportunities Fund is Artio Global Management LLC (Artio
Global, the Investment Manager or the
Managing Member). Artio is registered as an
investment adviser under the Investment Advisers Act of 1940, as
amended. Artio Alpha Investment Funds, LLC is
Table of Contents
a Delaware multi-series limited
liability company. The Artio Global Credit Opportunities Fund
currently is the sole existing series of Artio Alpha Investment
Funds, LLC.
(7)
Stephen Kotsen is the Portfolio
Manager at Nomura Corporate Research and Asset Management Inc.
(NCRAM), which serves as the investment advisor for
Barclays Multi-Manager Fund PLC, Battery Park High Yield
Long Short Fund Ltd., Battery Park High Yield Opportunity
Master Fund Ltd., Battery Park High Yield Opportunity Strategic
Fund, Ltd., California Public Employees Retirement System, GMAM
Investment Funds Trust, L-3 Communications Corporation Master
Trust, Louisiana State Employees Retirement System,
Montgomery County Employees Retirement System, Nomura
Funds Ireland US High Yield Bond Fund, Nomura US
Attractive Yield Corporate Bond Fund Mother Fund, Nomura
Waterstone Market Neutral Fund, Sagittarius Fund, Stichting
Pensioenfonds Hoogovens, The GM Canada Domestic Trust and The
Regents of the University of California and has the power to
vote or dispose of the shares of common stock held by such
funds. Consequently, NCRAM and Mr. Kotsen may be deemed to
be the beneficial owners of such shares; however, NCRAM and
Mr. Kotsen disclaim any beneficial ownership. Certain
affiliates of NCRAM are members of FINRA.
(8)
Carlson Capital, LP. (Carlson
Capital) is the investment adviser to Black Diamond
Offshore Ltd. (Black Diamond) and Double Black
Diamond Offshore Ltd. (together with Black Diamond, the
Carlson Funds). Asgard Investment Corp. II
(Asgard II) is the general partner of Carlson
Capital, Asgard Investment Corp. (Asgard) is the
sole stockholder of Asgard II, and Clint D. Carlson is the
President of Carlson Capital, Asgard II and Asgard. Carlson
Capital, Asgard II, Asgard and Mr. Carlson have the power
to vote and direct the disposition of securities held by the
Carlson Funds.
(9)
Wellspring Management L.L.C. is the
investment manager for Wellspring Capital L.P. and Blackwell
Partners, L.L.C. The managing members of Wellspring Management
L.L.C. are George M. White and Robert Chad Gilliland. Wellspring
Management L.L.C. and each of the Wellspring Managers may be
deemed to beneficially own the securities held by the Wellspring
Funds. Wellspring Management L.L.C. and each of the Wellspring
Managers each disclaim beneficial ownership of such securities
except to the extent of their pecuniary interests therein.
(10)
Securities are held by Blue
Mountain Credit Alternatives Master Fund, L.P.
(BMCA), BlueMountain Timberline Ltd.
(BMT), BlueMountain Long/Short Credit Master Fund,
L.P. (LSCF), and BlueMountain Equity Alternatives
Master Fund, L.P. (BMEA) (BMCA, BMT, LSCF, and BMEA,
collectively, the BlueMountain Funds). BlueMountain
CA Master Fund GP, Ltd. (BMCAGP) is the general
partner of BMCA; BlueMountain Long/Short Credit GP, LLC
(BMLSGP) is the general partner of BMLS; and
BlueMountain Equity GP, LLC (BMEAGP) is the general
partner of BMEA. Blue Mountain Credit GP, LLC
(BMCGP) is the sole owner of BMCAGP. BlueMountain GP
Holdings, LLC (BMGPH) owns 100% of the units of
BMCGP, BMLSGP, and BMEAGP. BlueMountain Capital Management, LLC
(BMCM) is the investment manager of each of the
BlueMountain Funds. Andrew Feldstein is the managing member of
both BMCM and BMGPH. BMCM, BMCAGP, BMLSGP, BMEAGP, BMCGP, BMGPH,
and Andrew Feldstein may be deemed to own beneficially the
securities held by the BlueMountain Funds. BMCM, BMCAGP, BMLSGP,
BMEAGP, BMCGP, BMGPH, and Andrew Feldstein each disclaim
beneficial ownership of such securities except to the extent of
their pecuniary interests therein.
(11)
Includes 34,648 shares
underlying warrants to purchase shares of our common stock.
Brigade Capital Management, LLC (Brigade Capital) is
the investment manager for Brigade Leveraged Capital Structures
Fund Ltd. (Brigade Fund). The managing member
of Brigade Capital is Donald E. Morgan, III. Brigade
Capital and Donald E. Morgan, III may be deemed to
beneficially own the securities held by Brigade Fund. Brigade
Capital and Donald E. Morgan, III each disclaim beneficial
ownership of such securities except to the extent of their
pecuniary interests therein.
(12)
Susquehanna Advisors Group, Inc.,
the authorized agent of Capital Ventures International, has
discretionary authority to vote and dispose of the shares held
by Capital Ventures International and may be deemed to be the
beneficial owner of these shares. Michael Ferry has the power to
direct investments and/or power to vote the shares through
Susquehanna Advisors Group, Inc., and may be deemed to
beneficially own the shares held by this entity. Michael Ferry
expressly disclaims ownership of such shares.
(13)
Mariner Investment Group, LLC
(MIG) serves as investment manager to Mariner LDC
(LDC), Caspian Capital Partners, L.P.
(Caspian) and Caspian Select Credit Master Fund,
Ltd. (Select and, together with LDC and Caspian, the
Mariner Funds). Mariner LDCs shares include
61,503 shares underlying warrants to purchase shares of our
common stock. Caspians shares include 33,524 shares
underlying warrants to purchase shares of our common stock.
Selects shares include 50,606 shares underlying
warrants to purchase shares of our common stock. MIG is wholly
owned by MIG Holdings, LLC (MIG Holdings), which is
owned by Mariner Partners, Inc. (MPI), of which
William Michaelcheck (WM) is majority holder. MIG,
MIG Holdings, MPI and WM may be deemed to beneficially own the
securities held by the Mariner Funds. MIG, MIG Holdings, MPI and
WM each disclaim beneficial ownership of such securities except
to the extent of their pecuniary interests therein.
(14)
Centerbridge Credit Partners
Offshore General Partner, L.L.C., a Delaware limited liability
company, is the general partner of Centerbridge Credit Partners
Master, L.P., a Cayman Islands limited partnership.
Mark T. Gallogly and Jeffery. H. Aronson, managing
members of Centerbridge Credit Partners Offshore General
Partner, L.L.C., share the power to vote securities beneficially
owned by the Centerbridge Credit Partners Master, L.P. Each of
Mr. Gallogly and Mr. Aronson disclaims beneficial
ownership of all of the securities held by the Centerbridge
Credit Partners Master, L.P.
(15)
Centerbridge Credit Partners
General Partner, L.L.C., a Delaware limited liability company,
is the general partner of Centerbridge Credit Partners, L.P., a
Delaware limited partnership. Mark T. Gallogly and
Jeffery H. Aronson, managing members of Centerbridge
Credit Partners General Partner, L.L.C., share the power to vote
securities beneficially owned by the Centerbridge Credit
Partners, L.P. Each of Mr. Gallogly and Mr. Aronson
disclaims beneficial ownership of all of the securities held by
Centerbridge Credit Partners, L.P.
(16)
Centerbridge Special Credit
Partners General Partner, L.L.C., a Delaware limited liability
company, is the general partner of Centerbridge Special Credit
Partners, L.P., a Delaware limited partnership.
Mark T. Gallogly and Jeffery H. Aronson, managing
members of Centerbridge Special Credit Partners General Partner,
L.L.C., share the power to vote securities beneficially owned by
Centerbridge
29
Table of Contents
Special Credit Partners, L.P. Each
of Mr. Gallogly and Mr. Aronson disclaims beneficial
ownership of all of the securities held by Centerbridge Special
Credit Partners, L.P.
(17)
Consists of 333,458 shares of
common stock held by Citadel Securities LLC. Citadel Securities
LLC is a registered-broker dealer and, accordingly, may be
deemed to be an underwriter. The shares of common stock held by
Citadel Securities LLC were acquired in the ordinary course of
its investment business and not for the purpose of resale or
distribution. Citadel Securities LLC has not participated in the
distribution of the shares on behalf of the issuer.
(18)
Concerto Asset Management, LLC is
the investment manager for Concerto Credit Opportunity Master
Fund I, LP.
(19)
CQS Directional Opportunities
Master Fund Limited, CQS Convertible and Quantitative
Strategies Master Fund Limited and Kivu Investment
Fund Limited are referred to as the CQS Funds.
CQS Cayman LP (the CQS Investment Manager) is the
investment manager of the CQS Funds. CQS (US) LLC and CQS (UK)
LLP (the Delegated Managers) have been delegated
discretionary portfolio management and advisory functions for
the CQS Funds. The portfolio manager is Mark Unferth (the
Portfolio Manager). The Portfolio Manager may, under
Rule 13d-3 of the Exchange Act, be deemed to beneficially own
the securities held by the CQS Funds. The CQS Investment
Manager, the Delegated Managers and the Portfolio Manager
disclaim beneficial ownership of such securities except to the
extent of their respective pecuniary interests therein.
(20)
Cyrus Capital Partners, L.P.
(CCP) is the investment manager for Cyrus
Opportunities Master Fund II, Ltd. (COMFII),
Cyrus Select Opportunities Master Fund, Ltd.
(CSOMF), Cyrus Europe Master Fund, Ltd.
(CEMF), CRS Fund, Ltd. (CRS) and
Crescent 1, L.P. (Crescent and, together with
COMFII, CSOMF, CEMF and CRS, collectively, the Cyrus
Funds). COMFIIs shares include 260,447 shares
underlying warrants to purchase shares of our common stock.
CSOMFs shares include 54,257 shares underlying
warrants to purchase shares of our common stock. CEMFs
shares include 5,420 shares underlying warrants to purchase
shares of our common stock. CRSs shares include
113,946 shares underlying warrants to purchase shares of
our common stock. Crescents shares include
108,514 shares underlying warrants to purchase shares of
our common stock. Cyrus Capital Partners GP, L.L.C.
(CCPGP) is the general partner of CCP. Stephen C.
Freidheim (SCF) is the managing member of CCPGP and
the Chief Investment Officer of CCP. CCP, CCPGP and SCF may be
deemed to beneficially own the securities held by the Cyrus
Funds. CCP, CCPGP and SCF each disclaim beneficial ownership of
such securities except to the extent of their pecuniary
interests therein.
(21)
Cumberland GP LLC, Cumberland
Benchmarked GP LLC and LongView B GP LLC (The GP LLC
Entities) are the general partners of Cumberland Partners,
Cumberland Benchmarked Partners, L.P. and LongView Partners B,
L.P., respectively. Each fund is the beneficial owner of our
common stock. Cumberland Associates is the investment manager of
Cumber International S.A., the beneficial owner of VCS.
Gary G. Tynos, Bruce G. Wilcox and Andrew M. Wallach
are the managing members of each GP LLC Entity and Cumberland
Associates LLC.
(22)
Includes 139,925 shares
underlying warrants to purchase shares of our common stock.
Includes shares owned by M.H. Davidson & Co.
(Co), Davidson Kempner Institutional Partners, L.P.
(DKIP), Davidson Kempner Partners (DKP),
Davidson Kempner International, Ltd. (DKIL),
Davidson Kempner Distressed Opportunities Fund LP
(DKDOF) and Davidson Kempner Distressed
Opportunities International Ltd. (DKDOI and, together with
Co, DKIP, DKP, DKIL and DKDOF, the DK Funds).
Davidson Kempner Capital Management LLC, acting through its
affiliates pursuant to various advisory agreements
(DKCM), is the ultimate investment manager (directly
and indirectly) for each of the DK Funds. DKCM has overall
responsibility for investment decisions made on behalf of the DK
Funds. Thomas L. Kempner, Jr. serves as the Executive Managing
Member of each investment manager entity. The other partners of
the investment managers are Stephen M. Dowicz, Scott E.
Davidson, Timothy I. Levart, Robert J. Brivio, Jr., Eric P.
Epstein, Anthony A. Yoseloff, Avram Z. Friedman, Conor Bastable
and Michael Herzog. Each such person disclaims ownership of any
securities of the DK Funds except to the extent of their
pecuniary interests therein.
(23)
Para Advisors LLC (Para
Advisors) is the investment manager for Para Partners,
L.P. (Para Partners) and the trading advisor for
dbX-Risk Arbitrage Fund 4 Fund (the dbX-Risk
Arbitrage Fund and together with Para Partners, the
Para Funds). Mr. Ned Sadaka is the manager of
Para Advisors and also serves as the managing member of the
general partner of Para Partners. Para Advisors and
Mr. Sadaka may be deemed to beneficially own the securities
held by the Para Funds. Para Advisors and Mr. Sadaka each
disclaim beneficial ownership of such securities except to the
extent of their pecuniary interests therein.
(24)
Consists of 1,688,354 shares
of common stock held by Deutsche Bank Securities Inc. including
114,106 shares underlying warrants to purchase shares of
our common stock. Deutsche Bank Securities Inc. is a
registered-broker dealer and, accordingly, may be deemed to be
an underwriter. The shares of common stock held by Deutsche Bank
Securities Inc. were acquired in the ordinary course of its
investment business and not for the purpose of resale or
distribution. Deutsche Bank Securities Inc. has not participated
in the distribution of the shares on behalf of the issuer.
Deutsche Bank AG, of which Deutsche Bank Securities Inc. is an
indirect, wholly-owned subsidiary, is a widely held company.
(25)
Dreman Value Management, LLC is the
sub-advised
investment manager for DWS Dreman Value Income Edge Fund. DWS
Investments, a subsidiary of Deutsche Bank, is the advisor and
responsible for voting on behalf of the fund. Dreman Value
Management and DWS Investments may be deemed to beneficially own
the securities held by DWS Dreman Value Income Edge Fund. Dreman
Value Management and DWS Investments each disclaim beneficial
ownership of such securities except to the extent of their
pecuniary interests therein.
(26)
Consists of 59,572 shares held
by The Liverpool Limited Partnership (Liverpool)
including 24,615 shares underlying warrants to purchase
shares of our common stock and 89,357 shares held by
Elliott International, L.P. (Elliott LP), including
36,922 shares underlying warrants to purchase shares of our
common stock. Liverpool is a wholly-owned subsidiary of Elliott
Associates, L.P., a Delaware limited partnership (Elliott
Associates). Hambledon, Inc., a Cayman Islands corporation
controlled by Paul E. Singer (Mr. Singer) is
the sole general partner of Elliott LP. In addition, Elliott
International Capital Advisors Inc., the investment manager of
Elliott LP, which is controlled by Mr. Singer, has shared
power with Elliott LP to vote and dispose of the shares owned by
Elliott LP.
30
Table of Contents
Mr. Singer, Elliott Capital
Advisors, L.P., a Delaware limited partnership which is
controlled by Mr. Singer, and Elliott Special GP, LLC, a
Delaware limited liability company which is controlled by
Mr. Singer, are the general partners of Elliott Associates.
(27)
Evolution Capital Management LLC
(ECMLLC) is the investment manager for Evolution
Master Fund Ltd. SPC, Segregated Portfolio M (M
Fund). M Fund is the beneficial owner of the registrable
securities. ECMLLC disclaims beneficial ownership of such
securities except to the extent of its pecuniary interests
therein.
(28)
Oak Hill Advisors, L.P.
(OHA) is the investment manager for Future
Fund Board of Guardians, Lerner Enterprises, LLC, Oak Hill
Credit Opportunities Financing, Ltd., OHA Strategic Credit
Master Fund, L.P., OHA Strategic Credit Master Fund II,
L.P. and OHSF II Financing Ltd. (the Oak Hill
Funds). Future Fund Board of Guardians shares
include 6,275 shares underlying warrants to purchase shares
of our common stock. Lerner Enterprises, LLCs shares
include 571 shares underlying warrants to purchase shares
of our common stock. Oak Hill Credit Opportunities Financing,
Ltd.s shares include 12,894 shares underlying
warrants to purchase shares of our common stock. OHA Strategic
Credit Master Fund, L.P.s shares include
39,024 shares underlying warrants to purchase shares of our
common stock. OHA Strategic Credit Master Fund II,
L.P.s shares include 11,182 shares underlying
warrants to purchase shares of our common stock. OHSF II
Financing Ltd.s shares include 21,337 shares
underlying warrants to purchase shares of our common stock. Oak
Hill Advisors GenPar, L.P. (GenPar) is the general
partner of OHA. GenPar is controlled by Glenn R. August, William
H. Bohnsack, Jr., Scott D. Krase, Robert B. Okun, Alan Schrager
and Carl Wernicke. OHA, GenPar and Messrs. August,
Bohnsack, Krase, Okun, Schrager and Wernicke may be deemed to
beneficially own the securities held by the Oak Hill Funds. OHA,
GenPar and Messrs. August, Bohnsack, Krase, Okun, Schrager
and Wernicke each disclaim beneficial ownership of such
securities except to the extent of their pecuniary interests
therein.
(29)
Includes 3,029 shares
underlying warrants to purchase shares of our common stock.
Grantham, Mayo, Van Otterloo & Co. LLC
(GMO) is the investment manager for GMO Mean
Reversion Fund (Onshore), a series of GMO Master Portfolios
(Onshore), L.P. (the Reversion Fund). GMO Investment
Partners LLC (GMOIP) is the general partner of GMO
Master Portfolios (Onshore), L.P., and GMO serves as managing
member of GMOIP. GMO and GMOIP are not the selling security
holder and each of GMO and GMOIP disclaim beneficial ownership
of such securities held by the Reversion Fund.
(30)
Includes 415,198 shares
underlying warrants to purchase shares of our common stock.
Goldman, Sachs & Co. (Goldman Sachs), a
New York limited partnership, is a member of the New York Stock
Exchange and other national exchanges. Goldman Sachs is a direct
and indirect wholly-owned subsidiary of The Goldman Sachs Group,
Inc. (GS Group). GS Group, a Delaware corporation,
is a bank and financial holding company that (directly or
indirectly through subsidiaries or affiliated companies or both)
is a leading global investment banking, securities and
investment management firm. Goldman Sachs is a registered-broker
dealer and, accordingly, may be deemed to be an underwriter. The
shares of common stock held by Goldman Sachs were acquired in
the ordinary course of its investment business and not for the
purpose of resale or distribution. Goldman Sachs has not
participated in the distribution of the shares on behalf of the
issuer. GS Group may be deemed to beneficially own the
securities held by Goldman Sachs. GS Group disclaims beneficial
ownership of such securities except to the extent of its
pecuniary interest therein.
(31)
Great Oaks Capital Management, LLC,
is the investment manager for Great Oaks Strategic Investment
Partners, LP. Andrew K. Boszhardt, Jr. is the general partner
and managing partner of Great Oaks Strategic Investment
Partners, L.P.
(32)
GSO Capital Partners LP is the
investment manager of GSO Special Situations Fund LP and
GSO Special Situations Overseas Master Fund Ltd. GSO
Advisor Holdings L.L.C. is the general partner of GSO Capital
Partners LP. Blackstone Holdings I L.P. is the sole member of
GSO Advisor Holdings L.L.C. Blackstone Holdings I/II GP Inc. is
the general partner of Blackstone Holdings I L.P. The Blackstone
Group L.P. is the sole shareholder of Blackstone Holdings I/II
GP Inc. Blackstone Group Management L.L.C. is the general
partner of The Blackstone Group L.P. Stephen A. Schwarzman is
the founding member of Blackstone Group Management L.L.C. In
addition, each of Bennett J. Goodman, J. Albert Smith III
and Douglas I. Ostrover serves as an executive of GSO Capital
Partners LP. Each of the above, other than GSO Special
Situations Fund LP and GSO Special Situations Overseas
Master Fund Ltd., disclaims beneficial ownership of the
shares held by each of GSO Special Situations Fund LP and
GSO Special Situations Overseas Master Fund Ltd., except to the
extent of such partys pecuniary interest therein. Each
selling stockholder is an affiliate of a
broker-dealer and has certified that it bought the securities in
the ordinary course of business, and at the time of the purchase
of the securities to be resold, it had no agreements or
understandings, directly or indirectly, with any person to
distribute the securities.
(33)
Mason Capital Management LLC is the
investment manager for Mason Capital L.P., Mason Capital Master
Fund, L.P. and Guggenheim Portfolio Company X, LLC
(collectively, the Mason Funds). The managing
members of Mason Capital Management LLC are Kenneth Garschina
and Michael Martino (collectively the Mason Capital
Managers). The Mason Funds and each of the Mason Capital
Managers may be deemed to beneficially own the securities held
by the Mason Funds. The Mason Funds and each of the Mason
Capital Managers each disclaim beneficial ownership of such
securities except to the extent of their pecuniary interests
therein.
(34)
HFR RVA Advent Global Opportunity
Master Trusts shares include 351 shares underlying
warrants to purchase shares of our common stock. The Advent
Global Opportunity Master Funds shares include
270 shares underlying warrants to purchase shares of our
common stock. Advent Capital Management, LLC is the investment
manager for The Advent Global Opportunity Master Fund. Advent
Capital Management, LLC disclaims beneficial ownership of such
securities except to the extent of their pecuniary interests
therein.
(35)
Millennium International Management
LP, a Delaware limited partnership (Millennium
International Management), is the investment manager to
ICS Opportunities, Ltd., an exempted limited company organized
under the laws of the Cayman Islands (ICS
Opportunities), and may be deemed to have shared voting
control and investment discretion over securities owned by ICS
Opportunities. Millennium International Management GP LLC, a
Delaware limited liability company (Millennium
International Management GP), is the general partner of
Millennium International Management and may also be deemed to
have shared voting control and investment discretion over
securities owned by ICS Opportunities. Millennium Management
LLC, a Delaware limited liability company (Millennium
Management), is the general partner of the 100%
shareholder of ICS Opportunities and may be deemed to have
shared voting control and investment discretion over securities
owned by ICS Opportunities. Israel A. Englander, a United States
citizen, is the managing member of
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Millennium International Management
GP and of Millennium Management and consequently may also be
deemed to have shared voting control and investment discretion
over securities owned by ICS Opportunities.
(36)
Directed Services LLC
(DSL) and Janus Capital Management LLC
(JCM) act as the investment adviser and
sub-adviser,
respectively to the ING Janus Contrarian Portfolio (the
ING Portfolio) and each have discretionary
investment authority over the ING Portfolio, respectively,
including the power to dispose, or to direct the disposition of
securities. The managing member of JCM is Janus Capital Group
Inc. (JCG). JCM, JCG and DSL may be deemed to
beneficially own the securities held by the ING Portfolio. JCM,
JCG, and DSL each disclaim beneficial ownership of such
securities except to the extent of their pecuniary interests
therein.
(37)
Jabre Capital Partners S.A. is the
investment manager of: JABCAP Global Balanced Master Fund
Limited, JABCAP (LUX) Global Balanced and Lexicon Fund.
(38)
Janus US High Yield Funds
shares include 48,780 shares underlying warrants to
purchase shares of our common stock. Janus High-Yield
Funds shares include 65,326 shares underlying
warrants to purchase shares of our common stock. Janus Capital
Management LLC (JCM) acts as the investment adviser
to the Janus Investment Fund and as
sub-adviser
to Janus Capital Funds P.L.C. and has discretionary investment
authority over the Janus High-Yield Fund and Janus US High Yield
Fund (collectively, the Janus High Yield Funds),
respectively, including the power to dispose, or to direct the
disposition of securities. The managing member of JCM is JCG.
JCM and JCG may be deemed to beneficially own the securities
held by the Janus High Yield Funds. JCM and JCG each disclaim
beneficial ownership of such securities except to the extent of
their pecuniary interests therein.
(39)
JCM acts as the investment adviser
to the Janus Investment Fund and has discretionary investment
authority over the Janus Long/Short Fund and Janus Contrarian
Fund (collectively, the Janus Funds), including the
power to dispose, or to direct the disposition of securities.
The managing member of JCM is JCG. JCM and JCG may be deemed to
beneficially own the securities held by the Janus Funds. JCM and
JCG each disclaim beneficial ownership of such securities except
to the extent of their pecuniary interests therein.
(40)
Duquesne Capital Management, LLC
may be deemed to beneficially own such securities by virtue of
its position as investment manager of Windmill Master
Fund LP and Juggernaut Fund, L.P.
Stanley F. Druckenmiller may be deemed to beneficially
own such securities by virtue of his position as managing member
of Duquesne Capital and as managing member of Duquesne Holdings,
LLC (General Partner). Duquesne Capital, Duquesne Holdings, and
Mr. Druckenmiller each disclaim beneficial ownership of
such securities except to the extent of their pecuniary
interests therein.
(41)
Karsch Capital Management, LP is an
SEC registered investment advisor (KCM) and acts as
the investment manager for Karsch Capital Ltd., Karsch Capital
II, Ltd and KCM Plus, Ltd. Karsch Associates, LLC, the general
partner of Karsch Capital II, LP, has delegated investment
management functions to KCM.
(42)
Pine River Capital Management L.P.
(PRCM LP) is the investment manager of LMA SPC for
and on behalf of the MAP89 Segregated Portfolio and Pines Edge
Value Investors Ltd. (the Pine River Funds). Pine
River Capital Management LLC (PRCM LLC) is the
general partner of PRCM LP. The sole managing member of PRCM LLC
is Brian Taylor. PRCM LP, PRCM LLC and Brian Taylor may be
deemed to beneficially own the securities held by the Pine River
Funds. PRCM LP, PRCM LLC and Brian Taylor each disclaim
beneficial ownership of such securities, except to the extent of
their pecuniary interests therein.
(43)
Riva Ridge Capital Management L.P.
(RRCM) serves as (i) investment manager to Riva
Ridge Master Fund, Ltd. (Riva Ridge) and
(ii) sub-advisor
to Mariner Investment Group, LLC, who is investment manager to
Mariner LDC (LDC and, together with Riva Ridge, the
RRCM Funds). LDCs shares include
61,503 shares underlying warrants to purchase shares of our
common stock. Riva Ridge GP LLC, GP (Riva GP) is the
general partner to RRCM. The managing members of Riva GP are
Stephen Golden and James Shim (collectively the Riva
Managers). RRCM, Riva GP and each of the Riva Managers may
be deemed to beneficially own the securities held by the RRCM
Funds. RRCM, Riva GP and each of the Riva Managers each disclaim
beneficial ownership of such securities except to the extent of
their pecuniary interests therein.
(44)
Tricadia Capital Management, LLC
(TCM) is the Investment Manager for Mariner-Tricadia
Credit Strategies Master Fund, Ltd. (MTCS) and
Structured Credit Opportunities Fund II, LP
(SCOPESII). Tricadia Holdings, L.P. (Tricadia
Holdings) wholly owns TCM. Tricadia Holdings GP, LLC
(Holdings GP) is the general partner of Tricadia
Holdings. Michael Barnes and Arif Inayatullah are the managing
members of Holdings GP. Accordingly, TCM, Tricadia Holdings,
Holdings GP, Mr. Barnes and Mr. Inayatullah may be
deemed to beneficially own the securities held by MTCS and
SCOPESII. TCM, Tricadia Holdings, Holdings GP, Mr. Barnes
and Mr. Inayatullah each disclaim beneficial ownership of
such securities, except to the extent of their respective
pecuniary interests therein.
(45)
Includes 11,182 shares
underlying warrants to purchase shares of our common stock.
EBF & Associates, L.P. (EBF) is the
investment adviser to Merced Partners II, L.P. (Merced
II). Lydiard Partners, L.P. (Lydiard) is the
general partner of Merced II, and Tanglewood Capital
Management, L.P. (TCM) is the general partner of
Lydiard. Global Capital Management, Inc. (GCM) is
the general partner of EBF. Michael J. Frey is the majority
owner of EBF and sole owner, Chairman and CEO of GCM and TCM.
EBF, GCM, Lydiard, TCM, and Michael J. Frey may be deemed to
beneficially own the securities held by Merced II. EBF, GCM,
Lydiard, TCM, and Michael J. Frey each disclaim beneficial
ownership of such securities except to the extent of their
pecuniary interest therein.
(46)
Includes 11,639 shares
underlying warrants to purchase shares of our common stock. EBF
is the investment adviser to Merced Partners Limited Partnership
(Merced LP). EBF and GCM are the co-general partners
of the Merced LP, and GCM is the general partner of EBF. Michael
J. Frey is the majority owner of EBF and the majority owner,
Chairman and CEO of GCM. EBF, GCM, and Michael J. Frey may be
deemed to beneficially own the securities held by the Merced LP.
EBF, GCM, and Michael J. Frey each disclaim beneficial ownership
of such securities except to the extent of their pecuniary
interest therein.
(47)
Includes 17,127 shares
underlying warrants to purchase shares of our common stock held
by Monarch Capital Master Partners II-A LP, 49,682 shares
underlying warrants to purchase shares of our common stock held
by Monarch Capital Master Partners LP, 7,154 shares
underlying warrants to purchase shares of our common stock held
by Monarch Cayman Fund Limited, 62,941 shares
underlying warrants
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to purchase shares of our common
stock held by Monarch Debt Recovery Master Fund Ltd,
34,026 shares underlying warrants to purchase shares of our
common stock held by Monarch Opportunities Master Fund Ltd
and 5,933 shares underlying warrants to purchase shares of
our common stock held by Oakford MF Limited. Monarch Alternative
Capital LP (MAC) serves as advisor to Monarch Master
Funding Ltd, Monarch Debt Recovery Master Fund Ltd, Oakford
MF Limited, Monarch Cayman Fund Limited, Monarch
Opportunities Master Fund Ltd, Monarch Capital Master
Partners LP and Monarch Capital Master Partners II-A LP. MDRA GP
LP (MDRA GP) is the general partner of MAC and
Monarch GP LLC (Monarch GP, together with MDRA GP
and MAC, Monarch Management) is the general partner
of MDRA GP. Each of Monarch Management may be deemed to
beneficially own the registrable securities by virtue of their
positions. Each of Monarch Management disclaims beneficial
ownership of such securities except to the extent of its
pecuniary interests therein.
(48)
Shares to be registered consist of
1,185,245 shares of our common stock held by Morgan
Stanley & Co. Incorporated, including
13,898 shares underlying warrants to purchase shares of our
common stock. Morgan Stanley & Co. Incorporated is a
registered-broker dealer and, accordingly, may be deemed to be
an underwriter with respect to the securities it sells pursuant
to the prospectus. The shares of common stock held by Morgan
Stanley & Co. Incorporated were acquired in the
ordinary course of its investment business and not for the
purpose of resale or distribution. Morgan Stanley &
Co. Incorporated has not participated in the distribution of the
shares on behalf of the issuer. Morgan Stanley & Co.
Incorporated is widely held and a reporting company under the
Exchange Act.
(49)
Stephen Kotsen is the Portfolio
Manager at NCRAM and has the power to vote or dispose of the
shares of common stock held by such selling stockholder.
Consequently, Mr. Kotsen may be deemed to be the beneficial
owner of such shares, however, Mr. Kotsen disclaims any
beneficial ownership. Certain affiliates of NCRAM are members of
FINRA.
(50)
One East Partners Capital
Management LLC is the general partner of One East Partners
Master LP. The managing member of One East Partners Capital
Management LLC is James Cacioppo. One East Partners Capital
Management LLC and Jim Cacioppo may be deemed to beneficially
own the securities held by the One East Partners Master LP. One
East Partners Capital Management LLC and Jim Cacioppo each
disclaim beneficial ownership of such securities except to the
extent of their pecuniary interests therein.
(51)
Stone Lion Capital Partners L.P.
(Stone Lion Capital) is the investment manager for
Stone Lion Portfolio L.P. (Stone Lion Portfolio) and
Permal Stone Lion Fund Ltd. (collectively with Stone Lion
Portfolio, the Stone Lion Funds). Stone Lion Capital
may be deemed to beneficially own the securities held by the
Stone Lion Funds.
(52)
Plainfield Asset Management LLC
(Plainfield Asset Management) is the investment
manager of Plainfield Special Situations Master Fund II
Limited (Plainfield Master Fund II), Plainfield
OC Master Fund Limited (Plainfield OC Fund) and
Plainfield Liquid Strategies Master Fund Limited
(Plainfield Liquid Fund), each a private investment
vehicle. Max Holmes, an individual, is the chief investment
officer of Plainfield Asset Management. Max Holmes, Plainfield
Asset Management, Plainfield Master Fund II, Plainfield OC
Fund and Plainfield Liquid Fund are referred to collectively as
the Plainfield Persons. The Plainfield Persons own
an aggregate of 98,436 shares, of which 98,416 shares
are also registrable securities, and warrants convertible into
24,412 shares of our common stock. Plainfield Master
Fund II directly owns 74,150 registrable securities and
warrants convertible into 21,647 shares of our common
stock. Plainfield OC Fund directly owns 20,222 registrable
securities and warrants convertible into 2,734 shares of
our common stock. Plainfield Liquid Fund directly owns 4,044
registrable securities. Max Holmes owns 20 shares, none of
which are registrable securities, and warrants convertible into
31 shares of our common stock. Each of the Plainfield
Persons disclaims beneficial ownership of all securities
described above for which it is not the record owner, and this
description shall not be deemed an admission that any of the
Plainfield Persons is a beneficial owner of the securities for
purposes of Section 16 of the Exchange Act or except to the
extent of their pecuniary interest therein.
(53)
Quad Capital LLCs current
holdings consist of 81,400 shares of common stock, held at
its clearing firm, Goldman Sachs. Quad Capital LLC is a
registered-broker dealer operating under a JBO with Goldman
Sachs. It is aware that under certain readings, it may be deemed
to be an underwriter. The shares of common stock held by Quad
Capital LLC were acquired in the ordinary course of its
proprietary trading business, and since it has no customers or
beneficial owners for these shares, but rather owns them in its
own account solely, cannot utilize them for the purpose of
resale or distribution as those activities are understood in
this context. Quad Capital LLC has not participated in the
distribution of the shares on behalf of the issuer. Quad is a
privately held company that reports monthly via the FOCUS system
to the USSEC.
(54)
QVT Financial LP is the investment
manager for Quintessence Fund L.P. and QVT Fund LP and
shares voting and investment control over the securities held by
Quintessence Fund L.P. and QVT Fund LP. QVT Financial
GP LLC is the general partner of QVT Financial LP and as such
has complete discretion in the management and control of the
business affairs of QVT Financial LP. QVT Associates GP LLC is
the general partner of Quintessence Fund L.P. and QVT
Fund LP and may be deemed to beneficially own the
securities held by Quintessence Fund L.P. and QVT Fund LP.
The managing members of QVT Associates GP LLC are Daniel Gold,
Nicholas Brumm, Arthur Chu and Tracy Fu. Each of QVT Financial
LP, QVT Financial GP LLC, Daniel Gold, Nicholas Brumm, Arthur
Chu and Tracy Fu disclaims beneficial ownership of the
securities held by Quintessence Fund L.P. and QVT
Fund LP. QVT Associates GP LLC disclaims beneficial
ownership of the securities held by Quintessence Fund L.P.
and QVT Fund LP, except to the extent of its pecuniary
interest therein.
(55)
Includes 28,526 shares
underlying warrants to purchase shares of our common stock.
(56)
Seneca Capital Investments, L.P.
(Seneca LP) is the investment manager for Seneca
Capital, L.P. (Seneca). Senecas shares include
6,155 shares underlying warrants to purchase shares of our
common stock. Seneca Capital Investments, L.L.C. (Seneca
LLC) is the general partner of Seneca LP. Seneca Capital
Advisors, L.L.C. (Seneca Advisors) is the general
partner of Seneca. Douglas Hirsch is the managing member of each
of Seneca LLC and Seneca Advisors. Each of Seneca LP, Seneca
LLC, Seneca Advisors and Mr. Hirsch disclaims beneficial
ownership of such securities except to the extent of its or his
pecuniary interest therein.
(57)
Silver Point Capital, L.P.
(Silver Point) is the investment manager of Silver
Point Capital Fund, LP and Silver Point Capital Offshore Master
Fund, LP. Messrs. Edward A. Mule and Robert J. OShea
each indirectly control Silver Point and by virtue of such
status may be deemed to be natural control persons with respect
to the securities covered by this questionnaire.
Messrs. Mule and OShea disclaim
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beneficial ownership of such
securities, except to the extent of any pecuniary interest, and
this report shall not be deemed to be an admission that they are
the beneficial owners of such securities.
(58)
Solus Alternative Asset Management
LP (Solus) is the investment advisor for Sola Ltd
(Sola Master) and Solus Core Opportunities Master
Fund Ltd (Core Master and, together with Sola
Master, the Solus Funds). Sola Masters shares
include 228,213 shares underlying warrants to purchase
shares of our common stock. Solus GP LLC (Solus GP)
is the general partner of Solus. The Managing Member of Solus GP
is Christopher Pucillo (the Managing Member). Solus,
Solus GP and the Managing Member may be deemed to beneficially
own the securities held by the Solus Funds. Solus, Solus GP and
the Managing Member each disclaim beneficial ownership of such
securities except to the extent of their pecuniary interests
therein.
(59)
Spectrum Group Management LLC
(SGM) is the investment manager for Spectrum
Investment Partners, L.P. (SIP LP) and Spectrum
Investment Partners International, Ltd. (SIPI Ltd.
and, together with SIP LP, the Spectrum Funds). SIP
LPs shares include 678 shares underlying warrants to
purchase shares of our common stock. SIPI Ltds shares
include 1,745 shares underlying warrants to purchase shares
of our common stock. Spectrum Group GP LLC (SG GP
LLC) is the general partner of SIP LP. The managing member
of SGM and SG GP LLC is Jeffrey Schaffer. SGM, SG GP LLC and
Jeffrey Schaffer may be deemed to beneficially own the
securities held by the Spectrum Funds. SGM, SG GP LLC and
Jeffrey Schaffer each disclaim beneficial ownership of such
securities except to the extent of their pecuniary interests
therein.
(60)
Stark Criterion Management LLC
(Stark Criterion) is the investment manager of Stark
Criterion Master Fund Ltd. (Criterion Master).
The managing members of Stark Criterion are Michael Roth and
Brian Stark (collectively, the Stark Managers).
Stark Criterion and the Stark Managers may be deemed to
beneficially own the securities held by Criterion Master. Stark
Criterion and the Stark Managers each disclaim beneficial
ownership of such securities except to the extent of their
pecuniary interests therein.
(61)
Stark Offshore Management LLC
(Stark Offshore) is the investment manager of Stark
Master Fund Ltd. (Stark Master). The managing
members of Stark Offshore are the Stark Managers. Stark Offshore
and the Stark Managers may be deemed to beneficially own the
securities held by Stark Master. Stark Offshore and the Stark
Managers each disclaim beneficial ownership of such securities
except to the extent of their pecuniary interests therein.
(62)
Includes 9,440 shares
underlying warrants to purchase shares of our common stock.
Stonehill Capital Management LLC, a Delaware limited liability
company (SCM), is the investment adviser of
Stonehill Institutional Partners, L.P. (Stonehill
Institutional). Stonehill General Partner, LLC, a Delaware
limited liability company (Stonehill GP), is the
general partner of Stonehill Institutional. By virtue of such
relationships, SCM and Stonehill GP may be deemed to have voting
and dispositive power over the shares of common stock owned by
Stonehill Institutional. SCM and Stonehill GP disclaim
beneficial ownership of such shares of common stock.
Mr. John Motulsky, Mr. Christopher Wilson,
Mr. Wayne Teetsel, Mr. Thomas Varkey,
Mr. Jonathan Sacks, and Mr. Peter Sisitsky
(collectively, the Stonehill Members) are the
managing members of SCM and Stonehill GP, and may be deemed to
have shared voting and dispositive power over the shares of
common stock owned by Stonehill Institutional. The Stonehill
Members disclaim beneficial ownership of such securities.
(63)
Includes 19,352 shares
underlying warrants to purchase shares of our common stock. SCM
is the investment adviser and a director of Stonehill Master
Fund Ltd. (Stonehill Master). By virtue of such
relationships, SCM may be deemed to have voting and dispositive
power over the shares of common stock owned by Stonehill Master.
SCM disclaims beneficial ownership of such shares of common
stock. The Stonehill Members are the managing members of SCM,
and may be deemed to have shared voting and dispositive power
over the shares of common stock owned by Stonehill Master. The
Stonehill Members disclaim beneficial ownership of such
securities.
(64)
Suttenbrook Capital Management LP
(SBCMLP) is the investment manager for Suttonbrook
Capital Portfolio LP and Suttonbrook Eureka Fund LP
(collectively the Funds). John London is the
controlling individual of SBCMLP. SBCMLP and John London may be
deemed beneficial owners of the securities held by the Funds.
SBCMLP and John London each disclaim beneficial ownership of
such securities except to the extent of their investment
management responsibilities.
(65)
Consists of 1,144,429 shares
of common stock held by UBS Securities, LLC including
280,184 shares underlying warrants to purchase shares of
our common stock. UBS Securities LLC is a registered-broker
dealer and, accordingly, may be deemed to be an underwriter. The
shares of common stock held by UBS Securities, LLC were acquired
in the ordinary course of its investment business and not for
the purpose of resale or distribution. UBS Securities, LLC has
not participated in the distribution of the shares on behalf of
the issuer.
(66)
Includes 6,093 shares
underlying warrants to purchase shares of our common stock.
Venor Capital Management LP is the investment manager for Venor
Capital Master Fund Ltd. Venor Capital Management GP LLC is
the general partner of Venor Capital Management LP. The managing
members of Venor Capital Management GP LLC are Jeffrey Bersh and
Michael Wartell. Venor Capital Management LP, Venor Capital
Management GP LLC, Jeffrey Bersh, and Michael Wartell may be
deemed to beneficially own the securities held by Venor Capital
Master Fund Ltd. Venor Capital Management LP, Venor Capital
Management GP LLC, Jeffrey Bersh and Michael Wartell each
disclaim beneficial ownership of such securities except to the
extent of their pecuniary interests therein.
(67)
Verition Fund Management LLC
is the investment manager for Verition Multi-Strategy Master
Fund Ltd. The managing member of Verition
Fund Management LLC is Nicholas Maounis. Verition
Fund Management LLC and Nicholas Maounis may be deemed to
beneficially own the securities held by Verition Multi-Strategy
Master Fund Ltd. Verition Fund Management LLC and
Nicholas Maounis each disclaim beneficial ownership of such
securities except to the extent of their pecuniary interests
therein.
(68)
Includes 605 shares underlying
warrants to purchase shares of our common stock. Includes
20,003 shares registered by Morgan Stanley & Co.
Incorporated on behalf of VSO Master Fund Ltd. (VSO Master
Fund). VSO Capital Management, LLC (VSO
Management) is the investment manager for VSO Master Fund,
VSO Fund, Ltd. (VSO Fund) and VSO Partners, LP
(VSO Partners and, collectively, the VSO
Funds). VSO Capital GP, LLC (VSO Capital) is
the general partner of VSO Partners. The managing member of VSO
Management and VSO Capital is Alex Lagetko (the VSO
Manager). VSO Management, VSO Capital and the VSO Manager
may be
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deemed to beneficially own the
securities held by the VSO Funds. VSO Management, VSO Capital
and the VSO Manager each disclaim beneficial ownership of such
securities except to the extent of their pecuniary interests
therein.
(69)
Whitebox Advisors, LLC
(WA) is the investment advisor to, and the managing
member of, Whitebox Credit Arbitrage Advisors, LLC
(WCAA). WCAA is the general partner of Whitebox
Credit Arbitrage Partners, LP (WCAP). WA and WCAA
may be deemed to beneficially own the securities held by WCAP.
WA and WCAA each disclaim beneficial ownership of such
securities except to the extent of their pecuniary interests
therein.
(70)
WA is the investment advisor to,
and the managing member of, Whitebox Multi-Strategy Advisors,
LLC (WMSA). WMSA is the general partner of Whitebox
Multi-Strategy Partners, LP (WMSP). WA and WMSA may
be deemed to beneficially own the securities held by WMSP. WA
and WMSA each disclaim beneficial ownership of such securities
except to the extent of their pecuniary interests therein.
WITH SELLING STOCKHOLDERS
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250,000,000 shares of common stock, par value $0.01 per
share; and
50,000,000 shares of preferred stock, par value $0.01 per
share.
36
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prior to such time, the board of directors of the corporation
approved either the business combination or the transaction that
resulted in the stockholder becoming an interested stockholder;
37
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upon consummation of the transaction that resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced,
excluding certain shares; or
at or subsequent to that time, the business combination is
approved by the board of directors of the corporation and
authorized by the affirmative vote of holders of at least
66
2
/
3
%
of the outstanding voting stock that is not owned by the
interested stockholder.
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December 31, 2019,
the repeal, amendment or modification of Section 382 of the
Internal Revenue Code of 1986, as amended
(Section 382) in such a way as to render the
restrictions imposed by Section 382 no longer applicable to
Visteon,
the beginning of a taxable year of Visteon in which no net
operating loss carryovers, capital loss carryovers, alternative
minimum tax credit carryovers and foreign tax credit carryovers
or any loss or deduction attributable to a net realized
built-in loss within the meaning of Section 382
of Visteon or any of its direct or indirect subsidiaries
(Tax Benefits) are available, and
the date on which the limitation amount imposed by
Section 382 in the event of an ownership change of Visteon
would not be materially less than the net operating loss carry
forward or net unrealized built-in loss of Visteon (the earliest
of such dates being the Restriction Release
Date), or
if the transferor is a person or group of persons that is
identified as a 5-percent shareholder of Visteon
pursuant to Treasury Regulation § 1.382-2T(g) other
than a direct public group as defined in such
regulation (a Five-Percent Stockholder), or
to the extent that, as a result of such transfer, either any
person or group of persons shall become a
Five-Percent
Stockholder or the percentage stock ownership interest in
Visteon of any Five-Percent Stockholder shall be increased.
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the material facts as to such persons or persons
relations or interest as to the contract or transaction are
disclosed or are known to the board of directors or the
committee, and the board of directors or committee in good faith
authorizes the contract or transaction by the affirmative vote
of a majority of disinterested directors, even though the number
of disinterested directors may be less than a quorum; or
the material facts as to such persons or persons
relationship or interest as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
the contract or transaction is fair as to us as of the time it
is authorized, approved or ratified by the board of directors, a
committee thereof or the stockholders.
40
Table of Contents
purchases a claim against, an interest in, or a claim for an
administrative expense against the debtor, if that purchase is
with a view to distributing any security received in exchange
for such a claim or interest;
offers to sell securities offered under the Plan of
Reorganization for the holders of those securities;
offers to buy those securities from the holders of the
securities, if the offer to buy is (i) with a view to
distributing those securities; and (ii) (a) under an
agreement made in connection with the Plan of Reorganization,
the completion of the Plan of Reorganization, or with the offer
or sale of securities under the Plan of Reorganization; or
(b) is an affiliate of the issuer.
41
Table of Contents
42
Table of Contents
in the
over-the-counter
market or on any national securities exchange on which our
shares are listed or traded, if any;
in privately negotiated transactions;
in underwritten transactions;
in a block trade in which a broker-dealer will attempt to sell
the offered shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction;
through purchases by a broker-dealer as principal and resale by
the broker-dealer for its account pursuant to this prospectus;
in ordinary brokerage transactions and transactions in which the
broker solicits purchasers;
through the writing of options (including put or call options),
whether the options are listed on an options exchange or
otherwise;
through loans or pledges of the securities to a broker-dealer or
an affiliate thereof;
by entering into transactions with third parties who may (or may
cause others to) issue securities convertible or exchangeable
into, or the return of which is derived in whole or in part from
the value of, our common stock;
a combination of any such methods; or
any other method permitted pursuant to applicable law.
43
Table of Contents
the name of the selling stockholders;
the number of shares being offered;
the terms of the offering;
the names of the participating underwriters, broker-dealers or
agents;
any discounts, commissions or other compensation paid to
underwriters or broker-dealers and any discounts, commissions or
concessions allowed or reallowed or paid by any underwriters to
dealers;
the public offering price; and
other material terms of the offering.
44
Table of Contents
Item 13.
Other
Expenses of Issuance and Distribution.
$
209,323
50,000
300,000
100,000
$
659,323
Item 14.
Indemnification
of Directors and Officers.
Item 15.
Recent
Sales of Unregistered Securities.
II-1
Table of Contents
Item 16.
Exhibits
and Financial Statement Schedules.
Item 17.
Undertakings
II-2
Table of Contents
II-3
Table of Contents
By:
Title:
Executive Vice President and Chief
Chairman, President and Chief Executive Officer
(Principal Executive Officer)
October 22, 2010
Executive Vice President and Chief Financial Officer
(Principal Financial Officer)
October 22, 2010
Vice President, Corporate Controller and Chief Accounting
Officer
(Principal Accounting Officer)
October 22, 2010
Director
October 22, 2010
Director
N/A
Director
October 22, 2010
II-4
Table of Contents
Director
October 22, 2010
Director
October 22, 2010
Director
October 22, 2010
Director
October 22, 2010
Director
October 22, 2010
II-5
Table of Contents
2
.1
Fifth Amended Joint Plan of Reorganization, filed
August 31, 2010 (incorporated by reference to
Exhibit 2.1 to the Current Report on
Form 8-K
of Visteon Corporation filed on September 7, 2010
(File No. 001-15827)).
2
.2
Fourth Amended Disclosure Statement, filed June 30, 2010
(incorporated by reference to Exhibit 2.2 to the Current
Report on
Form 8-K
of Visteon Corporation filed on September 7, 2010
(File No. 001-15827)).
3
.1
Second Amended and Restated Certificate of Incorporation of
Visteon Corporation (incorporated by reference to
Exhibit 3.1 to the Registration Statement on
Form 8-A
of Visteon Corporation filed on September 30, 2010 (File
No. 000-54138)).
3
.2
Second Amended and Restated Bylaws of Visteon Corporation
(incorporated by reference to Exhibit 3.2 to the
Registration Statement on
Form 8-A
of Visteon Corporation filed on September 30, 2010 (File
No. 000-54138)).
4
.1
Warrant Agreement, dated as of October 1, 2010, by and
between Visteon Corporation and Mellon Investor Services LLC
(incorporated by reference to Exhibit 10.1 to the
Registration Statement on
Form 8-A
of Visteon Corporation filed on September 30, 2010 (File
No. 000-54138)).
4
.2
Warrant Agreement, dated as of October 1, 2010, by and
between Visteon Corporation and Mellon Investor Services LLC
(incorporated by reference to Exhibit 10.2 to the
Registration Statement on
Form 8-A
of Visteon Corporation filed on September 30, 2010 (File
No. 000-54138)).
5
.1
Legal Opinion of Kirkland & Ellis LLP.*
10
.1
Registration Rights Agreement, dated as of October 1, 2010,
by and among Visteon Corporation and certain investors listed
therein (incorporated by reference to Exhibit 4.3 to the
Current Report on
Form 8-K
of Visteon Corporation filed on October 1, 2010 (File
No. 001-15827)).
10
.2
Equity Commitment Agreement, dated as of May 6, 2010, by
and among Visteon Corporation, Alden Global Distressed
Opportunities Fund, L.P., Allen Arbitrage, L.P., Allen Arbitrage
Offshore, Armory Master Fund Ltd., Capital Ventures
International, Caspian Capital Partners, L.P., Caspian Select
Credit Master Fund, Ltd., Citadel Securities LLC, CQS
Convertible and Quantitative Strategies Master
Fund Limited, CQS Directional Opportunities Master
Fund Limited, Crescent 1 L.P., CRS Fund Ltd., CSS,
LLC, Cumber International S.A., Cumberland Benchmarked Partners,
L.P., Cumberland Partners, Cyrus Europe Master Fund Ltd.,
Cyrus Opportunities Master Fund II, Ltd., Cyrus Select
Opportunities Master Fund, Ltd., Deutsche Bank Securities Inc.
(solely with respect to the Distressed Products Group), Elliott
International, L.P., Goldman, Sachs & Co. (solely with
respect to the High Yield Distressed Investing Group), Halbis
Distressed Opportunities Master Fund Ltd., Kivu Investment
Fund Limited, LongView Partners B, L.P., Mariner LDC
(Caspian), Mariner LDC (Riva Ridge), Merced Partners II, L.P.,
Merced Partners Limited Partnership, Monarch Master Funding
Ltd., NewFinance Alden SPV, Oak Hill Advisors, L.P.,
Quintessence Fund L.P., QVT Fund LP, Riva Ridge Master
Fund, Ltd., Seneca Capital LP, Silver Point Capital, L.P., SIPI
Master Ltd., Solus Alternative Asset Management LP, Spectrum
Investment Partners, L.P., Stark Criterion Master
Fund Ltd., Stark Master Fund Ltd., The Liverpool
Limited Partnership, The Seaport Group LLC Profit Sharing Plan,
UBS Securities LLC, Venor Capital Management, Whitebox Combined
Partners, L.P., and Whitebox Hedged High Yield Partners, L.P.
(incorporated by reference to Exhibit 2.1 to the Quarterly
Report on
Form 10-Q
of Visteon Corporation filed on August 9, 2010 (File
No. 001-15827)).
Table of Contents
10
.3
First Amendment, dated as of June 13, 2010, to the Equity
Commitment Agreement, by and among Visteon Corporation, Alden
Global Distressed Opportunities Fund, L.P., Allen Arbitrage,
L.P., Allen Arbitrage Offshore, Armory Master Fund Ltd.,
Capital Ventures International, Caspian Capital Partners, L.P.,
Caspian Select Credit Master Fund, Ltd., Citadel Securities LLC,
CQS Convertible and Quantitative Strategies Master
Fund Limited, CQS Directional Opportunities Master
Fund Limited, Crescent 1 L.P., CRS Fund Ltd., CSS,
LLC, Cumber International S.A., Cumberland Benchmarked Partners,
L.P., Cumberland Partners, Cyrus Europe Master Fund Ltd.,
Cyrus Opportunities Master Fund II, Ltd., Cyrus Select
Opportunities Master Fund, Ltd., Deutsche Bank Securities Inc.
(solely with respect to the Distressed Products Group), Elliott
International, L.P., Goldman, Sachs & Co. (solely with
respect to the High Yield Distressed Investing Group), Halbis
Distressed Opportunities Master Fund Ltd., Kivu Investment
Fund Limited, LongView Partners B, L.P., Mariner LDC
(Caspian), Mariner LDC (Riva Ridge), Merced Partners II, L.P.,
Merced Partners Limited Partnership, Monarch Master Funding
Ltd., NewFinance Alden SPV, Oak Hill Advisors, L.P.,
Quintessence Fund L.P., QVT Fund LP, Riva Ridge Master
Fund, Ltd., Seneca Capital LP, Silver Point Capital, L.P., SIPI
Master Ltd., Solus Alternative Asset Management LP, Spectrum
Investment Partners, L.P., Stark Criterion Master
Fund Ltd., Stark Master Fund Ltd., The Liverpool
Limited Partnership, The Seaport Group LLC Profit Sharing Plan,
UBS Securities LLC, Venor Capital Management, Whitebox Combined
Partners, L.P., and Whitebox Hedged High Yield Partners, L.P.
(incorporated by reference to Exhibit 2.2 to the Quarterly
Report on
Form 10-Q
of Visteon Corporation filed on August 9, 2010 (File
No. 001-15827)).
10
.4
Term Loan Agreement, dated October 1, 2010 by and among
Visteon Corporation, certain of its subsidiaries, the lenders
party thereto and Morgan Stanley Senior Funding Inc. as the Term
Administrative Agent, (incorporated by reference to
Exhibit 4.2 to the Current Report on
Form 8-K
of Visteon Corporation filed on October 1, 2010 (File
No. 001-15827)).
10
.5
Revolving Loan Credit Agreement, dated October 1, 2010 by
and among Visteon Corporation, certain of its subsidiaries, the
lenders party thereto and Morgan Stanley Senior Funding, Inc.,
as the Revolver Administrative Agent (incorporated by reference
to Exhibit 10.2 to the Current Report on
Form 8-K
of Visteon Corporation filed on October 1, 2010 (File
No. 001-15877)).
10
.6
Employment Agreement, dated October 1, 2010, by and between
Visteon Corporation and Donald J. Stebbins
(incorporated by reference to Exhibit 10.5 to the current
report on
Form 8-K
of Visteon Corporation filed on October 1, 2010 (File
No. 001-15827)).
10
.7
Form of Executive Officer Change in Control Agreement
(incorporated by reference to Exhibit 10.6 to the Current
Report on
Form 8-K
of Visteon Corporation filed on October 1, 2010
(File No. 001-15827)).
10
.8
Form of Officer Change In Control Agreement (incorporated by
reference to Exhibit 10.7 to the Current Report on
Form 8-K
of Visteon Corporation filed on October 1, 2010 (File
No. 001-15827)).
10
.9
Global Settlement and Release Agreement, dated
September 29, 2010, by and among Visteon Corporation, Ford
Motor Company and Automotive Components Holdings, LLC
(incorporated by reference to Exhibit 10.4 to the Current
Report on
Form 8-K
of Visteon Corporation filed on October 1, 2010 (File
No. 001-15827)).
10
.10
Visteon Corporation 2010 Incentive Plan (incorporated by
reference to Exhibit 10.1 to the Registration Statement on
Form S-8
of Visteon Corporation filed on September 30, 2010 (File
No. 333-169695)).
10
.10.1
Form of Terms and Conditions of Initial Restricted Stock Grants
under the Visteon Corporation 2010 Incentive Plan (incorporated
by reference to Exhibit 10.2 to the Registration Statement
on
Form S-8
of Visteon Corporation filed on September 30, 2010 (File
No. 333-169695)).
10
.10.2
Form of Terms and Conditions of Initial Restricted Stock Unit
Grants under the Visteon Corporation 2010 Incentive Plan
(incorporated by reference to Exhibit 10.3 to the
Registration Statement on
Form S-8
of Visteon Corporation filed on September 30, 2010 (File
No. 333-169695)).
10
.11
Visteon Corporation Amended and Restated Deferred Compensation
Plan for Non-Employee Directors.*
10
.12
Visteon Corporation 2010 Supplemental Executive Retirement
Plan.*
10
.13
Visteon Corporation 2010 Pension Parity Plan.*
10
.14
2010 Visteon Executive Severance Plan.*
Table of Contents
21
.1
Subsidiaries of Visteon Corporation (incorporated by reference
to Exhibit 21.1 to the Annual Report on
Form 10-K
of Visteon Corporation for the period ended December 31,
2009 (File
No. 001-15827)).
23
.1
Consent of Independent Registered Public Accounting Firm,
PricewaterhouseCoopers LLP.*
23
.2
Consent of Kirkland & Ellis LLP (included as part of
Exhibit 5.1).*
24
.1
Power of Attorney (included on the signature page).*
*
Filed herewith.
Management compensatory plan or arrangement.
1. | When the Registration Statement becomes effective under the Act, the Shares will be duly authorized and validly issued, fully paid and non-assessable. | ||
2. | The Warrant Shares have been duly authorized, and when the Warrant Shares have been duly issued in accordance with the terms of the Warrant Agreements and when the Warrant Shares are duly countersigned by the Companys transfer agent/registrar, and upon receipt by the Company of the consideration to be paid therefor, the Warrant Shares will be validly issued, fully paid and nonassessable. |
Sincerely,
|
||||
/s/ Kirkland & Ellis LLP | ||||
KIRKLAND & ELLIS LLP | ||||
The Board of Directors of Visteon Corporation has adopted this Deferred Compensation Plan, effective October 11, 2000, for the benefit of the non-employee directors of Visteon Corporation. |
When used herein the following words and phrases shall have the meanings set forth below unless the context clearly indicates otherwise: |
(a) | Account means the recordkeeping account maintained by the Company in the name of the Participant. An Account is established for record keeping purposes only and not to reflect the physical segregation of assets on the Participants behalf, and may consist of such subaccounts or balances as the Administrative Committee may determine to be necessary or appropriate, including the following: |
1. | Voluntary Deferral Subaccount means the Visteon Stock Units that are credited to the Participants Account as a result of the Participants election to make Voluntary Deferrals. | ||
2. | Dividend Subaccount means the Visteon Stock Units that are credited to the Participants Account as a result of deemed dividends on Visteon Stock Units credited to the Participants Account. | ||
3. | Post-Petition Voluntary Deferral Subaccount means the amount credited to the Participants Account between June 1, 2009 and September 30, 2010, as a result of the Participants election to make Voluntary Deferrals plus interest credited as of the last day of each month prior to distribution. |
The interest rate for any calendar year will be a rate that, when credited and compounded monthly, equals the annual rate of interest on 10-year Treasury securities for the first day in the September immediately preceding the first day of the year for which interest is being paid. The interest credited for any month will be equal to one-twelfth of the product obtained by multiplying the balance of the Participants Post-Petition Voluntary Deferral Subaccount on the first day of the month by the applicable interest rate for the year. |
(b) | Administrative Committee means the non-participating members of the Board. | ||
(c) | Affiliate means a person or legal entity that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control, with the Company, within the meaning of Code Sections 414(b) and (c); provided that Code Sections 414(b) and (c) shall be applied by substituting at least fifty percent (50%) for at least eighty percent (80%) each place it appears therein. | ||
(d) | Board means the Board of Directors of the Company. | ||
(e) | Code means the Internal Revenue Code of 1986, as interpreted by regulations and rulings issued pursuant thereto, all as amended and in effect from time to time. | ||
(f) | Company means Visteon Corporation, or any successor thereto. | ||
(g) | Company Stock means the common stock of the Company, par value $0.01. | ||
(h) | Exchange means the principal securities exchange on which Company Stock is traded or the over-the-counter market if Company Stock is not traded on a securities exchange. | ||
(i) | Participant means each member of the Board who is not a common-law employee of the Company. | ||
(j) | Plan means the Visteon Corporation Deferred Compensation Plan for Non-Employee Directors, as amended from time to time. |
2
(k) | Plan Year means the period beginning on the effective date of the Plan and ending on December 31, 2000, and thereafter, the twelve month period beginning on January 1 and ending December 31 of each year. | ||
(l) | Separation from Service means the date on which a Participant ceases to be a member of the Board of Directors of the Company (or the board of directors of any Affiliate), provided that such cessation constitutes a separation from service for purposes of Code Section 409A. | ||
(m) | Visteon Stock Units mean the hypothetical shares of Company Stock that are credited to a Participants Account in accordance with Sections 4 and 5. | ||
(n) | Voluntary Deferrals mean cash remuneration that would otherwise be paid to a Participant but that, in accordance with the Participants election, is converted into Visteon Stock Units and credited to the Participants Voluntary Deferral Subaccount. |
(a) | General Authority. The Administrative Committee shall have the full power and discretionary authority to: (1) interpret and administer the Plan and any instrument relating to or made under the Plan; (2) establish, amend, suspend or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan; and (3) make any other determination, and take any other action, that the Administrative Committee deems necessary or desirable for the administration of the Plan. The decisions and determinations of the Administrative Committee need not be uniform and may be made differently among Participants, and shall be final, binding and conclusive on all interested parties. | ||
(b) | Recordkeeping . The Administrative Committee shall be responsible for maintaining all Accounts; provided that the Administrative Committee may in its discretion appoint or remove a third-party recordkeeper to maintain the Accounts as provided herein. |
3
(c) | Effectiveness of Elections . Any elections or beneficiary designations made under this Plan shall be effective only upon the delivery of the appropriate form to the Secretary of the Company and its acceptance by the Administrative Committee. |
(a) | Voluntary Deferrals . Each Participant may elect, in such form and manner specified by the Administrative Committee, to defer the receipt of any cash remuneration to be earned with respect to services to be performed as a non-employee member of the Board after the effective date of the election. Such election shall be effective on the first day of the Plan Year following the date it is received by the Administrative Committee, provided that to the extent permitted under Code Section 409A, a Participant may elect within 30 days of first becoming a Participant to have an election take effect immediately with respect to any compensation for services to be performed after the date of the election. An election, once it becomes effective with respect to a Plan Year, shall be irrevocable for that Plan Year. An election shall continue in effect for subsequent Plan Years (and with respect to any Plan Year shall become irrevocable on January 1 of that Plan Year) unless modified by the Participant in accordance with this Section 4(a). A Participant may modify an existing election effective on the first day of the Plan Year following the date on which the revised election is received by the Administrative Committee. | ||
(b) | Conversion to Visteon Stock Units . As of the last day of each month, all Voluntary Deferrals made by or on behalf of a Participant during that month shall be converted, for recordkeeping purposes, into whole and fractional Visteon Stock Units, with fractional units calculated to four decimal places, with the resulting Visteon Stock Units being credited to the Participants Voluntary Deferral Subaccount. The conversion shall be accomplished by dividing each Participants Voluntary Deferrals by the average of the high and low prices at which a share of Company Stock shall have been sold on the Exchange on the last day of such month on which the Exchange is open to transact trades. Notwithstanding the foregoing provisions of this Section 4(b), this Section 4(b) shall not apply to Voluntary Deferrals made by or on behalf of a Participant with respect to remuneration for services as a non-employee member of the Board |
4
between June 1, 2009 and September 30, 2010, and such Voluntary Deferrals shall be credited to the Participants Post-Petition Voluntary Deferral Subaccount |
(c) | Vesting . Each Participant shall at all times be 100% vested in his or her Voluntary Deferral Subaccount and Post-Petition Deferral Subaccount. |
(a) | Conversion to Visteon Stock Units . Any cash dividends that would have been payable in any month on the Visteon Stock Units credited to a Participants Account had such units been actual shares of Company Stock shall be converted, for recordkeeping purposes, into whole and fractional Visteon Stock Units, with fractional units calculated to four decimal places, with the resulting Visteon Stock Units credited to the Participants Dividend subaccount. The conversion shall be accomplished by dividing the Participants deemed dividends for the month by the average of the high and low prices at which a share of Common Stock shall have been sold on the Exchange on the last day of such month on which the Exchange is open to transact trades. Notwithstanding the foregoing provisions of this Section 5(a), this Section 5(a) shall not apply to cash dividends payable between June 1, 2009 and September 30, 2010, and any such dividends shall be reflected in a separate subaccount under the Plan | ||
(b) | Vesting . Each Participant shall at all times be 100% vested in his or her Dividend Subaccount. |
(a) | Distribution Date . Distribution of a Participants vested Account shall be made or commence to be made on the later of (i) January 15 of the calendar year following the calendar year in which, or (ii) the first day of the seventh month following the date on which occurs the Participants Separation from Service. | ||
(b) | Participant Distribution Elections. Distribution shall be made in the form or forms of distribution elected by the Participant. A Participants distribution election with respect to any Plan Year applies to both (i) the Voluntary Deferrals made by or on behalf of the Participant during that Plan Year, and (ii) all dividend equivalent |
5
credits made with respect to such deferrals. The Participant may elect to have a distribution made either in (i) a single sum, or (ii) ten (10) annual installments. A Participant who fails to make any distribution election shall be deemed to have elected the single sum payment option. |
1. | Pre-2009 Plan Year Deferral Balances . The Participant may make a separate distribution election with respect to each Plan Year; provided that a Participants election with respect to a Plan Year shall continue in effect with respect to each subsequent Plan Year unless the Participant has submitted (and the Administrative Committee has received) a modified distribution election prior to January 1 of the Plan Year. On or before December 31, 2008, a Participant may further revise his or her distribution election with respect to any Plan Year; provided that a revised distribution election made during calendar years 2006, 2007 or 2008 with respect to any Plan Year will not be given effect, and the Participants immediately prior valid distribution election with respect to such Plan Year will continue in effect, if the revised election would operate to cause amounts that would otherwise be distributable in the calendar year in which the revised distribution election is made to be deferred for distribution in a subsequent calendar year, or to cause amounts that would otherwise be distributable in a subsequent calendar year to become distributable in the calendar year in which the revised election is made. A Participants distribution elections as in effect on December 31, 2008 for Plan Year ending on or before December 31, 2008, shall be irrevocable. | ||
2. | Post-2008 Plan Year Deferral Balances . The Participant may make a separate distribution election with respect to each Plan Year. Such election shall be effective on the first day of the Plan Year following the date it is received by the Administrative Committee; provided that to the extent permitted under Code Section 409A, a Participant may make a distribution election within 30 days of first becoming a Participant with respect to the Plan Year in which participation commences. A distribution election, once becoming effective with respect to a Plan Year, shall be irrevocable with respect to that Plan Year. An election shall continue in |
6
effect with respect for subsequent Plan Years (and, with respect to any Plan Year, shall become irrevocable on January 1 of that Plan Year) unless modified by the Participant in accordance with this Section 6. A Participant may modify an existing election for subsequent Plan Years effective on the first day of the Plan Year following the date on which the revised election is received by the Administrative Committee. |
(c) | Distribution Procedures. |
1. | Single Sum Distribution . If the Participant has elected the single sum distribution option, the Company, in accordance with directions from the Administrative Committee, will distribute to the Participant a cash payment determined by multiplying the number of Visteon Stock Units in the Participants Account that are the subject of the cash payment for which such election is in effect by the average of the high and low prices at which a share of Company Stock shall have been sold on the Exchange on the 5 th trading day preceding the date on which distribution is made; provided that the Organization and Compensation Committee of the Board may direct that all or any part of the Participants distribution be satisfied in shares of Company Stock equal to the number of Visteon Stock Units credited to the Participants Account (and cash in lieu of any fractional unit) for which such election is in effect. | ||
2. | Installment Distributions . If the Participant has elected the installment distribution option, the first installment will be paid on the date specified in Section 6(a). Each subsequent installment will be paid on January 15 of each succeeding calendar year during the installment period. The annual installment distribution amount for any year shall be initially determined on a share basis by dividing the number of Visteon Stock Units credited to the Participants Account as of January 1 of the year for which the distribution is being made and for which such an election is in effect by the number of installment payments remaining to be made, and then rounding the quotient obtained for all but the final installment to the next lowest whole number. The Company, in accordance with directions from the Administrative Committee, will distribute to the Participant a cash |
7
payment determined by multiplying the number of Visteon Stock Units in the Participants Account that are the subject of the cash payment for which such election is in effect by the average of the high and low prices at which a share of Company Stock shall have been sold on the Exchange on the 5 th trading day preceding the date on which distribution is made; provided that the Organization and Compensation Committee of the Board may direct that all or any part of the Participants distribution be satisfied in shares of Company Stock equal to the number of Visteon Stock Units credited to the Participants Account (and cash in lieu of any fractional unit) for which such election is in effect. |
(d) | Securities Restrictions . With respect to any shares of Company Stock distributed to a Participant, the Participant will not sell or otherwise dispose of such Company Stock except pursuant to an effective registration statement under the Securities Act of 1933, as amended (the Act), and applicable state securities laws, which the Company may but shall not be required to file, or in a transaction which, in the opinion of counsel for the Company, is exempt from such registration, and a legend may be placed on the certificates for the Company Stock to such effect. In addition, in the event of any underwritten public offering of the Companys securities pursuant to an effective registration statement filed under the Act and upon the request of the Company or the underwriters managing any underwritten offering of the Companys securities, the Participant shall not directly or indirectly sell, make any short sale of, loan, hypothecate, pledge, offer, grant or sell any option or other contract for the purchase of, or otherwise dispose of or transfer, or agree to engage in any of the foregoing transactions with respect to, any shares of Company Stock (other than those included in the registration) acquired under this Plan without the prior written consent of the Company or such underwriters, as the case may be, for such period of time (not to exceed 180 days) from the effective date of such registration as may be requested by the Company or such managing underwriters. | ||
(e) | Timing of Distributions . Any distribution that is to be made on a specified date may be made within 31 days following such date; provided that the Participant is not permitted, directly or indirectly, to specify the taxable year of the payment. |
8
(a) | Death Benefits . If a Participant dies before his or her entire Account has been distributed, then the remainder of the Participants Account shall be distributed in a lump sum on the later to occur of (i) January 15 of the calendar year following the calendar year in which, or (ii) the first day of the seventh month following the date on which, occurs the Participants death. Any distribution that is to be made on a specified date may be made within 31 days following such date. | ||
(b) | Designation of Beneficiary . Each Participant may designate one or more beneficiaries in such form and manner specified by the Administrative Committee, which beneficiary shall be entitled to receive the balance of the Participants Account as provided under subsection (a) in the event of the Participants death. The Participant may from time to time revoke or change the beneficiary without the consent of any prior beneficiary by filing a new designation with the Secretary of the Company. The last such designation received by the Secretary of the Company shall be controlling. If no beneficiary designation is in effect at the time the Participant dies, or if no designated beneficiary survives the Participant, the Participants beneficiary shall be the Participants estate. |
Benefits accumulated under the Plan shall constitute an unfunded, unsecured promise by the Company to provide such payments in the future, as and to the extent such amounts become payable. Benefits attributable to service as a non-employee member of the Board shall be paid from the general assets of the Company, and no person shall, by virtue of this Plan, have any interest in such assets, other than as an unsecured creditor of the Company. |
Except as otherwise expressly provided by this Plan, neither the Participant nor his or her beneficiary or beneficiaries, including, without limitation, the Participants executors and administrators, heirs, legatees, distributees, and any other person or persons claiming any benefits through the Participant under this Plan shall have any right to |
9
assign, transfer, pledge, hypothecate, sell, transfer, alienate and encumber or otherwise convey the right to receive any benefits hereunder, which benefits and the rights thereto are expressly declared to be nontransferable. The right to receive benefits under this Plan also shall not be subject to execution, attachment, garnishment, or similar legal, equitable or other process for the benefit of the Participants or beneficiarys creditors. Any attempted assignment, transfer, pledge hypothecation or other disposition of the Participants or beneficiarys rights to receive benefits under this Plan or the levy of any attachment, garnishment or similar process thereupon, shall be null and void and without effect. |
In the event of a Change in Control Event (as defined in Code Section 409A) with respect to the Company, a Participants Account shall be fully vested, notwithstanding any vesting schedule that would otherwise be applicable, and the value of the Participants Account, determined as of the date of the Change in Control Event, shall be immediately paid to the Participant in a single sum cash payment, notwithstanding any prior distribution election made by the Participant. |
Unless terminated earlier pursuant to Section 12, this Plan shall remain in effect during the term of service of the Participants and until the Account of each Participant has been distributed as provided herein. |
The Board reserves the right to amend or terminate this Plan at any time; provided that any termination of the Plan shall be implemented in accordance with the requirements of Code Section 409A, and the authority of the Administrative Committee to administer the Plan shall extend beyond the date of the Plans termination; and provided further that no amendment or termination of the Plan shall adversely affect the rights of any Participant or beneficiary to benefits then accrued without the written consent of the affected Participant or beneficiary. |
10
(a) | Governing Law . This Plan shall be governed by and construed in accordance with the internal laws of the State of Delaware, without reference to conflict of law principles thereof. | ||
(b) | Severability . If any provision of the Plan is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or as to any person, or under any law deemed applicable by the Administrative Committee, such provision shall be construed or deemed amended to conform to applicable laws, or if it cannot be so construed or deemed amended without, in the determination of the Administrative Committee, materially altering the intent of the Plan, such provision shall be stricken as to such jurisdiction or person, and the remainder of the Plan shall remain in full force and effect. | ||
(c) | Successors and Assigns . The Plan shall be binding upon, and inure to the benefit of, the Company and its successors and assigns, and upon any person acquiring, whether by merger, consolidation, purchase of assets or otherwise, all or substantially all of the Companys assets and business. | ||
(d) | Transactions Affecting Visteon Common Stock . In the event of any merger, share exchange, reorganization, consolidation, recapitalization, stock dividend, stock split or other change in corporate structure of the Company affecting Company Stock, the Administrative Committee shall make appropriate equitable adjustments with respect to the Visteon Stock Units (if any) credited to the Account of each Participant, including without limitation, adjusting the number of such Units or the date as of which such Units are valued and/or distributed, as the Administrative Committee determines is necessary or desirable to prevent the dilution or enlargement of the benefits intended to be provided under the Plan. | ||
(e) | Permitted Delay in Payment . If a distribution required under the terms of this Plan would jeopardize the ability of the Company or of an Affiliate to continue as a going concern, the Company or the Affiliate shall not be required to make such distribution. Rather, the distribution shall be delayed until the first date that making the distribution does not jeopardize the ability of the Company or of an |
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Affiliate to continue as a going concern. Further, if any distribution pursuant to the Plan will violate the terms of Federal securities law or any other applicable law, then the distribution shall be delayed until the earliest date on which making the distribution will not violate such law. |
(f) | Cancellation of Pre-Petition Visteon Stock Units . For the avoidance of doubt, all Visteon Stock Units that were credited to a Participants Account as of 11:59 PM EST on September 30, 2010, whether as a result of the deferral of restricted stock or other Voluntary Deferrals that were not credited to the Participants Post-Petition Voluntary Deferral Subaccount, were cancelled. |
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(i) | Contributory/Noncontributory Service Program: The portion of the Retirement Plan, excluding the Cash Balance Program. | ||
(ii) | Cash Balance Program: The portion of the Retirement Plan that calculates benefit accruals using a cash balance and/or pension equity formula, including, without limitation, the BalancePlus Component. |
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(i) | is employed on or after the Effective Date; | ||
(ii) | is employed in a Covered Employment Classification at termination of employment; and | ||
(iii) | terminates employment after his or her SERP Eligibility Date with the approval of the Participating Employer. |
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Covered Employment Classification | ||||
Immediately Prior to Retirement | Applicable Percentage | |||
Chairman
|
0.90 | % | ||
President
|
0.80 | % | ||
Executive Vice President
|
0.80 | % | ||
Senior Vice President
|
0.75 | % | ||
Elected Vice President
|
0.70 | % | ||
Executive Leader (other than a Participant who was a
Senior Leader on January 1, 2006 and who became an
Executive Leader on such date coincident with the
elimination of the Senior Leader classification) or
Leadership Level Two
|
0.40 | % | ||
Director, Senior Director or Senior
Leader (including Participants who were
classified as Senior Leaders on January
1, 2006 and who became either Executive
Leaders or Senior Directors coincident
with the elimination of the Senior
Leader classification), Leadership Level
Three, or Leadership Level Four
|
0.20 | % |
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(i) | The greater of (A) the monthly annuity benefit that the Participant would have received under the Cash Balance Program (excluding any pension equity component) if the Participants benefit under such program had been calculated in accordance with the modifications described in subsection (b) below, or (B) the monthly Pension Equity Benefit calculated in accordance with subsection (c) below; minus | ||
(ii) | The monthly annuity benefit to which the Participant is actually entitled under the Cash Balance Program (including any pension equity component); minus | ||
(iii) | The monthly annuity benefit to which the Participant is actually entitled under the Visteon Corporation 2010 Pension Parity Plan (prior to conversion of the benefit to a single sum form of payment). |
(i) | The limitations of Code Section 415 are disregarded; | ||
(ii) | For purposes of calculating a Participants cash balance benefit, the benefit is calculated by applying the definition of Compensation set forth |
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in Section 3.02(b) above in lieu of the definition set forth in the Cash Balance Program; and |
(i) | The Participant is treated as being eligible for the pension equity component of the BalancePlus Program, whether or not the Participant is actually covered under the BalancePlus Program and/or the pension equity component of the BalancePlus Program; | ||
(ii) | The limitations of Code Section 415 are disregarded; | ||
(iii) | For purposes of calculating the Pension Equity Benefit: |
(A) | The benefit is calculated by applying a benefit multiplier of 15% in lieu of the 12.5% benefit multiplier specified in the BalancePlus Program; | ||
(B) | The benefit is calculated by applying the definition of Final Average Compensation set forth in Section 3.02(c) above in lieu of the definitions set forth in the BalancePlus Program; and | ||
(C) | The benefit is calculating by disregarding Credited Service (or other service) that is attributable to employment prior to July 1, 2006 by a Participant who during such period was covered under the Contributory/Noncontributory Service Program or the Salaried Retirement Plan of Visteon Systems, LLC (as in effect prior to its merger into the Visteon Pension Plan). | ||
(D) | The Participants Credited Service is calculating without regard to the provision in the BalancePlus Program that limits Credited |
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Service to periods of eligible employment through June 30, 2006, i.e., eligible employment after June 30, 2006 is recognized. |
(E) | The benefit is calculated by applying the following early commencement reduction factors in lieu of the early commencement factors set forth in the BalancePlus Program: |
Applicable Period Preceding Participants | ||
Normal Retirement Date | Reduction | |
|
||
First 5 Years
|
1.25% Per Year* | |
Years in Excess of 5 But Not More Than 20
|
3.75% Per Year* | |
Years in Excess of 20
|
Actuarially Equivalent Reduction* |
* | The reduction will be prorated for portions of a year, by multiplying the applicable reduction for a full year by a fraction, the numerator of which is the number of full months in such partial year, and the denominator of which is 12. In addition, the reduction is cumulative, e.g. , if the Applicable Period is 23 years prior to the Participants Normal Retirement Date, the reduction is 1.25% for each of years one through five, 3.75% for each of years six through 20, and an Actuarially Equivalent reduction for years 21 through 23. The Actuarial Equivalence basis used for early retirement reductions in excess of 20 years is the same basis defined in the BalancePlus Program. |
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Applicable Percentage | ||||||||
Number of Years for | All Other | |||||||
Which a Conditional | Chairman | Eligible | ||||||
Annuity is Awarded | And President | Corporate Officers | ||||||
|
||||||||
1
|
30 | % | 20 | % | ||||
2
|
35 | 25 | ||||||
3
|
40 | 30 | ||||||
4
|
45 | 35 | ||||||
5 or more
|
50 | 40 |
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(i) | with respect to any such Participant who at any time shall have been a member of the Board of Directors, the President, an Executive Vice President, a Senior Vice President, a Vice President, the Treasurer, the Controller or the Secretary of the Company, such waiver may be granted by the Committee upon its determination that in its sole judgment there shall not have been and will not be any substantial adverse effect upon the Company or any subsidiary or affiliate thereof by reason of the nonfulfillment of such condition; and | ||
(ii) | with respect to any other such Participant, such waiver may be granted by the Retirement Committee designated under the Visteon Pension Plan upon its determination that in its sole judgment there shall not have been and will not be any such substantial adverse effect. |
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VISTEON CORPORATION
|
||||
/s/ Dorothy L. Stephenson | ||||
Dorothy L. Stephenson | ||||
Senior Vice President, Human Resources
October 5, 2010 Date |
||||
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(i) | Contributory/Noncontributory Service Program. The portion of the Retirement Plan, excluding the Cash Balance Program. | ||
(ii) | Cash Balance Program. The portions of the Retirement Plan that calculate benefit accruals using a cash balance and/or pension equity formula. |
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(i) | With respect to the Participants employment that is covered under the Contributory/Noncontributory Service Program, a death benefit will be paid under this Plan if and only if the Participant is survived by a spouse who is entitled to a survivor annuity under the Contributory/Noncontributory Service Program with respect to the same period of service. If a benefit is payable, it shall be paid to the same spouse who is entitled to the survivor annuity under the Retirement Plan, although payment of the benefit under this Plan will be made in the form of a single lump sum payment on the first day of the seventh month following the Participants death. The amount of the lump sum payment will be equal to the present value of the difference between (i) the monthly survivor annuity benefit that would have been payable to the spouse with respect to the Participants employment covered under the Contributory/Noncontributory Service Program if the Participants benefit (and the spouses survivor annuity benefit) were calculated without regard to the Limitations, and (ii) the monthly survivor annuity benefit actually payable to the spouse with respect to the Participants participation in the Contributory/Noncontributory Service Program. For purposes of this calculation, the monthly survivor annuity benefit shall be calculating by assuming commencement of the survivor annuity benefit on the first day of the month following the date on which the Participant would have attained age sixty-five (or if the Participant had already attained sixty-five years of age, the first day of the month following Participants death) The present |
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value will be determined by using the discount rates and mortality tables that were used to calculate the obligations for the Retirement Plan as disclosed in the Companys audited financial statements for the year ended immediately prior to the year in which the distribution to the spouse is paid, or, with respect to distributions to a spouse prior to December 31, 2010, as disclosed in the reorganized Companys financial statements as of the business day prior to the Effective Date. |
(ii) | With respect to the Participants employment that is covered under the Cash Balance Program, a death benefit will be paid to the Participants Beneficiary. Payment will be made in the form of a single lump sum payment on the first day of the seventh month following the Participants death. The amount of the lump sum payment will be equal to the difference between (i) the lump sum death benefit that would have been payable with respect to the Participants employment covered under the Cash Balance Program if the Participants benefit (and the Beneficiarys survivor benefit) were calculated without regard to the Limitations, and (ii) the lump sum death benefit actually payable with respect to the Participants participation in the Cash Balance Program, using the Financial Factors defined in section 3.02 above. |
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VISTEON CORPORATION
|
||||
/s/ Dorothy L. Stephenson | ||||
Dorothy L. Stephenson | ||||
Senior Vice President, Human Resources
October 5, 2010 Date |
||||
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VISTEON CORPORATION
|
||||
/s/ Dorothy L. Stephenson | ||||
Dorothy L. Stephenson | ||||
Senior Vice President, Human Resources | ||||
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