EXHIBIT 10.36
RESIGNATION AGREEMENT
This Resignation Agreement (the "Agreement") is entered into
by and between XXXXX X. XXX ("XXX"), and VISTEON CORPORATION (THE "COMPANY"), on
behalf of itself individually and any and all past and present parents,
affiliates and subsidiary corporations.
WHEREAS, Fox has been employed by the Company in the position
of Senior Vice President, General Counsel and Secretary; and
WHEREAS, Fox has notified the Company of her desire to resign
from employment with the Company, and Fox and the Company now have agreed upon
terms under which Fox will resign from regular employment with the Company
effective as of the close of business on March 31, 2005, and provide consulting
services to the Company for a period of time thereafter under a separate
Consulting Agreement executed simultaneously herewith (the "Consulting
Agreement"); and
WHEREAS, Fox and the Company (collectively the "Parties")
desire to confirm their agreement regarding the termination of Fox's employment
and resolve all matters that may exist between them as of the date of
termination of such employment;
NOW, THEREFORE, for and in consideration of the mutual
promises and covenants herein contained and for good and valuable consideration,
the sufficiency of which is hereby acknowledged, the Parties hereby agree as
follows:
1. TERMINATION OF PRIOR AGREEMENTS AND UNDERSTANDINGS. The
Parties agree that, except as specifically provided for herein, any prior
agreements and understandings between them, whether oral or written and of
whatever nature, are hereby canceled, terminated and superseded by this
Agreement and shall be of no further force or effect.
2. RESIGNATION FROM EMPLOYMENT. Fox hereby confirms her
resignation from regular employment with the Company including her positions as
Senior Vice President, General Counsel, Secretary, and any other positions with
the Company and all of its subsidiaries and affiliates, effective as of the
close of business March 31, 2005 (the "Termination Date").
3. COMPENSATION UPON TERMINATION OF EMPLOYMENT. Subject to and
in consideration of the terms and conditions hereof, the Company shall pay to
Fox a separation payment, less applicable tax withholdings, in the gross amount
of $1,360,000, on the later of April 15, 2005, or ten (10) days after her
execution and delivery of this Agreement (the "Separation Payment Date")
conditioned upon: (i) Fox not revoking this Agreement as provided for in
paragraph 12 below; and (ii) Fox's execution and delivery of another General
Release effective as of the Separation Payment Date, in a form substantially
identical to the General Release set forth in paragraph 4 below. In addition,
and subject to the same conditions as are applicable to the separation payment,
the
Company shall cause the vesting date of the 43,000 shares of restricted stock
granted to Fox under the Visteon 2000 Incentive Plan to be accelerated from June
28, 2005 to the Separation Payment Date, whereupon Fox shall be fully vested in
such 43,000 shares of restricted stock. The foregoing separation payment and
accelerated vesting of restricted stock shall be in lieu of any claims Fox may
have for any benefits under the Company's Long Term Incentive Plans for the
periods 2003-2005 and 2004-2006 or for any other incentive compensation or bonus
not heretofore paid to Fox (or, in the case of restricted stock, in which Fox
has not heretofore become fully vested), except for stock options previously
awarded to her, as to which Fox shall have such exercise rights as are provided
in the applicable stock option plan(s).
4. GENERAL RELEASE BY FOX.
(a) In consideration of this Agreement and the compensation
and other good and valuable consideration provided to Fox pursuant hereto, Fox
hereby irrevocably and unconditionally releases, waives and forever discharges
the Company and each of its past and present, direct and indirect parents,
subsidiaries and affiliates, affiliated persons, partnerships and corporations,
successors and assigns, and all of their respective past and present directors,
members, partners, officers, shareholders, consultants, agents, representatives,
attorneys, and employees, (collectively, the "Company Releasees"), individually
and collectively, from any and all actions, causes of action, claims, demands,
damages, rights, remedies and liabilities of whatsoever kind or character, in
law or equity, known or unknown, past or present, that she has ever had, may now
have, or may later assert against any of the Company Releasees, whether or not
arising out of or related to Fox's employment by or the performance of any
services to or on behalf of the Company or the termination of that employment
and those services from the beginning of time to the date of her execution of
this Agreement (hereinafter referred to as the "Claims"), including without
limitation: (i) any claims arising out of or related to any federal, state
and/or local labor, employment, anti-discrimination or civil rights laws,
including, without limitation, the Age Discrimination in Employment Act, Title
VII of the Civil Rights Law of 1964, the Employee Retirement Income Security
Act, and the American's with Disabilities Act, and (ii) any and all other claims
arising out of or related to any contract, any and all other federal, state or
local constitutions, statutes, rules or regulations, or under any common law
right of any kind whatsoever, including, without limitation, any of claims for
any kind of tortious conduct, promissory or equitable estoppel, breach of the
Company's policies, rules, regulations, handbooks or manuals, breach of express
or implied contract or covenants of good faith, quantum meruit, wrongful
discharge or dismissal, and failure to pay in whole or part any compensation,
bonus, incentive compensation, stock bonus or options, expense reimbursement,
severance pay or benefits of any kind whatsoever, including disability and
health care benefits, back pay, front pay or any compensatory, special or
consequential damages, punitive or liquidated damages, attorneys' fees, costs,
disbursements or expenses. Notwithstanding the foregoing, Fox's release herein
shall not affect her rights under the Company's Visteon Pension Plan, Visteon
Investment Plan, and Visteon Corporation Deferred Compensation Plan, her rights
to other compensation and benefits as expressly provided in this Agreement, her
rights to indemnification from the Company as provided in the Company's Bylaws
and applicable state law in respect of her service as an officer and
employee of the Company, and such coverage as she may be eligible for under the
Company's directors and officers liability insurance policies.
(b) To the fullest extent permitted by law, Fox agrees not
to lodge or assist anyone else in lodging any formal or informal complaint in
court, with any federal, state or local agency or any other forum, in any
jurisdiction, arising out of or related to the Claims. Fox hereby represents and
warrants that she has not brought any complaint, claim, charge, action or
proceeding against the Company or any of the Company Releasees in any
jurisdiction or forum, nor assisted or encouraged any other person or persons in
doing so. Fox further represents and warrants that she has not in the past and
will not in the future assign any Claims to any person, corporation or other
entity.
(c) Execution of this Agreement by Fox operates as a
complete bar and defense against any and all of the Claims against the Company
or the other Company Releasees. If Fox should hereafter make any of the Claims
in any charge, complaint, action, claim or proceeding against the Company or any
of the other Company Releasees, the Agreement may be raised as and shall
constitute a complete bar to any such charge, complaint, action, claim or
proceeding and the Company and/or the other Company Releasees shall be entitled
to and shall recover from Fox all costs incurred, including reasonable
attorneys' fees, in defending against any such charge, complaint, action, claim
or proceeding.
7. CONFIDENTIALITY.
(a) Fox agrees that she will not, directly or indirectly,
use or disclose, or permit or aid the use or disclosure, to any person, firm,
entity or corporation, of any non-public privileged, confidential or proprietary
business information, observations or data relating to the business, affairs,
customers, suppliers, business partners, plans, proposals, finances or financial
condition of the Company or any of the other Company Releasees which such
information Fox received as a consequence of her employment with the Company
("Confidential Information"), except (i) as is necessary and appropriate in
carrying out her duties as an employee through March 31, 2005, or in providing
services on behalf of the Company thereafter under the Consulting Agreement; or
(ii) in direct response to any subpoena or other legal process initiated against
or served upon Fox. In the event that disclosure is sought from Fox of
Confidential Information pursuant to any such subpoena or legal process, Fox
shall give the Company immediate written notice of such subpoena or legal
process in order to afford the Company an opportunity to evaluate its legal
rights and take such action as the Company considers to be appropriate to
protect the interests of the Company. The foregoing shall not be construed to
restrict or otherwise limit any obligations Fox may have under federal or state
statute or common law, or ethical rules governing the conduct of attorneys, to
preserve the confidentiality of nonpublic information relating to the Company
and of communications and other information protected under the attorney-client
and attorney work product privileges.
(b) Fox agrees that she will leave at the Company's
corporate headquarters, or deliver to the CEO's designee on or before the
Termination Date, all
property of the Company and other Company Releasees in whatever form retained
(e.g., written, electronic) including, but not limited to, originals and all
copies of all documents, memoranda, notes, papers, contracts, drafts, data,
records, reports, plans, proposals, computer tapes, printouts, software and
other information and property, except such property, documents and other
materials as Fox may be authorized by the CEO's designee to retain in her
possession, custody or control during the term of the Consulting Agreement, upon
the conclusion of which Fox shall deliver such remaining property, documents and
materials to the CEO's designee.
8. COOPERATION. Fox agrees to cooperate fully in all respects
with the Company in connection with any and all existing or future claims,
investigations, arbitrations, proceedings, or litigations which relate to
services or duties that Fox was responsible for performing for the Company. The
Company will reimburse Fox for any reasonable out-of-pocket expenses in
connection with any cooperation provided by Fox under this Agreement in
accordance with its normal policies, practices and procedures. In the event that
significant time is required for such cooperation after December 31, 2005, the
parties shall agree upon a reasonable, mutually acceptable hourly or per diem
rate to be paid for such time other than time devoted by Fox to preparing for or
giving testimony in any legal proceeding or governmental inquiry. For the
avoidance of doubt, nothing herein is intended to prevent or discourage Fox from
testifying truthfully in any proceeding or in connection with any regulatory
inquiry. This provision shall not be construed as requiring Fox to provide
anything other than truthful testimony if she is called to testify.
9. NON-SOLICITATION. Fox agrees that until January 1, 2007,
she shall not directly or indirectly (i) solicit, induce or attempt to induce
any employee of the Company or any subsidiary to leave the employ of the Company
or such subsidiary, or in any way interfere with the relationship between the
Company or any subsidiary and any employee thereof, or (ii) hire, or assist any
firm or other legal entity with which Fox becomes affiliated in hiring, any
person who was an employee of the Company or any subsidiary at any time during
Fox's employment, except with the Company's written consent.
10. MISCELLANEOUS PROVISIONS.
(a) This Agreement contains the entire agreement between
the Parties and supersedes any and all prior agreements, arrangements,
negotiations, discussions or understandings between or among any of the Parties
relating to the subject matter hereof. Neither the Company nor Fox are relying
upon any representations or promises made by either of them to the other
regarding this Agreement or the implications thereof beyond the written terms of
this Agreement.
(b) This Agreement may not be amended, modified, superseded
or waived, except by a written instrument executed by both parties hereto, or,
in the case of a waiver, by the party waiving compliance. The failure of either
party at any time or times to require performance of any provision hereof shall
in no manner affect the right at a later time to enforce the same. No waiver by
either party of the breach of any term or covenant contained in this Agreement
whether by conduct or otherwise, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing waiver of any
such breach, or a waiver of the breach of any other term or covenant contained
in this Agreement.
(c) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Michigan. If any provision
of this Agreement is hereafter construed to be invalid or unenforceable in any
respect, the same shall not affect the remaining provisions of this Agreement,
without regard to the invalid portion, and any such invalid provisions shall be
reformed and construed to the extent necessary to permit their enforceability so
as to reflect the intent of the parties hereto.
(d) This Agreement shall extend to, be binding upon, and
inure to the benefit of the Parties and their respective successors, heirs,
personal representatives, and assigns.
(e) This Agreement may be executed in any number of
counterparts each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement.
(f) This Agreement has been negotiated by the parties and
both parties agree that neither party shall contend in any possible future
dispute regarding its interpretation that any ambiguity should be interpreted
against the drafting party.
11. NOTICES. Any notices or requests under this Agreement
shall be in writing, addressed as follows:
Xxxxx X. Xxx
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
12. ACKNOWLEDGMENTS AND REVOCATION. In signing this Agreement,
Fox acknowledges that : (a) she has read and understands this Agreement,
including the full and final Release of all of Fox's claims set forth herein;
(b) this Agreement provides her with compensation beyond that to which she is
otherwise entitled as an employee terminating employment with the Company; (c)
she has entered into this Agreement voluntarily and of her own free will; (d)
she has been offered at least twenty-one (21) days to consider this Agreement
before signing same; (e) she has been advised by the Company to seek the advice
of her own counsel before signing this Agreement; and (f) she may revoke this
Agreement after she signs it, by delivering to the Company's CEO a written
revocation of same within seven (7) days of the date she signs the Agreement as
shown below, in which case this Agreement shall become null and void in its
entirety and of no further force or effect.
IN WITNESS WHEREOF, Fox and the Company herewith executed this
Resignation Agreement on the dates indicated below.
/s/ Xxxxx X. Xxx March 10, 2005
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XXXXX X. XXX Date
VISTEON CORPORATION
By: /s/ Xxxxxx X. Xxxxxx March 10, 2005
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Xxxxxx X. Xxxxxx, Date
S.V.P., Corporate Relations
