Exhibit 10.3
VISTEON SALARIED EMPLOYEE LEASE AGREEMENT
AGREEMENT (this "AGREEMENT") dated as of October 1, 2005 between Visteon
Corporation, a Delaware corporation ("VISTEON"), and Automotive Components
Holdings, LLC f/k/a VFH Holdings, LLC, a Delaware limited liability company,
("ACH"). Visteon and ACH are referred to herein individually as a "PARTY" and
collectively as the "PARTIES".
WITNESSETH:
WHEREAS, Visteon and Ford Motor Company ("FORD") have agreed to restructure
their business and commercial relationships, resulting, among other matters, in
a Ford-controlled entity acquiring, through the purchase of Automotive
Components Holdings, Inc. f/k/a/ VFH Holdings, Inc., certain assets and
liabilities related to Visteon's North America business, (the "BUSINESS")
pursuant to a Visteon "B" Purchase Agreement dated as of September 12, 2005;
WHEREAS, ACH is a wholly owned subsidiary of Automotive Components
Holdings, Inc. f/k/a/ VFH Holdings, Inc and the Business shall be contributed by
Visteon to ACH in connection with the transactions; and
WHEREAS, ACH desires to obtain the services of certain Visteon salaried
employees ("VISTEON SALARIED EMPLOYEES") to enable it to continue to conduct the
Business and Visteon is willing to provide the services of certain Visteon
Salaried Employees to ACH.
NOW THEREFORE, in consideration of the above premises and the mutual
covenants herein contained, and for other good and valuable consideration given
by each Party hereto to the other, the sufficiency and receipt of which are
hereby acknowledged, the Parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE 1
TERM
Section 1.01. Term. The term of this Agreement shall commence on October 1,
2005, such date being referred to hereafter as the "Effective Date" and shall
terminate on the earlier of (i) the termination of employment of all of the
Leased Employees (as defined below); (ii) the agreement of the Parties to
terminate this Agreement or (iii) December 31, 2009 ("TERM"). The Term may be
extended at ACH's option for an additional twelve month period ending December
31, 2010 ("EXTENDED TERM").
ARTICLE 2
ASSIGNMENT OF VISTEON SALARIED EMPLOYEES
Section 2.01. Employee Census. (a) A preliminary employee census is
attached as Schedule 2.01 ("PRELIMINARY CENSUS"). The Preliminary Census sets
forth a list of the Visteon Salaried Employees to be leased to ACH as of the
Effective Date, together with their base
salary, any other targeted or mandatory cash compensation, and including without
limitation, applicable bonus levels, job classification, and Global
Identification Number. Within ten days of the date hereof, Visteon shall update
the Preliminary Census with any applicable changes and deliver the Preliminary
Census to ACH. ACH shall have an additional ten days to approve the revised
Preliminary Census. After the revised Preliminary Census is approved by ACH, it
shall be substituted for Schedule 2.01 and shall be known as the "EMPLOYEE
CENSUS". Employees who are identified on the Employee Census shall be known as
"LEASED EMPLOYEES". Visteon shall update the Employee Census at least monthly
for any employee transaction (i.e., quits, death, transfers, etc.) in accordance
with this Agreement and any employees added shall also be known as Leased
Employees.
(b) The period during which Leased Employees are leased to ACH is referred
to as the "LEASE PERIOD". During the Lease Period, Visteon shall make available
to ACH the services of the Leased Employees as requested by ACH. For avoidance
of doubt, no Inactive Visteon Salaried Employee (as hereafter defined) shall be
leased to ACH as of the Effective Date. An Inactive Visteon Salaried Employee
shall be any Visteon Salaried Employee who is absent from work and who is
entitled to reinstatement on return to employment, including those on leave of
absence, workers' compensation leave or short or long term disability leave, but
excluding those who are on paid absence for jury duty, bereavement, short term
military service, vacation or holiday. If a Leased Employee becomes an Inactive
Visteon Salaried Employee and is removed from Visteon's active payroll at
anytime during the Lease Period, such Leased Employee shall be removed from the
Employee Census and ACH shall bear no further financial responsibility with
respect to such employee.
Section 2.02. Replacement of Attrition. (a) If ACH requires a replacement
for a Leased Employee who is no longer providing services to ACH, and ACH
determines that Visteon should provide the replacement employee, ACH will inform
Visteon of its requirements together with direction that the vacancy should be
filled by a Visteon new hire, an existing Visteon employee or an agency
employee, in its sole discretion, subject to Section 2.02(d) below. If ACH
directs that the position be filled by a Visteon new hire, Visteon shall use
commercially reasonable efforts to fill the position using Visteon's standard
employment practice, policies and procedures. If Visteon has an existing Visteon
employee who Visteon believes is qualified for the position, ACH shall consider
such qualified employee. Visteon may utilize its normal job posting procedures
for M7 and below positions or its personnel development process for M6 or above
positions to identify internal candidates for the position, either among the
Leased Employees or among other Visteon employees. Either Visteon or ACH may
suspend or narrow the scope of the internal candidate identification process,
upon ten days prior written notice to the other Party. In any event, for a
period of up to six months from the date hereof, a Visteon employee who is not a
Leased Employee shall not be considered for an open position at ACH; provided,
however, that the Parties may mutually agree to waive, modify or restore (if
previously waived) the six month restriction. Candidates for the position shall
be reviewed with the manager who initiated the employment request to determine
if the candidate is qualified for the position and the employment decision shall
be made in accordance with Visteon's applicable employment policies. If Visteon
hires the candidate and assigns such candidate to ACH, or if an existing Visteon
employee is approved
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by ACH for lease, Visteon shall modify the Employee Census to add any such
employee to the Employee Census in which case the employee shall become a Leased
Employee.
(b) If ACH determines that Visteon shall provide an agency employee to fill
a position, Visteon shall supply such agency employee to ACH at cost without
markup until the expiration of the Term. Visteon shall not supply any agency
employees to ACH for the Extended Term, provided however, that Visteon will
assign any contract for agency personnel to ACH, at ACH's request and shall use
commercially reasonable efforts to obtain the consent of the employment agency.
(c) ACH may contract directly with employment agencies or technical service
firms to supply required personnel, in its sole discretion. If ACH contracts
directly with such agencies or firms, it will furnish Visteon a census similar
in content and frequency to the Employee Census furnished to ACH by Visteon
pursuant to Section 1.01, and ACH shall reimburse Visteon for any applicable
occupancy charge with respect to such contracted employees on the same basis as
is provided in Section 4.01(iv) hereof. This provision shall not be subject to
the Agency Threshold described below.
(d) ACH shall instruct Visteon to replace a Leased Employee with a Leased
Employee and an agency employee with an agency employee; provided, however, that
ACH may, in its sole discretion, instruct Visteon to replace an agency employee
with a Leased Employee if the percentage of agency employees assigned to the
Business is not less than 5.7% of the number of Leased Employees assigned to the
Business as of the month end immediately prior to the date of such replacement
instruction (the "AGENCY THRESHOLD"). If the percentage of agency employees is
below the Agency Threshold, the Parties shall mutually agree on whether a
replacement shall be a Leased Employee or an agency employee.
Section 2.03. Return to Visteon by Mutual Agreement. In the event that
there is a promotional or other career development opportunity at Visteon
available for a Leased Employee, and upon mutual agreement between the Parties,
a Leased Employee may be removed from this Agreement and returned to Visteon on
a mutually agreeable date. Visteon shall modify the Employee Census accordingly
and any reimbursements from ACH with respect to such employee shall cease as of
the date the employee is returned to Visteon. Such attrition shall be replaced
as provided in Section 2.02 above. Notwithstanding the above, for a period of up
to six months after the date hereof, no Leased Employee shall be returned to
Visteon under the provisions of this Section 2.03 unless mutually agreed by the
Parties.
Section 2.04. Removal of Leased Employee from Lease Without Cause. If ACH
desires to discontinue the lease of any individual Leased Employee or group of
Leased Employees under circumstances that would make the Leased Employee
eligible for benefits under the Visteon Separation Program ("VSP") and not for
reasons related to "performance issues" or "cause" as described in Section 3.02,
ACH shall use commercially reasonable efforts to give Visteon at least ten
business days notice prior to the end of the calendar month. Upon receipt of
notice, Visteon shall attempt to place the Leased Employee in a comparable
position at Visteon. The Leased Employee will remain under lease until the
earlier of (i) the date such
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employee is placed at Visteon or (ii) thirty (30) days following the date of the
notice of termination to the employee, provided the termination shall occur no
later than the end of the month following the month during which the notice of
lease discontinuance occurs. ACH shall remain responsible for the lease fees for
such time period. At ACH discretion, it may retain the services of the Leased
Employee at ACH for such time period or may dismiss such Leased Employee. In any
event, the Leased Employee shall not return to Visteon unless to report to work
at a comparable Visteon position. In the event of a sale of a facility or other
extraordinary event, the Parties may mutually agree to terminate the lease of a
group of Leased Employees prior to the end of a month.
Section 2.05. Buyer Employment. (a) Visteon will be responsible for
transitioning Leased Employees to any buyer of all or any part of the Business
under terms mutually agreed by Visteon, the buyer and ACH. Visteon shall
cooperate with ACH and buyer to support and facilitate such transfers and
promptly shall provide any information reasonably required by Ford or a buyer in
the conduct of buyer's due diligence in connection with such transaction
pursuant to the terms of the Master Services Agreement dated as of even date
herewith between the Parties and subject to any confidentiality provisions.
Visteon shall not impose any confidentiality obligations on a Leased Employee
who is transferred to a buyer that are greater than the obligations the Leased
Employee had as a Visteon Salaried Employee and any such confidentiality
obligations shall be no greater than those imposed on a Leased Employee to ACH.
Any Leased Employee who transfers to a buyer shall be removed from the Employee
Census effective on the date of transfer to buyer and all future lease fees with
respect thereto shall cease. At buyer's request, Visteon shall lease the Leased
Employees affected by the sale to the buyer for a period not to exceed six
months from the sale date, at the same cost as such employees had been leased to
ACH.
(b) In the event of a sale or transfer of all or any part of the Business
to a buyer, and a transfer of Leased Employees to such buyer in accordance with
(a) above, Visteon shall make any appropriate arrangements concerning HR
services as is determined by ACH, Visteon and a buyer for up to twenty-four (24)
months as provided under the terms of the Master Services Agreement. Visteon
shall provide such HR services to a buyer at the following rates:
TERM PRICE
---- -----
9 months post-sale Cost + 5%
10-15 months post-sale Cost + 8%
16 months and beyond post-sale Cost + 12%
Section 2.06. Terminations. (a) If a Leased Employee's services are no
longer required pursuant to Section 2.04 above, and Visteon terminates such
employee because no comparable job is available at Visteon, Visteon shall
terminate the Leased Employee under the terms of the
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VSP as applicable to Leased Employees and as in effect as of the date hereof. A
Leased Employee who declines a comparable job at Visteon or a buyer shall not be
eligible for benefits under the VSP. Visteon and ACH shall mutually agree on the
definition of "comparable job". During the Lease Period, Visteon shall make no
change in the terms of the VSP that reduces the schedule of separation benefits,
duration of welfare benefit continuation or continuation of outplacement
assistance as applicable to Leased Employees as of the date hereof. Any waiver
and release obtained from a Leased Employee in connection with the VSP shall
include as released parties ACH, Ford and their affiliates, as well as present
and former officers, directors, employees and agents of each of them. Visteon
shall not terminate a Leased Employee under the terms of the VSP if such Leased
Employee is being terminated "for cause" or for failure to achieve acceptable
performance under the Visteon Performance Improvement Program ("PIP"), as
described in Section 3.02 (b). Visteon shall be reimbursed for costs under the
VSP only to the extent provided in the Reimbursement Agreement dated as of even
date herewith among Ford and Visteon and the Escrow Agreement dated as of even
date herewith between Ford, Visteon and Deutsche Bank Trust Company Americas. No
reimbursement for VSP costs shall be allowable under Article 4 hereof.
(b) Visteon shall be responsible for complying with any applicable Worker
Adjustment and Retraining Notification ("WARN") Act and any other legal
requirements in connection with a termination of a Leased Employee, provided
that Visteon receives notice from ACH sufficiently in advance to permit such
compliance, including notification requirements. If Visteon does not receive
sufficient notice from ACH, ACH shall be responsible for all costs of compliance
with WARN or any similar law, including cost of any period of continued
employment or pay in lieu of notice.
Section 2.07. Baseline. The sum of the number of Visteon Salaried Employees
who (i) are initially leased to ACH as of October 1, 2005 under this Agreement;
(ii) have been identified as TBD positions under the Employee Roster delivered
to ACH pursuant to Section 5.06 of the Contribution Agreement; and (iii) are
leased under the lease agreement dated as of even date herewith between Visteon
and Ford concerning the Rawsonville and Sterling Visteon Salaried Employees
("FORD LEASE AGREEMENT") (the lease transaction being subject to adoption of
competitive operating agreements at the plants), shall establish a baseline
("BASELINE"). In the event of attrition, Visteon shall replace employees on a
one for one basis up to the Baseline, in accordance with the terms of Section
2.02. The Baseline shall be adjusted as follows:
A. In the event of a corporate transaction involving (i) the sale of all
or any part of the Business; (ii) a transfer of any part of the
Business to Ford (i.e., Rawsonville/Sterling); or (iii) closure of all
or any part of the Business, where Leased Employees are either
transferred to Ford, a buyer or are terminated by Visteon, the
Baseline shall be reduced by the number of the Leased Employees who
are transferred or terminated in connection with such transaction.
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B. In the event a Leased Employee receives a VSP benefit and is not
otherwise part of a corporate transaction described in (A) above, the
baseline will be reduced by one.
The Baseline so reduced shall be known as the "ADJUSTED BASELINE". Visteon shall
not be obligated to fill ACH requisitions for replacement employees under this
Agreement through new Leased Employees in excess of the lesser of the Baseline
or Adjusted Baseline, as applicable.
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ARTICLE 3
EMPLOYER MATTERS
Section 3.01. Employer Definition. Visteon shall be the employer of the
Leased Employees and ACH shall not be considered the employer. Visteon will
instruct Leased Employees while at ACH facilities (i) to conform to ACH policies
and applicable law regarding safety and health, and personal and professional
conduct (including wearing an identification badge or personal protective
equipment and adhering to plant regulations and general safety practices or
procedures) generally applicable to such facilities, which policies, procedures,
rules and regulations ACH will provide as soon as practicable after the date
hereof, and as soon as practicable upon any modification, termination or
adoption of any such policy, procedure, rule or regulation; and (ii) to
otherwise conduct themselves in a lawful and businesslike manner. Leased
Employees also shall be subject at all times to Visteon's policies and
procedures. During the Lease Period, Visteon shall retain responsibility for all
payments and benefits due to the Leased Employees in connection with their work
relating to the Business, including but not limited to:
(i) the payment of Leased Employees' base salary or other components of pay
(less any applicable withholding or other taxes or any amounts deducted
from such wages pursuant to normal payroll practices of Visteon);
(ii) the provision of employee benefits applicable to Leased Employees;
(iii) payment of all federal, state, or local taxes withheld or otherwise
required to be paid with respect thereto, and
(iv) the liability for statutory benefits, including workers' compensation.
Section 3.02. Employer Rights. (a) Visteon shall retain all employer
rights, except as specifically provided below, including the right to terminate
Leased Employees, after notice to ACH. Visteon shall have the right to change
the salary and job classification of the Leased Employees upon reasonable notice
to ACH. Although Visteon shall remain responsible for performance management and
personnel development, ACH and its management shall have the right to assign to,
and structure work for, Leased Employees. Leased Employees shall administer
Visteon's human resources management policies and practices, such as performance
reviews, compensation planning, discipline, and personnel development policies,
and other Visteon policies, procedures, rules and regulations applicable to the
Leased Employees, and ACH shall permit the Leased Employees to conduct such
activities. Visteon may request ACH to provide information or documents with
respect to the Leased Employees' job performance and other matters, and ACH
shall cooperate with Visteon in providing such information or documents.
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(b) In the event that ACH has a concern regarding a Leased Employee during
the Lease Period, including but not limited to a concern regarding a Leased
Employee's performance or conduct, ACH shall provide written notice of its
concern to Visteon and such notice shall identify specifically the nature of
ACH's concern. Upon receipt of such notice, Visteon shall implement a PIP in
accordance with its policies. If the identified concern is not cured to the
satisfaction of ACH by the end of the PIP, ACH shall have the right to notify
Visteon in writing that the Leased Employee is to be returned to Visteon and
removed from the Employee Census effective at the end of the month immediately
following the end of the PIP. If a Leased Employee commits an offense which
would justify a "for cause" termination under Visteon's personnel policies, as
determined by Visteon, such employee shall be immediately escorted from the
worksite and removed from the Employee Census. ACH's obligation to reimburse
Visteon for any such employee removed from the Employee Census shall terminate
on the last day worked for ACH.
Section 3.03. Management of Hourly Employees. Pursuant to a Ford Hourly
Employee Assignment Agreement dated as of even date herewith between Ford Motor
Company and ACH, ACH intends to lease certain Ford hourly employees represented
by the International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW and its affiliated locals (collectively,
"UAW") who are covered under the terms and conditions of the Ford-UAW Collective
Bargaining Agreement dated as of September 15, 2003 between Ford and the UAW and
various local agreement by and between Ford and the UAW, and any successor
agreements ("FORD-UAW CBA") ("FORD HOURLY EMPLOYEES"). Pursuant to a Visteon
Hourly Employee Lease Agreement dated as of even date herewith between Visteon
and ACH, ACH intends to lease certain Visteon hourly employees represented by
the UAW who are covered under the terms and conditions of the (i) Master
Visteon-UAW Collective Bargaining Agreement dated June 29, 2000 and the
Supplemental Agreement dated as of May 4, 2004 and extensions or successor
agreements by and between Visteon and the UAW (collectively, "MASTER VISTEON
CBA") ("VISTEON HOURLY SUPPLEMENTAL AGREEMENT EMPLOYEES") or (ii) the UAW Local
#1216-Visteon Corporation Regional Assembly and Manufacturing LLC, Bellevue
Plant, Labor Agreement ("BELLEVUE CBA") ("BELLEVUE HOURLY EMPLOYEES").
The Leased Employees who are engaged in hourly supervision have authority
to exercise day to day supervision over the Ford Hourly Employees, the Visteon
Hourly Supplemental Agreement Employees and the Bellevue Hourly Employees
(collectively, "HOURLY EMPLOYEES") in accordance with the terms of the Ford-UAW
CBA, Master Visteon CBA, and Bellevue CBA, respectively. In the event that any
employment concern arises in connection with administration of the applicable
CBA, the Leased Employee shall consult with ACH, and Visteon or Ford, as
applicable, and shall resolve the concern consistent with Visteon's or Ford's
application of the applicable CBA to their general hourly populations, if any.
Section 3.04. Employer Representations. Visteon represents and warrants
that as of the date a Visteon Salaried Employee becomes a Leased Employee, (i)
the Leased Employee shall be paid by Visteon on a salaried basis; (ii) shall not
be subject to any collective bargaining
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agreement or have elected to be represented by a collective bargaining
representative unless otherwise disclosed in Section 3.07(a)(v) of the
Contribution Agreement dated as of September 12, 2005 between Visteon and ACH
Holdings, Inc. and (iii) shall be subject to Visteon's annual compensation
planning process as set forth in Visteon's policies and procedures.
Section 3.05. ACH Confidentiality Agreement. A Leased Employee shall be
required to execute the ACH Leased Employee Confidentiality Agreement attached
hereto as Schedule 3.05 ("CONFIDENTIALITY AGREEMENT"). ACH shall not require a
Leased Employee to divulge Visteon's confidential information to ACH except to
the extent that any confidential information was otherwise acquired by ACH in
connection with the transactions. Visteon will use commercially reasonable
efforts to require Leased Employees to comply with the terms of the
Confidentiality Agreement. Visteon shall not use confidential information of
either ACH or Ford that is provided by a Leased Employee in breach of the
Confidentiality Agreement.
Section 3.06. Payroll and Related Services. During the Lease Period,
Visteon shall provide payroll processing services for its Leased Employees
comparable to such services for its salaried employees other than Leased
Employees. Upon reasonable request or as needed, Visteon will provide assurances
that all proper payments and reporting requirements have been made.
Section 3.07. Employee Benefit Plans. (a) During the Lease Period, Visteon
shall provide benefits to the Leased Employees under any Visteon employee
benefit plan, as such term is defined in Section 3(3) of the Employment
Retirement Income Security Act of 1974 ("ERISA") ("EMPLOYEE PLANS") and which
are intended to be qualified under Section 401(a) of the Internal Revenue Code
of 1986, as amended, ("QUALIFIED PLANS") that are the same as provided to other
Visteon salaried employees.
(b) During the Lease Period, Visteon shall maintain the level of benefits
under Employee Plans and any other fringe benefit plans and arrangements of
Visteon for Leased Employees that are in effect as of the date hereof, unless
otherwise agreed by ACH. Visteon shall give ACH at least ninety days (90), where
practicable, but in no event less than thirty (30) days (one hundred eighty
(180) days in the case of benefits offered through the Flexible Benefits Plan of
Visteon Corporation) prior written notice of any proposed change in Visteon's
Employee Plans or other employee arrangements applicable to Leased Employees and
Visteon shall consult with ACH about such changes. Any change must be consistent
with any applicable collective bargaining agreement. ACH shall inform Visteon
whether or not it will consent to such changes within thirty (30) days of
receipt of notice of the proposed change from Visteon. In the event ACH consents
to any such change, then the change shall be applicable to the Leased Employees
as well as to other salaried employees of Visteon. Either prior to or after the
proposed change in Employee Plans or arrangements takes effect, ACH may request
that Visteon adopt and administer a special retention benefit in the sole
discretion of ACH which benefit may take the form of cash-based retention
incentives and/or non-cash benefits. Visteon shall advise ACH of any incremental
benefit administration costs that would be charged to ACH in connection with a
non-cash benefit. In the event ACH requests the form be non-cash benefits,
Visteon shall have the right to reject such request if it would be
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administratively burdensome or not permitted by law. The cost of such special
retention benefits shall be included in the direct wage and benefit costs
reimbursed by ACH under Section 4.01 below, and any incremental benefit
administration costs associated with a non-cash benefit shall be borne by ACH.
For avoidance of doubt, Visteon shall retain the right to modify, suspend or
terminate any Employee Plans and any other fringe benefit plans and arrangements
of Visteon applicable to other Visteon salaried employees who are not Leased
Employees.
(c) Except as provided below, for performance periods commencing 2006 and
beyond, during the Lease Period Visteon shall make no change in the incentive
compensation plans applicable to Leased Employees that reduces the target
incentive opportunities of such plans as of the date hereof. Prior to the date
hereof, Visteon and Ford implemented a process by which Visteon would review
with, and seek to obtain approval of, (i) amended incentive compensation plan
terms for transfers of Leased Employees to buyers and (ii) the right of ACH to
request adjustments to any performance metrics within such plan to be relevant
to ACH's Business rather than Visteon's remaining business, by the Visteon
Organization and Compensation Committee ("COMPENSATION COMMITTEE"). If the
Compensation Committee subsequently fails to approve the proposal described
above, any arrangements under this Agreement concerning reimbursement for
Visteon long term incentive programs shall be suspended pending a final
resolution. Visteon shall implement any mutually agreed changes as soon as
practicable after the date hereof at a mutually agreed date, subject to
Compensation Committee approval, if applicable.
(d) Leased Employees shall be ineligible to participate in any employee
benefit plan, fringe benefit program or other benefit arrangement sponsored by
ACH or Ford, except (i) as otherwise may be provided in the Amended and Restated
Employee Transition Agreement between Ford and Visteon dated as of April 1, 2000
and restated as of December 19, 2003, and as amended by Amendment Number One to
Amended and Restated Employee Transition Agreement dated effective as of
December 19, 2003, and as further amended by Amendment Number Two to Amended
and Restated Employee Transition Agreement dated as of even date herewith.
("EMPLOYEE TRANSITION AGREEMENT") or (ii) as ACH, Ford and Visteon may mutually
agree in writing.
(e) Requests for leave, reasonable accommodation and other benefits
provided by Visteon policies or by federal, state or local law will be
coordinated by ACH and Visteon.
(f) During the Lease Period, Visteon shall maintain, administer and manage
all employee benefit and fringe benefit plans and arrangements offered to the
Leased Employees, except as provided in the paragraph immediately above.
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ARTICLE 4
REIMBURSEMENT
Section 4.01. Direct Wage and Benefit Costs. Visteon shall be reimbursed
for the direct wage and benefit costs for the Leased Employees. For purposes of
this Section 4.01, reimbursements for "direct wage and benefit costs" shall
include:
(i) The base monthly salary, and any other type of cash compensation paid by
Visteon to the Leased Employees for work performed during the Lease Period,
such as overtime, moving allowance, vehicle allowances, and any other cash
compensation not included in the Standard Monthly Group Fringe Cost (as
defined below), subject to ACH prior written approval of the annual
compensation allocations including the annual market increases, special
market increases and movement in range;
(ii) A per-employee Standard Monthly Group Fringe Cost according to the rate
schedules set forth on Schedule 4.01(ii) attached hereto. The rate schedule
shall be reviewed monthly by ACH. Visteon may change the rate schedule
periodically to reflect changes in costs and plan benefits but no more than
four times per any calendar year commencing in 2006, subject to ACH prior
written approval, which approval shall not be unreasonably withheld. The
Standard Monthly Group Fringe Cost shall not include any fees that are to
be reimbursed to Visteon under the Master Services Agreement for such
expenses;
(iii) Prorata expense for annual and long-term incentives associated with the
Leased Employees, assessed on a monthly basis, based on the allocation of
responsibility set forth in Schedule 4.01(iii);
(iv) A per-employee Occupancy Charge at the rate of Seven Thousand Five Hundred
Dollars ($7,500) per year, assessed on a monthly basis commencing April 1,
2006, but only with respect to a Leased Employee who continues to occupy
Visteon's owned or leased facilities and only to the extent ACH does not
otherwise reimburse Visteon for such expense through any other means;
(v) Expenses incurred by Visteon with respect to each Leased Employee which is
not included in (i) through (iv) above that arise as a result of the Leased
Employee's work for ACH, such as reserves for any workers' compensation
claims arising out of a work accident while the Leased Employee was
performing work for ACH during the Lease Period;
(vi) Reasonable and necessary travel and business related expenses incurred by
Visteon in furtherance of ACH Business and paid or reimbursed to a Leased
Employee by Visteon as authorized by Visteon's standard travel and business
expense reimbursement policy. Reimbursement under this subsection shall not
include any fees that are to be reimbursed to Visteon under the Master
Services Agreement for such expenses; and
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(vii) Any taxes incurred or paid by Visteon with respect to the Leased Employees
not otherwise covered under Sections (i) through (v) above, including
employer payroll taxes, the Michigan single business tax, and any excise,
sales, use, gross receipts, value added or other similar transaction taxes
that may be levied by any domestic or foreign government related to the
charges or services rendered pursuant to this Agreement; provided, however,
that Visteon shall use commercially reasonable efforts to mitigate any
applicable tax, including reasonable cooperation with ACH or Ford in
connection with such mitigation.
Section 4.02. Annual Rate Setting. Except as provided below, Visteon and
ACH shall meet sixty (60) days prior to the end of the calendar year, or at a
mutually agreed annual time period that is consistent with regular annual fringe
cost changes, for the purpose of determining (i) the Standard Monthly Group
Fringe Cost set forth in Section 4.01(ii) above; and (ii) the Occupancy Charge
set forth in Section 4.01(iv), each applicable for the following twelve month
period. If the Parties are unable to agree on the per-employee rate for the
Standard Monthly Group Fringe Cost set forth in Section 4.01(ii) above, the rate
as determined by Visteon shall be in effect and applied to the most current
Employee Census until the new rate is agreed and any adjustment shall be
retroactively effective as of the beginning of the twelve month period. If the
Parties are unable to agree on the per-employee Occupancy Charge set forth in
Section 4.01(iv) above, the immediately prior rate shall remain in effect and
applied to the most current monthly Employee Census until the new rate is agreed
and the new rate shall be retroactively effective as of the beginning of the
twelve month period. If either of the rates is not agreed prior to the beginning
of the applicable periods, the Parties shall continue to diligently resolve the
rate differences in a timely manner.
Section 4.03. Reconciliation. Within a thirty (30) day period subsequent to
the end of the calendar year, Visteon shall provide ACH with a statement
indicating the Actual Group Monthly Fringe Cost for the year for the Leased
Employees and the amount that was billed to ACH pursuant to Section 4.01(ii).
For purposes hereof, "Actual Group Monthly Fringe Cost" for the year equals the
actual payments made to include year end accruals, plus or minus the changes in
reserves. ACH or its representatives shall have the right to verify the
statement and Visteon promptly shall make available to ACH or its
representatives all supporting documentation. After ACH approves the statement,
Visteon shall make any appropriate adjustment (credit or debit) in the next
billing cycle. Notwithstanding the above, any adjustments with respect to
pension or other post employment benefits shall be made in accordance with
Schedule 4.01(ii) Salaried Fringe Expense Definitions, "Pension and OPEB Budget
and Adjustment".
Section 4.04. Payment Schedule/Payment. Payments due hereunder shall be
paid according to the following schedule:
(i) Visteon shall provide ACH with an invoice for Section 4.01(i) salary and
other cash compensation and Section 4.01(vii) statutory fees invoice two
business days prior to the applicable pay date; and
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(ii) Section 4.01(ii) Standard Monthly Group Fringe Cost, Section 4.01(iii)
Incentive Compensation Fees, Section 4.01(iv) Occupancy Charge; Section
4.01 (v) Other Expenses and Section 4.01 (vi) Travel and Business expenses
shall be invoiced five business days prior to the end of the month.
Visteon shall render an invoice to ACH in such form and containing such
detail as ACH shall reasonably require, for the amounts described above. The
total due on the invoice shall be paid to Visteon on (i) the second business day
after receipt of the invoice with respect to Section 4.04(i) and (ii) the last
business day of the month with respect to Section 4.04 (ii) provided, however
that reimbursement with respect to post retirement health and life benefits for
Group I and II Employees (as defined in the Employee Transition Agreement) who
are Leased Employees shall not be reimbursed to Visteon but shall be credited by
Ford to the Salaried Employee OPEB Payment Notional Account under the Employee
Transition Agreement as more fully described under the Employee Transition
Agreement. Payments may be made by wire transfer or other means reasonably
acceptable to Visteon. ACH or its representatives shall have a right to audit
the invoices and related records of Visteon upon reasonable notice during normal
business hours, at a place mutually agreed by the Parties.
Section 4.05. Workers' Compensation and Unemployment Insurance. Visteon
shall continue to provide Workers' Compensation and Unemployment Compensation
coverage for all of the Leased Employees at all times during the term of this
Agreement.
Section 4.06. Extended Term Rate. In the event that ACH requests Visteon to
extend the term of this Agreement until December 31, 2010, ACH shall reimburse
Visteon on the same basis as set forth in Section 4.01 through Section 4.04;
provided, however, that with respect to the Extended Term, in addition to the
types of reimbursable expenses set forth in Section 4.01, Visteon shall be
reimbursed monthly for continued personnel and benefits administration services
with respect to the Leased Employees ("HR SERVICES") at five percent (5%) of the
reimbursable expenses set forth in Section 4.01, excluding subsection (vii), of
the Leased Employees who are leased at that time. Except as set forth above with
respect to cost, Visteon shall provide the HR Services to ACH under
substantially the same terms and conditions as such HR Services were provided
under the Master Services Agreement.
Section 4.07. Pension Adjustment. ACH shall reimburse Visteon for the
effect on the projected benefit obligation, as defined in SFAS No. 87, of the
liabilities related to Group I and II Leased Employees under the Ford General
Retirement Plan and any Leased Employee under the Visteon Pension Plan for any
Leased Employee average merit salary increase which exceeds the average merit
increase applicable to Visteon salaried employees by one-half percent in any
given year, provided ACH shall receive credit toward the lease fees otherwise
owed hereunder if the Leased Employee average merit increase is less than the
average Visteon salaried employees merit increase by one-half percent in any
given year using the same methodology as provided under Exhibit Y to the
Employee Transition Agreement. Notwithstanding the above, Visteon shall not be
reimbursed, or ACH credited, in a manner that would result in either of the
Parties being given duplicative reimbursement or credit arising from the same
event.
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ARTICLE 5
WORK ENVIRONMENT
Section 5.01. Compliance With All Health and Safety Laws. The Parties shall
comply with all applicable, national, federal, state and local health and safety
laws, regulations, ordinances, directives, and rules for Leased Employees
working on their respective premises.
Section 5.02. Compliance with Employment Laws. Each of the Parties shall
comply with all applicable national, federal, state and local employment laws,
including, but not limited to, wage and hour, overtime, discrimination laws,
and/or local ordinances with respect to its employees.
ARTICLE 6
INTELLECTUAL PROPERTY ASSIGNMENT
Section 6.01. Assignment. Leased Employees are employees of Visteon or a
Subsidiary thereof. As a result, all intellectual property rights in inventions,
discoveries or improvements made, conceived, developed or first reduced to
practice, and in original and derivative works of authorship created by each of
them, during the period of their employment with Visteon and that relate to any
matter, thing, process or method of manufacture connected in any way with
Visteon's or its Subsidiary's business, are the property of Visteon under the
terms of their employment agreements or by law. Under this Agreement, Visteon
agrees to assign or cause to be assigned to ACH all right, title and interest in
and to such inventions, discoveries, improvements, and original and derivative
works of authorship created, made, conceived, developed or first reduced to
practice by any of the Leased Employees, during the term each Leased Employee is
leased to ACH . Such assignment shall not preempt, supersede or otherwise
interfere with Visteon practicing rights received under license from ACH in
accordance with other agreements between the Parties. Visteon further agrees to
execute or cause to be executed all assignment and other transfer documents as
may be necessary to cause the above transfers of intellectual property rights to
be legally formalized. All such documents shall be prepared by ACH at ACH's
expense, and provided to Visteon with at least thirty (30) days notice.
Section 6.02. Visteon's IP Warranty. Visteon warrants that it has the right
to make the assignment to ACH of intellectual property rights in the inventions
and works of authorship created by Leased Employees.
Section 6.03. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY.
(a) EXCEPT TO THE EXTENT OF THE WARRANTY MADE ABOVE, VISTEON MAKES NO OTHER
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED. BY WAY OF EXAMPLE BUT NOT OF
LIMITATION, VISTEON MAKES NO REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE. VISTEON SHALL IN NO EVENT BE LIABLE TO ACH,
ITS SUCCESSORS, OR A THIRD PARTY FOR ANY DAMAGES, WHETHER DIRECT OR
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INDIRECT, SPECIAL OR GENERAL, CONSEQUENTIAL OR INCIDENTAL, ARISING FROM ANY LOSS
CLAIMED AS A RESULT OF ACH'S USE OF THE INTELLECTUAL PROPERTY RIGHTS ASSIGNED
HEREUNDER.
(b) VISTEON MAKES NO WARRANTY OR REPRESENTATION THAT THE INTELLECTUAL
PROPERTY RIGHTS ASSIGNED HEREUNDER CAN BE USED FOR ANY PARTICULAR FUNCTION OR
THAT ACH HAS THE ABILITY TO USE THEM. VISTEON ASSUMES NO RESPONSIBILITY FOR THE
SAFETY, QUALITY, DESIGN, SPECIFICATIONS, COMPLETENESS, ACCURACY OR OTHER
CHARACTERISTICS OF THE PERFORMANCE, OUTPUT OR END PRODUCT RESULTING FROM THE USE
OF THE INTELLECTUAL PROPERTY RIGHTS ASSIGNED HEREUNDER.
(c) EXCEPT TO THE EXTENT OF THE WARRANTY PROVIDED ABOVE, NOTHING CONTAINED
HEREIN SHALL BE CONSTRUED AS CONFERRING BY IMPLICATION, ESTOPPEL OR OTHERWISE
THE INDEMNIFICATION OF ACH BY VISTEON AGAINST ANY CLAIM OF INFRINGEMENT OF OTHER
THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, WHETHER OR NOT THE EXERCISE OF ANY
RIGHT GRANTED HEREIN NECESSARILY EMPLOYS OR REQUIRES THE PRACTICE OF ANY SUCH
EXISTING OR SUBSEQUENTLY CREATED THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
ARTICLE 7
INDEMNITY
Section 7.01. ACH Indemnity. ACH shall indemnify Visteon and its affiliates
("VISTEON INDEMNITEES") against and agrees to hold it harmless from any and all
damage, loss, claim, liability and expense (including without limitation,
reasonable attorneys' fees and expenses in connection with any action, suit or
proceeding brought against any Visteon Indemnitee) incurred or suffered by any
Visteon Indemnitee arising out of (i) the breach of any agreement made by ACH
hereunder; (ii) any employment, payroll, benefit, workers compensation or other
claims of any kind of any current or former Ford employee leased by Ford to ACH
pursuant to the Ford Hourly Assignment Agreement dated as of even date herewith
or the Ford Salaried Employee Assignment Agreement dated as of even date
herewith or any agency employee retained directly by ACH, arising during the
period of time the Ford employee is or was leased to ACH or the agency employee
was retained directly by ACH; or (iii) any claim by any current or former Ford
employee (or their dependents or beneficiaries), to the Pension Benefit Guaranty
Corporation ("PBGC"), the Department of Labor ("DOL"), Internal Revenue Service
("IRS"), the Securities and Exchange Commission ("SEC") or comparable federal or
national agencies in the United States, arising out of or in connection with the
operation, administration, funding or termination of any of the employee benefit
plans applicable to the Ford employee that arise during the period of time the
Ford employee is or was leased to ACH.
Section 7.02. Visteon Indemnity. Visteon shall indemnify ACH, Ford and
their affiliates ("FORD INDEMNITEES") against and agrees to hold them harmless
from any and all
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damage, loss, claim, liability and expense (including without limitation,
reasonable attorneys' fees and expenses in connection with any action, suit or
proceeding brought against any Ford Indemnitee) incurred or suffered by any Ford
Indemnitee arising out of (i) breach of any agreement made by Visteon hereunder;
(ii) employment, payroll, benefit, workers compensation, or other claims of any
kind of any current or former Visteon Salaried Employee, including any current
or former Leased Employee, or any agency employee provided by Visteon to ACH
pursuant to this Agreement, regardless of when they arise; or (iii) any claim by
any current or former Visteon Salaried Employee including any current or former
Leased Employee (or their dependents or beneficiaries), to the PBGC, the DOL,
IRS, SEC or comparable federal or national agencies in the United States,
arising out of or in connection with the operation, administration, funding or
termination of any of the employee benefit plans applicable to the Visteon
Salaried Employees, including any current or former Leased Employee, that arise
prior to, during or after the Lease Period.
Section 7.03. Indemnification Procedures. With respect to a Party's
indemnity obligations hereunder with respect to third-party claims, the
following procedures shall apply:
(i) Promptly after receipt by any entity entitled to indemnification hereunder
of notice of the commencement or threatened commencement of any civil,
criminal, administrative, or investigative action or proceeding involving a
claim in respect of which the indemnitee will seek indemnification pursuant
to the terms and conditions herein, the indemnitee shall notify the
indemnitor of such claim in writing. No failure to so notify an indemnitor
shall relieve it of its obligations under this Agreement except to the
extent that it can demonstrate damages attributable to such failure. Within
fifteen (15) days following receipt of written notice from the indemnitee
relating to any claim, but no later than ten (10) days before the date on
which any response to a complaint or summons is due, the indemnitor shall
notify the indemnitee in writing if the indemnitor acknowledges its
responsibilities and obligations with respect to such indemnification and
elects to assume control of the defense and settlement of that claim (a
"NOTICE OF ELECTION").
(ii) If the indemnitor delivers a Notice of Election relating to any claim
within the required notice period, the indemnitor shall be entitled to have
sole control over the defense and all negotiations for the compromise or
settlement of such claim; provided that (i) the indemnitee shall be
entitled to participate in the defense of such claim and to employ counsel
at its own expense to assist in the handling of such claim, and (ii) the
indemnitor shall obtain the prior written approval of the indemnitee before
entering into any settlement of such claim or ceasing to defend against
such claim, unless the settlement provides for an unqualified release of
all claims against the indemnitee. The indemnitor shall not be required to
indemnify the indemnitee for any amount paid or payable by the indemnitee
in the settlement of any claim for which the indemnitor has delivered a
timely Notice of Election if such amount was agreed to without the written
consent of the indemnitor.
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(iii) If the indemnitor does not deliver a Notice of Election relating to any
claim within the required notice period, the indemnitee shall have the
right to defend the claim in such manner as it may deem appropriate, at the
cost and expense of the indemnitor. The indemnitor shall promptly reimburse
the indemnitee for all such costs and expenses.
(iv) In a circumstance where the potential resolution of a legal or regulatory
matter by an indemnitor on behalf of an indemnitee under this Article would
involve equitable action on the part of the indemnitee, the indemnitor
shall have no authority to enter into any such resolution without the
written authority of the indemnitee. The indemnitor shall promptly notify
the indemnitee of the proposed resolution and request the indemnitee's
written authority to enter into the resolution, and provide such
information as requested by the indemnitee to facilitate indemnitee's
timely review. Indemnitee shall not withhold authority unreasonably, giving
full consideration to adverse business or labor relations impact on
indemnitee, provided, however, that indemnitor remains responsible for and
shall promptly reimburse indemnitee for all costs relating to indemnitee's
execution of the action.
Section 7.04. Survival of Indemnity Procedure. The provisions of this
Article shall survive the termination of this Agreement indefinitely or until
the latest date permitted by applicable law.
ARTICLE 8
MISCELLANEOUS
Section 8.01. Notices. All notices, requests and other communications to
any Party hereunder shall be in writing (including facsimile transmission and
electronic mail ("E-MAIL") transmission, so long as a receipt of such e-mail is
requested and received) and shall be given,
if to ACH, to:
Ford Motor Company
Office of the Secretary
One American Road
00xx Xxxxx Xxxxx Xxxxxxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
E-mail: xxxxxxx@xxxx.xxx
with a copy to:
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Ford Motor Company
Office of the General Counsel
One American Road
Room 000 Xxxxx Xxxxxxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
E-mail: xxxxxxxx@xxxx.xxx
if to Visteon, to:
Visteon Corporation
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx, General Counsel
Facsimile No.: (000) 000-0000
E-mail: xxxxxxxx@xxxxxxx.xxx
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
E-mail: Xxxxxxx.xxxxxxxx@xxxx.xxx
or such other address, facsimile number or e-mail as such Party may hereafter
specify for the purpose by notice to the other Parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5:00 p.m. in the place of
receipt and such day is a business day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
Section 8.02. Amendments and Waivers. Any provision of this Agreement may
be amended or waived if, but only if, such amendment or waiver is in writing and
is signed, in the case of an amendment, by each Party to this Agreement, or in
the case of a waiver, by the Party against whom the waiver is to be effective.
No failure or delay by any Party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
Section 8.03. Expenses. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the Party
incurring such cost or expense.
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Section 8.04. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the Parties hereto and their
respective successors and permitted assigns; provided that no Party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of each other Party hereto. Upon any such
permitted assignment, the references in this Agreement to ACH shall also apply
to any such assignee unless the context otherwise requires.
Section 8.05. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Michigan, without regard to
the conflicts of law rules of such state.
Section 8.06. Dispute Resolution. If a dispute arises between the Parties
relating to this Agreement, the following shall be the sole and exclusive
procedure for enforcing the terms hereof and for seeking relief, including but
not limited to damages, injunctive relief and specific performance:
(a) The Parties promptly shall hold a meeting of senior executives with
decision-making authority to attempt in good faith to negotiate a mutually
satisfactory resolution of the dispute; provided that no Party shall be under
any obligation whatsoever to reach, accept or agree to any such resolution;
provided further, that no such meeting shall be deemed to vitiate or reduce the
obligations and liabilities of the Parties or be deemed a waiver by a Party
hereto of any remedies to which such Party would otherwise be entitled.
(b) If the Parties are unable to negotiate a mutually satisfactory
resolution as provided above, then upon request by either Party, the matter
shall be submitted to binding arbitration before a sole arbitrator in accordance
with the CPR Rules, including discovery rules, for Non-Administered Arbitration.
Within five business days after the selection of the arbitrator, each Party
shall submit its requested relief to the other Party and to the arbitrator with
a view toward settling the matter prior to commencement of discovery. If no
settlement is reached, then discovery shall proceed. Upon the conclusion of
discovery, each Party shall again submit to the arbitrator its requested relief
(which may be modified from the initial submission) and the arbitrator shall
select only the entire requested relief submitted by one Party or the other, as
the arbitrator deems most appropriate. The arbitrator shall not select one
Party's requested relief as to certain claims or counterclaims and the other
Party's requested relief as to other claims or counterclaims. Rather, the
arbitrator must only select one or the other Party's entire requested relief on
all of the asserted claims and counterclaims, and the arbitrator will enter a
final ruling that adopts in whole such requested relief. The arbitrator will
limit his/her final ruling to selecting the entire requested relief he/she
considers the most appropriate from those submitted by the Parties.
(c) Arbitration shall take place in the City of Dearborn, Michigan unless
the Parties agree otherwise or the arbitrator selected by the Parties orders
otherwise. Punitive or exemplary damages shall not be awarded. This Section 8.06
is subject to the Federal Arbitration Act, 28 U.S.C.A. Section 1, et seq., or
comparable legislation in non-U.S. jurisdictions and judgment upon the award
rendered by the arbitrator may be entered by any court having jurisdiction.
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Section 8.07. Jurisdiction. Subject to Section 8.06, the Parties hereto
agree that any suit, action or proceeding seeking to enforce any provision of,
or based on any matter arising out of or in connection with, this Agreement or
the transactions contemplated hereby shall be brought in any federal court
sitting in Michigan or any Michigan State court sitting in the Xxxxx County or
Oakland County, Michigan, so long as one of such courts shall have subject
matter jurisdiction over such suit, action or proceeding, and that any cause of
action arising out of this Agreement shall be deemed to have arisen from a
transaction of business in the State of Michigan. Each of the Parties hereby
irrevocably consents to the jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding in any such court or that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. Process in
any such suit, action or proceeding may be served on any Party anywhere in the
world, whether within or without the jurisdiction of any such court.
Section 8.08. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 8.09. Counterparts; Effectiveness; Third Party Beneficiaries. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement shall become effective when each Party
hereto shall have received a counterpart hereof signed by all of the other
Parties hereto. Until and unless each Party has received a counterpart hereof
signed by the other Party hereto, this Agreement shall have no effect and no
Party shall have any right or obligation hereunder (whether by virtue of any
other oral or written agreement or other communication). No provision of this
Agreement is intended to confer any rights, benefits, remedies, obligations or
liabilities hereunder upon any Person other than the Parties hereto and their
respective successors and permitted assigns under Section 8.04.
Section 8.10. Entire Agreement. This Agreement, the Employee Transition
Agreement and the other documents executed in connection with this transaction
constitute the entire agreement between the Parties with respect to the subject
matter of this Agreement and supersede all prior agreements and understandings,
both oral and written, between the Parties with respect to the subject matter of
this Agreement, and the other transaction documents.
Section 8.11. Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any Party. Upon such a
determination, the Parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent
20
of the Parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated to
the fullest extent possible.
Section 8.12. Specific Performance. The Parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the Parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
or to enforce specifically the performance of the terms and provisions hereof in
the courts specified in Section 8.07.
[signatures appear on following page]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
VISTEON CORPORATION AUTOMOTIVE COMPONENTS HOLDINGS, LLC
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
--------------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Executive Vice President and Title: President
Chief Financial Officer
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