Exhibit 10.5
*** TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. 200.80(b)(4) AND 240.24b-2
PURCHASE AND SUPPLY AGREEMENT
REGARDING SALES OF COMPONENTS FROM AUTOMOTIVE COMPONENTS HOLDINGS, LLC TO
VISTEON CORPORATION
BETWEEN
AUTOMOTIVE COMPONENTS HOLDINGS, LLC (F/K/A VFH HOLDINGS, LLC)
AND
VISTEON CORPORATION
SELLER: AUTOMOTIVE COMPONENTS HOLDINGS, LLC
BUYER: VISTEON
September 30, 2005
PURCHASE AND SUPPLY AGREEMENT REGARDING SALES OF COMPONENTS FROM AUTOMOTIVE
COMPONENTS HOLDINGS, LLC TO VISTEON CORPORATION
This Purchase and Supply Agreement Regarding Sales of Components from Automotive
Components Holdings, LLC to Visteon Corporation ("AGREEMENT") dated as of
September 30, 2005 is entered into by and between Visteon Corporation, a
Delaware corporation ("VISTEON"), and Automotive Components Holdings, LLC (f/k/a
VFH Holdings, LLC) ("NEWCO"), a Delaware limited liability company. Each of
Newco and Visteon is herein referred to as a "PARTY" and collectively, the
"PARTIES."
RECITALS
A. Newco owns and operates manufacturing and assembly facilities in North
America that were formerly owned and operated by Visteon or its wholly-owned
subsidiaries ("NEWCO FACILITIES"). Newco Facilities supply motor-vehicle-related
parts, components and systems to Visteon's or its wholly-owned subsidiaries'
manufacturing and assembly facilities in North America ("VISTEON FACILITIES").
B. Except as described in Recital C, the purpose of this Agreement is to
describe supply obligations, pricing, and related matters for certain
motor-vehicle-related parts, components and systems that are manufactured by a
Newco Facility and supplied by such Newco Facility to a Visteon Facility. It
does not cover the sale of motor-vehicle-related parts, components and systems
by Visteon to Newco (which is addressed in the Purchase and Supply Agreement
Regarding Sales of Components from Visteon Corporation to Automotive Components
Holdings, LLC between Newco and Visteon dated as of the date of this Agreement).
References in this Agreement to motor-vehicle-related parts, components or
systems that are "manufactured by a Newco Facility and supplied by such Newco
Facility to a Visteon Facility" mean that such parts, components or systems are
manufactured by such Newco Facility and supplied by such Newco Facility
directly, or through a warehouse or shipping facility, to a Visteon Facility.
C. This Agreement does not cover motor-vehicle-related parts, components or
systems: (i) supplied by Newco to a Visteon facility that is not a facility of
Visteon Corporation or any of its wholly-owned subsidiaries in North America; or
(ii) which are Service Parts (as defined in Exhibit 5); in each case except to
the extent expressly set forth in EXHIBIT 4 or 5, as applicable. EXHIBIT 6 to
this Agreement lists (i) Visteon's Affiliates, including its wholly-owned
subsidiaries in North America, its Affiliates in North America which are not
wholly-owned subsidiaries, and its Affiliates outside of North America, and (ii)
Visteon Related Companies.
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement and intending to be legally bound, Visteon and Newco agree:
1. DEFINED TERMS
1.1 All terms with initial capitalization used herein shall have the following
definitions unless specifically stated otherwise. In this Agreement, except as
otherwise expressly provided or the context otherwise clearly requires, words in
the singular include the plural, and vice versa. The Recitals above are an
integral part of this Agreement.
"2003 PSA" means the Purchase and Supply Agreement between Visteon Corporation
and Ford Motor Company dated December 19, 2003.
"AFFILIATE" means, with respect to any Person, any other Person directly or
indirectly Controlling, Controlled by or under common Control with such first
Person; provided, that neither Ford, nor any of its Affiliates, shall be deemed
to be an Affiliate (or subsidiary) of Newco for the purposes of this Agreement
or any Existing Agreement, Purchase Order, Long Term Supply Agreement, Target
Agreement, Sourcing Agreement, or other agreement between Newco and Visteon for
the supply of Components from Newco to Visteon. For the purpose
of this definition, the term "Control" (including, with correlative meanings,
the terms "Controlling," "Controlled by" and "under common Control with"), as
used with respect to any Person, means having the right to elect a majority of
the board of directors or other comparable body responsible for management and
direction of such Person, or otherwise having, directly or indirectly, the power
to direct or cause the direction of the management and policies of such Person,
by contract or by virtue of share ownership.
"BUSINESS DAY" means a day, other than Saturday, Sunday or other day on which
commercial banks in Detroit, Michigan are authorized or required by law to
close.
"COMPONENTS" means motor-vehicle-related parts, components or systems
manufactured by a Newco Facility and supplied by such Newco Facility (or, in
regard to Existing Business - Future Model, to be manufactured by a Newco
Facility and supplied by such Newco Facility) to a Visteon Facility.
Notwithstanding anything to the contrary in the foregoing sentence, parts,
components and systems that are supplied by Newco to Visteon Affiliates (other
than wholly-owned subsidiaries of Visteon in North America), parts, components
and systems supplied by Visteon Related Companies, and Service Parts are not
considered "Components".
"CONTRIBUTION AGREEMENT" means Contribution Agreement between Visteon and
Automotive Components Holdings, Inc. (f/k/a VFH Holdings, Inc.) dated September
12, 2005.
"CONFIDENTIAL INFORMATION" has the meaning specified in Section 11.1.
"DAMAGES" means any and all obligations, liabilities, damages, penalties,
deficiencies, losses, judgments, costs and expenses (including, but not limited
to, costs and expenses incurred in connection with performing obligations,
interest, bonding and appellate costs and reasonable attorneys', accountants',
engineers' and investigators' fees and disbursements), in each case, after the
application of any and all amounts recovered under insurance contracts or
similar arrangements and from third parties by the person claiming indemnity.
"DEFAULTING PARTY" has the meaning specified in Section 9.1.
"DESIGN CHANGE" means any change to the physical Component, its performance, or
its interface with other parts or systems that results in a change to the part
number.
"EVENT OF DEFAULT" has the meaning specified in Section 9.1.
"EXISTING AGREEMENTS" means the Purchase Orders, and Long Term Supply Agreements
(if any), covering Existing Business, as described in Section 2.3 or 2.4.
"EXISTING BUSINESS" means the Components that are Existing Business in
Production or Existing Business - Future Model.
In the event that the vehicle or power-train program of Ford (or of another OEM
Customer of Visteon or its customer), in regard to which Visteon is purchasing
(or intends to purchase) Components which are Existing Business, is or will be
subject to a major refreshening or will be replaced by, or will become, a new
program, as determined by Ford as described below, or as determined by such
other OEM Customer in accordance with its then-current processes and policies,
respectively, such Components ("AFFECTED COMPONENTS") will no longer be
considered to be Existing Business for the purposes of this Agreement as of the
date that Visteon begins purchasing the motor-vehicle-related parts, components,
or systems for the refreshened or new program which replace the Affected
Components; provided, however, that:
(i) the motor-vehicle-related parts, components, or systems for the
refreshened or new program ("REPLACEMENT END-ITEM") which replace the
parts, components, or systems supplied by Visteon to Ford (or to the
applicable other OEM Customer of Visteon) into which such Affected
Components purchased by
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Visteon from Newco are incorporated are (or were prior to the date of this
Agreement) put up for award by Ford or such other OEM Customer of Visteon;
and,
(ii) the motor-vehicle-related parts, components, or systems for the
refreshened or new program which replace the Affected Components are put up
for award by Visteon. For components put up for award prior to this
agreement, the status of such components will be evaluated during
reconciliation of Exhibit 2.
For the purposes of this definition: "put up for award" means the issuance of a
Request for Quote by Ford or Visteon for the Replacement End-Item or such
motor-vehicle-related parts, components, or systems for the refreshened or new
program which replace the Affected Components, respectively; and, "Requet for
Quote" means a request issued by Ford or Visteon to one or more suppliers to
provide a quotation for the supply of the Replacement End-Item or such
motor-vehicle-related parts, components, or systems for the refreshened or new
program which replace the Affected Components, respectively. "Put up for award"
does not mean quoting design changes to a carryover component for a new program
or following the change control process.
Nothing in this Agreement or in any Purchase Order, Long Term Supply Agreement,
Sourcing Agreement, or Target Agreement prohibits Visteon from sourcing such
motor-vehicle-related parts, components, or systems which replace the Affected
Components to a supplier of its choice, or from purchasing the same from such
supplier; provided that Visteon follows the proper approval procedures and
policies of Ford or such other OEM Customer (as applicable) for the replacement
part, component, or system, and North American Sourcing Council approval is
obtained (if applicable).
For the purposes of the prior paragraph, a "major refreshening" or "new program"
means, in regard to a Ford vehicle or power-train program, a change to a vehicle
or power-train program with a "S3" or higher designation, for a vehicle program,
or a "P3" or higher designation, for a power-train program, under the Ford
Product Development System (FPDS), or the equivalent designation in Ford's
Global Product Development System (GPDS) or any future product development
system of Ford replacing FPDS or GPDS (as applicable).
"EXISTING BUSINESS IN PRODUCTION" has the meaning specified in Section 2.1(a).
"EXISTING BUSINESS - FUTURE MODEL" has the meaning specified in Section 2.1(b).
"FORD" means Ford Motor Company, a Delaware corporation.
"FORD MASTER AGREEMENT WORKERS" means the Ford hourly employees who are
represented by the UAW under the Master Agreement and who have been assigned to
work at Ford or Newco plants.
"FORD VEHICLE" means a Ford, Lincoln, or Mercury-brand vehicle manufactured in
North America by Ford or one of its Affiliates.
"FORD-VEHICLE COMPONENTS" mean Components which are, or which are supplied for
incorporation into another part, component or system, for ultimate use in a Ford
Vehicle.
"GLOBAL TERMS" means Visteon's Global Terms For Production Parts and
Non-Production Goods and Services (VGT REV 4/03).
"LONG TERM SUPPLY AGREEMENT" means a multiple-year contract with a supplier
committing Visteon to procure and the supplier to supply goods or services for a
specified time period on specified terms.
"MASTER AGREEMENT" means the collective bargaining agreement and all supplements
thereto between Ford and the UAW dated September 15, 2003, as well as any
successor agreement (and supplements thereto) to such collective bargaining
agreement entered into prior to the expiration of this Agreement.
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"MASTER AGREEMENT PLANT" means a facility where some or all of the hourly
employees working there are represented by the UAW under the Master Agreement.
"NON-DEFAULTING PARTY" has the meaning specified in Section 9.1.
"NON-FORD COMPONENTS" mean Components which are, or which are supplied for
incorporation into another part, component or system, for ultimate use in a
vehicle other than a Ford Vehicle.
"NORTH AMERICA" means Canada, Mexico and the United States.
"NORTH AMERICAN SOURCING COUNCIL" means a Ford process to ensure that Ford
honors commitments to Ford Master Agreement Workers at Ford or Newco facilities
in the United States with respect to sourcing actions; to provide a framework
for avoiding labor disturbances and lost production; and to ensure that Ford
senior management concurs with sourcing decisions.
For the purposes of this Agreement, in determining whether the North American
Sourcing Council process was or is required to be followed, or its approval was
or is required, in regard to a particular action:
(i) taken prior to the date of this Agreement, the North American Sourcing
Council process and requirements in effect at the time the applicable
action was taken (including, without limitation, any applicable
requirements under the 2003 PSA) apply; and,
(ii) for actions taken on or after the date of this Agreement, the North
American Sourcing Council process will be required to be followed, and
its approval obtained, if one or more Ford Master Agreement Workers'
jobs would be impacted by such action.
"OEM CUSTOMER" means a Person in the business of manufacturing motor vehicles.
"PARTY" or "PARTIES" has the meaning specified in the opening paragraph of this
Agreement.
"PERSON" means an individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization or a governmental entity or any department, agency
or political subdivision thereof.
"PURCHASE ORDER" means, in regard to particular Components, the Purchase Order
or Long Term Supply Agreement between Visteon and Newco covering the Components
(as described in Section 2.3 or 2.4, in regard to Existing Business).
"SERVICE PARTS" is as defined in Exhibit 5.
"VISTEON - FORD PSA" means the Purchase and Supply Agreement Regarding Supply of
Components by Visteon Corporation to Ford Motor Company between Visteon and Ford
dated as of October 1, 2005.
"VISTEON RELATED COMPANY" is as defined in Exhibit 4.
1.2 Subject to Section 13.3, except in regard to the identification of the
Parties to this Agreement above or where the context clearly requires otherwise,
a reference in this Agreement to "Newco" includes Newco and its applicable
Affiliates, and to "Visteon" includes Visteon and its wholly-owned subsidiaries
in North America.
2. PURCHASE AND SUPPLY COMMITMENTS
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2.1 General. Subject to the terms and conditions of this Agreement, but
notwithstanding any term or condition of any Existing Agreement, Purchase Order,
Long Term Supply Agreement, Sourcing Agreement, or Target Agreement, Newco shall
supply to Visteon, and Visteon shall purchase from Newco, each of the following
Components during the term of this Agreement:
(a) "EXISTING BUSINESS IN PRODUCTION," which means all Components which, as
of May 1, 2005, were manufactured by a Newco Facility and supplied by such
Newco Facility to a Visteon Facility. Such Components are set forth in
EXHIBIT 1 to this Agreement.
(b) "EXISTING BUSINESS - FUTURE MODEL," which means all Components which,
as of May 1, 2005, were planned by Visteon to be manufactured by a Newco
Facility and supplied by such Newco Facility to a Visteon Facility (i)
pursuant to a reasonably developed and documented plan, and (ii) for supply
to, or for inclusion in another part, component or system to be supplied
to, Ford or another customer of Visteon that was sourced to Visteon
pursuant to a signed Sourcing Agreement with Pricing, Target Agreement, or
purchase order (in the case of Ford) or a written sourcing commitment with
pricing established or purchase order (in the case of another customer of
Visteon), in each case issued prior to May 1, 2005, but which were not
being manufactured and supplied as of May 1, 2005. Such Components are set
forth in EXHIBIT 2 to this Agreement.
Subject to Sections 2.1(c) and (d) below, Components which do not meet the
requirements set forth in Section 2.1(a) or (b) are not Existing Business,
except as Newco and Visteon specifically agree otherwise in writing. References
in this Section 2.1 to a "Newco Facility" refer, for the avoidance of doubt, to
facilities which were manufacturing or assembly facilities of Visteon or its
Affiliates in North America as of May 1, 2005, but were transferred to Newco.
Visteon warrants and represents to Newco that, to the best of its knowledge as
of the date of this Agreement, Exhibits 1 and 2 are accurate and complete.
(c) Without limiting any rights or remedies of either Party, and subject to, and
without limiting, Section 2.1(d) below:
(i) In the event that Components which should have been included in Exhibit
1 (as determined in accordance with Section 2.1(a)) are excluded from such
Exhibit, and such Components are discovered to have been excluded:
(A) on or before 6 months after the date of this Agreement, such
Components will be added to Exhibit 1, unless the Parties otherwise
agree in writing; or,
(B) after 6 months after the date of this Agreement, the Parties will
discuss in good faith as to whether such Components will be added to
Exhibit 1, and such Components will be added if the Parties agree in
writing.
(ii) In the event that Components which should have been included in
Exhibit 2 (as determined in accordance with Section 2.1(b)) are excluded
from such Exhibit, and such Components are discovered to have been
excluded:
(A) on or before three months after the date of this Agreement, and
such Components are to go into production prior to or on such date,
such Components will be added to Exhibit 2; or,
(B) after three months after the date of this Agreement(or prior to
such date, but which are not covered under Section 2.1(c)(ii)(A)
above), the Parties will discuss in good faith as to whether such
Components will be added to Exhibit 2, and such Components will be
added if the Parties agree in writing.
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(d) Without limiting any rights or remedies of Newco, if a part, component or
system is not listed on Exhibit 2 ("EXCLUDED COMPONENT"), which Excluded
Component replaces a part, component or system manufactured, as of May 1, 2005,
at a Newco Facility, and North American Sourcing Council approval was not
obtained to have such Excluded Component manufactured at a facility other than a
Master Agreement Plant, such Excluded Component will, upon Newco's written
request to Visteon, be added to Exhibit 2.
2.2 Expiration of Term or Cessation of Existing Business Designation. Upon the
termination or expiration of this Agreement, or when any Components that are
Existing Business cease to be designated as Existing Business as provided for
under this Agreement, Newco's rights to cease supplying Components which are
Existing Business to Visteon, and Visteon's rights to cease the purchase of such
Components from Newco, shall be as specified under the applicable Purchase Order
or Long Term Supply Agreement, including the Global Terms, for such Components
(without regard to any amendment or supplement to the same provided for under
this Agreement, but subject to Sections 12, 6.2(b), 7(h), and 14).
2.3 Contract Covering Sale and Purchase of Components Which Are Existing
Business In Production.
(a) Purchase Order or Long Term Supply Agreement Issued. When a Purchase
Order or Long Term Supply Agreement (as applicable) is issued after the
date of this Agreement by Visteon to Newco for Components which are
Existing Business in Production, the terms and conditions of the same
(including the Global Terms) will apply in regard to the sale and purchase
of such Components, except to the extent that such Purchase Order, Long
Term Supply Agreement, or Global Terms are modified or supplemented under,
or conflict with, this Agreement in regard to such Components. Newco agrees
to accept any such Purchase Order or Long Term Supply Agreement (as
applicable) issued by Visteon to Newco for such Components, provided that
the terms and conditions of the same are consistent with this Agreement in
regard to such Components. Visteon agrees to issue such Purchase Orders and
Long Term Supply Agreements as soon as reasonably practicable after the
date of this Agreement. Any such Purchase Order or Long Term Supply
Agreement issued will be an Existing Agreement for the purposes of this
Agreement.
(b) Prior to Issuance of Purchase Order or Long Term Supply Agreement.
Until such time as a Purchase Order or Long Term Supply Agreement (as
applicable) is issued after the date of this Agreement by Visteon to Newco
for Components which are Existing Business in Production, a Purchase Order,
on Visteon's standard form (as of May 1, 2005) attached hereto as Exhibit 3
(including the Global Terms) will be deemed to apply in regard to the sale
by Newco and purchase by Visteon of such Components, except to the extent
that such Purchase Order, Long Term Supply Agreement, or Global Terms are
modified or supplemented under, or conflict with, this Agreement in regard
to such Components. Any such Purchase Order deemed to apply will be an
Existing Agreement for the purposes of this Agreement.
2.4 Contract Covering Sale and Purchase of Existing Business - Future Model.
Components which are Existing Business - Future Model supplied by Newco to
Visteon will be supplied under the Purchase Order or Long Term Supply Agreement
(as applicable) (including the Global Terms) issued after the date of this
Agreement by Visteon to Newco for the same, except to the extent that such
Purchase Order, Long Term Supply Agreement, or Global Terms are modified or
supplemented under, or conflict with, this Agreement in regard to such
Components. Newco agrees to accept any such Purchase Order or Long Term Supply
Agreement (as applicable) issued by Visteon to Newco for such Components,
provided that the terms and conditions of the same are consistent with this
Agreement in regard to such Components. Visteon agrees to issue such Purchase
Orders and Long Term Supply Agreements as soon as reasonably practicable after
the date of this Agreement. Any such Purchase Order or Long Term Supply
Agreement issued will be an Existing Agreement for the purposes of this
Agreement.
2.5 Volumes. No specific volume commitments by Visteon for Existing Business
will exist. However, without limiting the foregoing sentence, Visteon will
continue to purchase at least the same percentage of its
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requirements (at a Component-level) for Existing Business from Newco as Visteon
Facilities were purchasing or receiving (at normal, non-exceptional, operational
levels) from Newco Facilities on and prior to May 1, 2005 (when such Newco
Facilities were Visteon Facilities), and Newco will supply such percentage, in
each case except to the extent that such requirements or supply pattern is to be
altered pursuant to a plan or action approved by the North American Sourcing
Council (if required), that Newco Facilities are sold, transferred, exited, or
closed (in regard to the applicable Components supplied by the same), Newco's
supply obligations relating to such Components are terminated, expire, or are
assigned in accordance with this Agreement, or as otherwise agreed upon by the
Parties in writing. For example, if Visteon Facilities were purchasing or
receiving 70% of their requirements for a specific Component from Newco
Facilities on and prior to May 1, 2005 at normal operational levels, Visteon
will continue to purchase at least 70% of its requirements for such specific
Component from Newco during the term of this Agreement (subject to the specific
exceptions referred to in the prior sentence). The foregoing will not, however,
permit Visteon to cease purchasing at such percentage from the assignee of any
Existing Agreement upon assignment of such Existing Agreement by Newco to such
assignee.
2.6 No Obligation to Issue Long Term Supply Agreement; Conflict with this
Agreement. Visteon shall have no obligation under this Agreement to issue a Long
Term Supply Agreement (as opposed to a Purchase Order) to Newco for any Existing
Business or other Components. In the event of a conflict between the terms of
any Purchase Order, Long Term Supply Agreement, or Global Terms and this
Agreement in regard to specific Components, the terms of this Agreement shall
control in regard to such Components.
2.7 Affect on Other Agreements. Any agreements between a Newco Facility (which,
at the time, would have been a Visteon Facility) and a Visteon Facility in
effect as of the date of this Agreement relating to the supply of Components
from such Newco Facility to such Visteon Facility covered under this Agreement
are superseded (except for use in establishing pricing as described in Section
3.1(a) or (b)) by the applicable terms and conditions of this Agreement, and by
any Purchase Order or Long Term Supply Agreement issued pursuant to this
Agreement, relating to such Components.
3. PRICING
3.1 Pricing.
(a) Existing Business in Production. Subject to Sections 3.1(c) and (d),
for Existing Business in Production, the prices of such Components will be
the documented and substantiated prices in effect for the same, as of May
1, 2005, between the Newco Facility manufacturing and supplying such
Components and the Visteon Facility to which such Components were supplied
as of May 1, 2005 (which Newco Facility was, at the time, a Visteon
Facility), as set forth in Exhibit 1, adjusted for productivity price
reductions taken after May 1, 2005 but prior to the date of this Agreement,
as set forth in Exhibit 1. In regard to any Components listed in Exhibit 1
for which no prices are specified, Visteon and Newco will negotiate in good
faith and agree upon such prices.
(b) Existing Business - Future Model. Subject to Sections 3.1(c) and (d),
for Existing Business - Future Model, the prices of such Components will be
the documented and substantiated prices (as determined in accordance with
the reasonably developed and documented plan described in Section 2.1(b)),
in effect as of May 1, 2005, (if available) for the same between the Newco
Facility planned to manufacture and supply such Components and the Visteon
Facility to which such Components were planned to be supplied as of May 1,
2005 (which Newco Facility was, at the time, a Visteon Facility), as set
forth in Exhibit 2. In regard to any Components listed in Exhibit 2 for
which no prices are specified, Visteon and Newco will negotiate in good
faith and agree upon such prices.
(c) Design or Other Changes. The prices of Components described in Section
3.1(a) and (b) will be adjusted for any Design Change or productivity price
reduction agreed upon by Visteon and Ford in writing prior to the date of
this Agreement, or agreed upon by Visteon and Xxxxx in writing after the
date
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of this Agreement (including, without limitation, the productivity
reductions specified in Section 3.2 below). No other changes to the prices
of such Components will occur unless agreed upon by the Parties in writing.
(d) Prices for Existing Business on Assignment to Buyer of Newco Facility.
In the event that:
(1) Newco assigns a Purchase Order or Long Term Supply Agreement for a
Component that is Existing Business ("ASSIGNED COMPONENT") to a buyer
or transferee of the Newco Facility from which such Assigned Component
is supplied ("TRANSFERRED FACILITY") (as described in Section 7
below); and
(2) such Transferred Facility supplies, as of the date of the
assignment, such Assigned Component, or a similar part, component or
system, directly to Ford (in addition to supplying such Assigned
Component to Visteon), and such supply to both Ford and Visteon will
continue after the date of assignment; then
Newco will amend such Purchase Order or Long Term Supply agreement prior to
assignment to provide that the price payable by Visteon for such Assigned
Component under such Purchase Order or Long Term Supply Agreement to be
assigned will, during the time period beginning on the date of such
assignment and ending on 12/31/08, be the price payable by Ford to such
buyer or transferee for such Assigned Component that will be supplied
directly by such Transferred Facility to Ford (or the price of such similar
part, component or system, if such Assigned Component will not be supplied
directly to Ford by the Transferred Facility). (Such price payable by
Visteon which matches such price payable by Ford is referred to as the
"Matched Ford Price" in the Visteon - Ford PSA.)
3.2 Productivity Price Reductions.
(a) Newco shall reduce the prices for all Ford-Vehicle Components supplied to
Visteon included in the calculation of Visteon Carryover Frozen Turnover (as
described below) beginning on the date of this Agreement through December 31,
2008 by the following percentages (such reductions will be made effective as of
January 1 of the applicable calendar year as described in Subsection 3.3 below):
Calendar Year 2005 2006 2007 2008
------------- ---- ---- ---- ----
Percentage Reduction *** *** *** ***
For a given calendar year, the aggregate productivity price reduction for all
Components included in the calculation of Visteon Carryover Frozen Turnover will
be calculated by applying the applicable Percentage Reduction for such calendar
year against the "Visteon Carryover Frozen Turnover." The "Visteon Carryover
Frozen Turnover" shall be equal to the Total Frozen Turnover, less the Target
Agreement Turnover, less any Components excluded from the calculation of the
Visteon Carryover Frozen Turnover as described in Section 3.2(b) below. The
following definitions shall apply to this calculation:
"Total Frozen Turnover" shall be equal to the total projected sales of
Components by Newco to Visteon using Visteon's budgeted volume, mix and rates
assumptions for the applicable calendar year.
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"Target Agreement Turnover" means that portion of the Total Frozen Turnover for
Components to be supplied by Newco to Visteon that will be launched during the
applicable calendar year where Newco and Visteon have entered into signed Target
Agreements (or the sourcing document of Visteon that is the equivalent of a Ford
Target Agreement).
(b) Where Newco and Visteon agree in writing on different productivity price
reductions than those specified above, such separate agreements shall supersede
the provisions of Subsection 3.2(a) if such different price reductions replace
(and are not incremental to) the price reductions required under Subsection
3.2(a). In these cases, the Components to which such different price reductions
apply will be excluded from the calculation of Visteon Carryover Frozen
Turnover. If such different price reductions are incremental to (and do not
replace) the price reductions required under Subsection 3.2(a), the Components
to which such incremental price reductions apply will be included in the
calculation of Visteon Carryover Frozen Turnover and the incremental price
reductions will apply in addition to those required under Subsection 3.2(a).
3.3 All productivity price reductions will be retroactive to January 1 of the
applicable year. If the productivity price reductions are not processed prior to
the end of any calendar quarter during the applicable year, Newco shall pay to
Visteon a lump sum equal to seventy five percent (75%) of a reasonable estimate
of the effect of the productivity price reductions based on Newco's shipments of
Components to Visteon during such calendar quarter. Such amount shall be paid on
or before the last day of such calendar quarter. The Parties acknowledge that
once the actual productivity price reductions are determined, they will be
entered into a system that will result in productivity price reductions
retroactive to January 1 of the applicable year; therefore, if Newco has made a
lump sum payment for any calendar quarter and Visteon later receives a
retroactive price adjustment, Visteon will reimburse Newco any amounts that are
charged twice to Newco. For the avoidance of doubt, Xxxxx's lump-sum payment of
75% of such estimated amount will not affect Visteon's right to receive 100% of
the productivity price reduction due for the applicable calendar year.
3.4 Notwithstanding Section 3.2 or 3.3, in regard to Non-Ford Components
supplied by a Newco Facility to Visteon, in the event Visteon entered into an
agreement with its customer (other than Ford), prior to or on the date of this
Agreement, pursuant to which Visteon is obligated to provide such customer with
productivity price reductions on parts, components, or systems supplied by
Visteon to such customer which are, or which incorporate, Components supplied by
Newco to Visteon, Newco shall provide productivity price reductions to Visteon
on such Components supplied by Newco only to the extent such agreement is
expressly identified on Schedule 3.07 (a) of the Contribution Agreement or as
otherwise agreed upon by Ford in writing in regard to such Components prior to
the date of this Agreement.
3.5 In the event that a customer of Visteon requests productivity price
reductions on parts, components or systems supplied by Visteon to such customer
which are, or which incorporate, Components supplied by Newco to Visteon, Newco
and Visteon shall discuss in good faith potential mechanisms for achieving
equivalent productivity prices reductions to Visteon on such Components supplied
by Newco.
4. DESIGN CHANGES
Except for any Design Change negotiated by Ford directly with Newco, and
notwithstanding any term or condition of any Purchase Order, Long Term Supply
Agreement, or the Global Terms, the Parties will negotiate equitable increases
or decreases in the prices of Components supplied by Newco to Visteon for
Visteon-requested Design Changes in good faith. The price of any Design Change
requested by Ford and negotiated directly with Newco will be flowed through,
unaltered, to Ford (as required under the Visteon - Ford PSA).
5. PAYMENT TERMS
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For any Components manufactured by a Newco Facility and supplied by such
Newco Facility to a Visteon Facility, and for any tooling received at Newco
Facilities (or a Newco Facility's supplier's facilities) in the United States,
Newco will be paid in accordance with the following terms during the term of
this Agreement: ***. In the event that systems issues prevent the Parties from
implementing such payment terms immediately after the date of this Agreement,
the Parties will work together in good faith to promptly address the problem
and, in the interim, promptly implement a mechanism which results, in effect, in
payment terms as close as possible to such payment terms.
As used in this Section 5, the term "tooling" refers only to tooling owned by
Visteon or its customer and funded by Visteon in an up-front payment (rather
than in the piece price) that is used for the production of Components
manufactured by a Newco Facility and supplied by such Newco Facility to a
Visteon Facility and which is located in Newco Facilities (or a Newco Facility's
supplier's facilities) in the United States.
6. RIGHT TO TERMINATE OR NOT RENEW
6.1 Termination or Nonrenewal by Visteon.
(a) Subject to Section 6.1(b), but notwithstanding any other term or
condition of this Agreement or of any Purchase Order or Long Term Supply
Agreement, or of any other termination rights Visteon may have, Visteon may
not terminate or not renew an Existing Agreement or its purchase from Newco
of Components which are Existing Business without Newco's prior written
consent, and approval of the North American Sourcing Council (where
applicable). Notwithstanding the foregoing in this Section 6.1, if Visteon
notifies Newco, in writing, that it desires to terminate or not renew an
Existing Agreement or Newco's supply to Visteon of Components which are
Existing Business Newco shall, discuss and evaluate Xxxxxxx's request in
good faith with Visteon.
(b) Notwithstanding any term or condition of this Agreement, Visteon may,
upon advance written notice to Newco, terminate or not renew, in whole or
in part, its purchase of a Component which is Existing Business only:
(1) if the Component is a Non-Ford Component, in accordance with
Section 22 (Excusable Delay) of the Global Terms for a failure to
perform by Newco as a result of an excusable delay, provided that the
excusable delay has resulted in a failure to perform by Newco lasting
more than three consecutive months after the date of Newco's notice to
Visteon of the excusable delay (as required under Section 22 of the
Global Terms);
(2) as a result of the: (i) cancellation by Ford or another OEM
Customer of Visteon of the program for which such Component is
supplied; or, (ii) the failure of Visteon to require such Component
any longer because the end-item part, component or system into which
such Component supplied by Newco is incorporated by Visteon is
changed, by the applicable program team of Ford (in regard to a
Ford-Vehicle Component) or by another customer of Visteon (in regard
to a Non-Ford Component), such that neither such Component supplied by
Newco, nor a similar part, component or system, is required in such
end-item part, component or system any longer, provided Visteon has
acted in good faith toward Newco in regard to such change;
(3) as a result of the termination of this Agreement under Section 9;
(4) in regard to a Non-Ford Component supplied by Newco, upon the
termination or expiration (for any reason) of the purchase order or
other agreement between Visteon and its customer for such Non-Ford
Component or for the part, component, or system supplied by Visteon
into which such Non-Ford Component is incorporated.
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Subject to Section 15, nothing in this Agreement shall in any way mitigate
or effect any of Visteon's rights to terminate or not renew any Purchase
Order, Long Term Supply Agreement, or other agreement other than an
Existing Agreement (i.e., a Purchase Order, Long Term Supply Agreement, or
other agreement relating to Components other than Existing Business).
In the event of a termination under Section 6.1(b)(2) above, Newco shall
have a right to submit a cancellation claim to Visteon in the same manner,
and to the same extent, as provided for under Sec. 29.02 of Ford Motor
Company's Production Purchasing Global Terms and Conditions (PPGTC Jan. 1,
2004) (as if Visteon were the "Buyer" and Newco were the "Supplier" under
such Global Terms and Conditions).
6.2 Termination or Nonrenewal by Xxxxx.
(a) Notwithstanding any term or condition of this Agreement or of any Purchase
Order, Long Term Supply Agreement, Sourcing Agreement, or Target Agreement (but
subject to section 7(c) below), Newco may, at any time, terminate or not renew,
in whole or in part, any Purchase Order, Long Term Supply Agreement, Sourcing
Agreement, or Target Agreement for any Components supplied by Newco (whether
Existing Business or otherwise), or any of its obligations under this Agreement
relating to such Components, upon prior written notice to Visteon if: (i) Ford
notifies Visteon in writing to cease purchasing the Components from Newco, and
prior approval of the termination or non-renewal by the North American Sourcing
Council is obtained (where applicable) (such notification will not be required
in regard to Non-Ford Components supplied by Newco, in which case only
notification by Newco to Visteon will be required); or, (ii) upon the sale,
exit, closure, or transfer (for any reason) of the Newco Facility supplying such
Components to Visteon. Newco will provide reasonable advance written notice to
Visteon of any such termination or non-renewal and, in regard to a termination
or non-renewal for Non-Ford Components supplied by Newco, will reasonably
cooperate with Visteon to prevent any disruption or interruption of supply to
Visteon's customer(s) of such Non-Ford Components.
(b) Newco's rights under this Section 6.2 shall survive termination or
expiration of this Agreement and will apply in regard to any Purchase Order,
Long Term Supply Agreement, Sourcing Agreement, or Target Agreement for
Components supplied by Newco to Visteon unless the Parties specifically agree
otherwise in writing; however, this right will apply only to Newco and not to
any third-party buyer or transferee of a Newco Facility.
6.3 In no event will termination or non-renewal by Newco made in accordance with
this Agreement (including, without limitation, under this Article 6 or Section
9) be considered a default or breach by Newco under any Existing Agreement or
other agreement (including, without limitation, any Purchase Order or Long Term
Supply Agreement) between Newco and Visteon.
7. NEWCO EXITING OF BUSINESSES AND ASSIGNMENT
(a) It is specifically intended by the Parties that Newco be able to freely
sell, exit, close, or transfer any or all of its facilities or business
operations. In this regard, notwithstanding any term or condition of this
Agreement or of any Purchase Order, Long Term Supply Agreement, Sourcing
Agreement, or Target Agreement, Newco may (but is not obligated to) sell, exit,
close, or transfer any Newco Facilities at any time.
(b) In addition, Newco may (but is not obligated to) freely assign (without
Visteon's consent), in whole or in part, any or all of the following: (i) any
Existing Agreement, Purchase Order, Long Term Supply Agreement, Target
Agreement, Sourcing Agreement, or other agreement between Newco and Visteon for
Components (whether Existing Business or otherwise) (A) supplied (or to be
supplied) by a Newco Facility to be closed, sold, or transferred, or (B) for
which manufacturing and supply responsibility will be transferred or assigned to
another supplier or facility by Newco as part of a restructuring of the
applicable Newco Facility; or, (ii) any rights or obligations of Newco under
this Agreement relating to such Components. Without limiting the foregoing, for
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the avoidance of doubt, Newco may assign, in whole or in part, its rights and
obligations under this Agreement relating to such a Component, but retain (or
assign, in whole or in part, to another party) its rights and obligations under
this Agreement relating to another such Component.
(c) Each of the following shall apply in regard to any assignment by Newco under
Section 7(b):
(i) If Newco assigns any of its rights to supply such Components under this
Agreement (as opposed to under any Purchase Order, Long Term Supply
Agreement, Target Agreement, or Sourcing Agreement only), Newco must also
assign its corresponding obligation to provide productivity price
reductions for such Components as provided for in Section 3.2 above for the
time period for which the assigned right to supply applies. For example, if
Newco assigns the right to supply certain Components for 2006 and 2007, it
must also assign the corresponding obligation of Newco to pay Visteon
productivity for such Components under this Agreement for 2006 and 2007.
(ii) If Newco assigns only an Existing Agreement, Purchase Order, Long Term
Supply Agreement, Target Agreement, or Sourcing Agreement as described in
Section 7(b)(i) above, and does not also assign any of its rights or
obligations under this Agreement relating to the Component supplied by
Newco under such Existing Agreement, Purchase Order, Long Term Supply
Agreement, Target Agreement, or Sourcing Agreement as described in Section
7(b)(ii) above, this PSA shall cease to apply to such Component (and to
such Existing Agreement, Purchase Order, Long Term Supply Agreement, Target
Agreement, or Sourcing Agreement) as of the date of such assignment,
provided such assignment is for a duration equal to or in excess of one
year, is otherwise to a bona-fide purchaser, acquirer, or transferee of a
Newco Facility or of the Component for which manufacturing and supply
responsibility is transferred or assigned as described in Section
7(b)(i)(B) above, or relates to the exit or closure of a Newco Facility.
(iii) If Newco assigns its rights under an Existing Agreement, Purchase
Order, Long Term Supply Agreement, Target Agreement, or Sourcing Agreement
as described in Section 7(b)(i) above, and also assigns any of its rights
or obligations under this Agreement relating to the Component supplied by
Newco under such Existing Agreement, Purchase Order, Long Term Supply
Agreement, Target Agreement, or Sourcing Agreement as described in Section
7(b)(ii) above, this PSA shall cease to apply to such Component (or such
Existing Agreement, Purchase Order, Long Term Supply Agreement, Target
Agreement, or Sourcing Agreement) as of the date of such assignment, except
in regard to the specific rights and obligations (and only such specific
rights and obligations) assigned, provided such assignment is for a
duration equal to or in excess of one year, is otherwise to a bona-fide
purchaser, acquirer, or transferee of a Newco Facility or of the Component
for which manufacturing and supply responsibility is transferred or
assigned as described in Section 7(b)(i)(B) above, or relates to the exit
or closure of a Newco Facility.
For example, if Newco assigns its right to supply a Component for 2006 and
2007 under this Agreement (in addition to assigning the applicable Purchase
Order or Long Term Supply Agreement), but it has an obligation under this
Agreement to supply such Component for 2008 as well, upon such assignment
this PSA will cease to apply to such Component (as well as to the
applicable Purchase Order or Long Term Supply Agreement), except in regard
to the right to supply assigned (and the corresponding productivity price
reduction obligation assigned pursuant to Section 7(c)(i)) only. As such,
upon such assignment Newco will have no further obligation to supply such
Component for 2008.
(d) In regard to any assignment under Section 7(b), upon Xxxxx's request,
Visteon will provide to Newco, in a form reasonably satisfactory to Newco, a
release of Newco of, and covenant not to sue the same for, all claims Visteon
has or may have against Newco relating to the agreement or rights or obligations
assigned, to the extent that Newco has assigned responsibility for any such
claims to the assignee of such agreement or rights or obligations assigned and
such assignee has assumed such claims and obligations. In this regard, as a
condition of supplying such release, Visteon shall have the right to request
that Newco certify, in writing, that, to Newco's
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knowledge, the extent to which Xxxxx has assigned responsibility for any such
claims to the assignee, and the release and covenant not to sue granted by
Visteon will not include any claims Visteon may have against Newco that were not
assigned. Such release and covenant not to sue will not apply to any assignment
by Newco to any Affiliate of Newco, or any subsidiary or affiliate of Ford, that
does not have the financial capability to satisfy the claims and obligations
assumed.
(e) Visteon will cooperate diligently and in good faith with Xxxxx, in regard to
any sale, exit, closure, transfer, or assignment described in this Section 7.
(f) If Newco assigns, in whole or in part, any Existing Agreement, Purchase
Order, Long Term Supply Agreement, Target Agreement, Sourcing Agreement, or
other agreement between Newco and Visteon for Components supplied (or to be
supplied) by a Newco Facility to be closed, transferred, or sold as described in
Section 7(b)(i) above, the terms and conditions of such whole or part of such
Existing Agreement, Purchase Order, Long Term Supply Agreement, Target
Agreement, Sourcing Agreement, or other agreement assigned shall be as specified
in the same, without regard to any amendment or supplement to the same provided
for under this Agreement (subject to Section 14). If Newco assigns any rights or
obligations of Newco under this Agreement relating to such Components as
described in Section 7(b)(ii) above, such rights and obligations shall be
additional and supplemental to the Existing Agreement, Purchase Order, Long Term
Supply Agreement, Target Agreement, Sourcing Agreement, or other agreement
between Newco and Visteon for such Components assigned as described in the prior
sentence.
(g) Upon prior written notice to Visteon, prior to any assignment of a Purchase
Order, Long Term Supply Agreement, Target Agreement, or Sourcing Agreement,
Newco may (but is not obligated to) amend the same to provide for a one-year
renewable term for the same with non-renewal rights of the parties thereunder
substantially similar to those of the "Buyer" and "Supplier" under Ford's
Production Purchasing Global Terms and Conditions (PPGTC Jan. 1, 2004) (in
regard to any such Target Agreement or Sourcing Agreement assigned, such
amendment would apply to any Purchase Order or Long Term Supply Agreement issued
pursuant thereto).
(h) Newco's rights under this Section 7 shall survive termination or expiration
of this Agreement and will apply in regard to any Purchase Order, Long Term
Supply Agreement, Sourcing Agreement, or Target Agreement for Components
supplied by Newco to Visteon unless the Parties specifically agree otherwise in
writing; however, this right will apply only to Newco and not to any third-party
buyer or transferee of a Newco Facility.
8. VISTEON EXITING OF BUSINESSES AND ASSIGNMENT
Notwithstanding any term or condition of this Agreement or of any Purchase
Order, Long Term Supply Agreement, Sourcing Agreement, or Target Agreement,
Visteon may not, without Newco's prior written consent, assign, in whole or in
part, any: (i) Existing Agreement, Purchase Order, Long Term Supply Agreement,
Target Agreement, Sourcing Agreement, or other agreement between Newco and
Visteon for Components supplied (or to be supplied) by Newco to Visteon; or,
(ii) rights or obligations of Visteon under this Agreement relating to such
Components. Notwithstanding the foregoing in this Section 8, if Visteon notifies
Newco, in writing, that it desires to make any such assignment, Xxxxx shall
discuss and evaluate Visteon's request in good faith with Visteon.
9. DEFAULT
9.1. A Party (a "NON-DEFAULTING PARTY") may give notice to the other Party (the
"DEFAULTING PARTY"), upon occurrence of any of the following events, any one of
which will be considered to be an "EVENT OF DEFAULT":
(a) Material Default by a Party. Any default by the Defaulting Party in
the performance of any obligation or in the observance of any
restriction in this Agreement, which default may not be cured or is
not effectively cured after a period of 30 days after written notice
thereof has been
14
given by the Non-Defaulting Party; provided that if such default
cannot be cured within 30 days, then the Defaulting Party shall have a
reasonable period to cure the default (not to exceed 90 days), during
which period the Defaulting Party shall at all times diligently pursue
a cure;
(b) Termination of Existence Initiated by a Party. The Defaulting Party
commences any Proceeding to wind up, dissolve, or otherwise terminate
its legal existence;
(c) Termination of Existence Initiated by Another Person. Any proceeding
is commenced against the Defaulting Party that seeks or requires the
winding up, dissolution, or other termination of its legal existence,
unless the proceeding is defended or contested in good faith by the
Defaulting Party within 30 days of the commencement of the proceeding
in a manner that stays it and such defense or contest is pursued
diligently thereafter;
(d) Bankruptcy. Either (a) the Defaulting Party seeks relief by any
proceedings of any nature under any applicable laws for the relief of
debtors; or (b) the institution against the Defaulting Party of a
proceeding under any applicable bankruptcy or similar law of any
jurisdiction in which the Defaulting Party carries on its business,
unless the proceeding is defended or contested in good faith by the
Defaulting Party within 15 days of the commencement of the proceeding
in a manner that stays the proceedings and then only so long as such
defense or contest is pursued diligently thereafter;
(e) Appointment of a Receiver. The appointment of a receiver,
receiver-manager, trustee, custodian or like officer for all or a
substantial part of the business or assets of the Defaulting Party,
unless the appointment is defended or contested in good faith by the
Defaulting Party within 30 days of the commencement of the appointment
in a manner that stays the appointment and then only so long as such
defense or contest is pursued diligently thereafter; or
(f) Assignment for Benefit of Creditors. The Defaulting Party makes an
assignment of a substantial part of its assets for the benefit of its
creditors.
9.2. Upon the occurrence of an Event of Default, the Non-Defaulting Party may
elect one or more of the following remedies:
(a) Subject to Section 9.4 below, termination of this Agreement, in whole
or in part, and any such termination shall not be deemed a waiver or
release of, or otherwise prejudice or affect, any rights, remedies or
claims, whether for Damages or otherwise, which the Non-Defaulting
Party may then possess under this Agreement or which arise as a result
of such termination; provided, however, that the Non-Defaulting Party
may only elect to terminate this Agreement (in whole or in part) for
an Event of Default under Section 9.1(a) above (Default by a Party) if
the default by the Defaulting Party under Section 9.1(a) is a material
default under this Agreement; and
(b) Set off and recoupment against sums owed by the Non-Defaulting Party
or one of its Affiliates to the Defaulting Party or one of its
Affiliates any amounts for which the Non-Defaulting Party determines
in good faith that the Defaulting Party or one of its Affiliates is
liable to the Non-Defaulting Party or one of its Affiliates under this
Agreement or any Purchase Order; and
(c) Recovery of Damages arising from the Default.
9.3 (a) In addition to any termination rights Newco may have under this
Agreement or applicable law, Newco may terminate this Agreement in the following
events: (i) a Change of Control of Visteon occurs; or (ii) all of the Existing
Agreements are terminated or not renewed in accordance with this Agreement.
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(b) As used in this Section 9.3, the term "CHANGE OF CONTROL" means (i) a
liquidation or dissolution of Visteon; (ii) the sale, lease, transfer,
conveyance or other disposition, in one or a series of related transactions, of
all or substantially all of the assets of Visteon and its subsidiaries, taken as
a whole; (iii) a merger, consolidation, share exchange, business combination or
similar extraordinary transaction as a result of which the persons possessing,
immediately prior to the consummation of such transaction, beneficial ownership
of the voting securities of Visteon entitled to vote generally in elections of
directors of Visteon, cease to possess, immediately after consummation of such
transaction, beneficial ownership of voting securities entitling them to
exercise at least 50% of the total voting power of all outstanding securities
entitled to vote generally in elections of directors of Visteon (or, if not
Visteon, the surviving entity resulting from such transaction); or (iv) a
transaction or series of transactions (including by way of merger,
consolidation, sale of stock or otherwise) the result of which is that any
Person or "group" (as defined in Section 13 of the Securities Exchange Act of
1934) becomes the "beneficial owner" (as such term is defined in Rule 13d-3 and
Rule 13d-5 promulgated under the Securities Exchange Act of 1934), directly or
indirectly, of more than 50% of the voting power of the outstanding voting stock
of Visteon.
(c) Notwithstanding Section 9.3(a) above, in the event of an occurrence
described in Section 9.3(b)(ii), (iii), or (iv) above, Newco may not terminate
an Existing Agreement relating to a Component during the term of this Agreement,
or terminate this Agreement, as a result of a Change of Control of Visteon
unless and until it has made a good faith effort to discuss (if Visteon
requests, in writing, that Newco have such discussion) the potential
continuation of the applicable Existing Agreement or of this Agreement, with:
(1) the transferee of all, or substantially all, of the assets of Visteon and
its Subsidiaries described in Section 9.3(b)(ii); (2) the Person Controlling
Visteon (if any) as a result of the merger, consolidation, share exchange,
business combination or similar extraordinary transaction described in Section
9.3(b)(iii) (for this purpose, "Control" will be as defined in the definition of
the term "Affiliate" in Section 1.1 above); or, (3) the Person or "group" that
will become the "beneficial owner" of more than 50% of the voting power of the
outstanding voting stock of Visteon described in Section 9.3(b)(iii).
9.4 A Non-Defaulting Party intending to terminate this Agreement pursuant to
this Article 9 as a result of an Event of Default occurring under Subsections
9.1(a) or (b) shall first notify the Defaulting Party of the grounds for the
intended termination. If the Defaulting Party fails to remedy such grounds for
termination within sixty (60) days of such notice (or any longer period of time
as mutually agreed by the Parties), then the Non-Defaulting Party may terminate
this Agreement effective upon notice to the Defaulting Party without the need
for any judicial action.
9.5 The provisions of this Article 9 are without prejudice to any other rights
or remedies either Party may have by reason of the Event of Default of the other
Party; provided, however, that the Parties' rights to terminate this Agreement
shall in all cases be as described in this Article 9.
10. TERM
The term of this Agreement shall commence on the date of this Agreement and
continue through December 31, 2008, unless terminated earlier in accordance with
the terms and conditions of this Agreement.
11. CONFIDENTIALITY
11.1 "Confidential Information" is defined as information that is disclosed in
connection with this Agreement and which is furnished in the following forms:
(a) Any information whether or not it is provided in writing or orally,
including drawings, documents, financial statements and projections,
demonstrations, product and product cycle plans and any other
information or machine readable data, of a Party furnished to another
Party that is marked "Confidential" or contains a proprietary notice
clause or, if disclosed orally, was identified as confidential at the
time of oral disclosure;
16
(b) Confidential Information includes also any item of hardware, including
samples, devices and any other physical embodiments, if such hardware
is delivered to the receiving Party.
(c) In the event that Confidential Information shall be incorporated into
or reflected in other documents, whether separately or jointly
generated by the Parties, such other documents shall be deemed
Confidential Information subject to the terms of this Agreement.
11.2 The receiving Party shall, for a period beginning with the first date of
receipt of each respective disclosure and continuing for three years thereafter,
use the same standard of care it uses to protect its own information of similar
kind and importance, but not less than reasonable care, to maintain the
confidentiality of Confidential Information and to limit its disclosure to such
of its directors, employees, agents, advisors or Affiliates as have a need to
know such Confidential Information in order that the objectives of this
Agreement can be achieved. In addition, if Newco is the receiving party, Newco
shall limit disclosure of Confidential Information of Visteon to only those
directors, employees, agents, advisors or Affiliates of Ford who have a need to
know such Confidential Information and are receiving such Confidential
Information in connection with a legitimate business interest of Xxxxx. The
receiving Party shall be responsible for the compliance by such directors,
employees, agents, advisors or Affiliates (including, with respect to Newco,
Ford) with the provisions of this Agreement. Notwithstanding the foregoing,
Newco shall be permitted to provide to potential or actual acquirers of all or
any part of Newco, its business, or any Newco Facilities, such Confidential
Information (as well as any confidential information of Visteon under any
Purchase Order, Long Term Supply Agreement, Sourcing Agreement, or Target
Agreement for any Components) as Newco deems necessary to conduct discussions
with such potential acquirers or to sell, transfer, exit, or close all or any
part of Newco, its business, or any Newco Facilities, provided that such
potential acquirers, or any such purchasers or transferees, enter into a
confidentiality agreement with Newco substantially comparable to the terms and
conditions of this Article 11.
11.3 The confidentiality obligations of this Agreement shall not apply to
confidential information received pursuant to this Agreement which:
(a) is or becomes publicly known other than through a breach of this
Agreement by the receiving Party; or
(b) is already known to the receiving Party at the time of disclosure as
evidenced by the receiving Party's written documentation; or
(c) is lawfully received by the receiving Party from a third party without
breach of this Agreement or breach of any other agreement between the
disclosing Party and such third party; or
(d) is independently developed by employees of the receiving Party who
have not had access to or received any Confidential Information under
this Agreement; or
(e) is furnished to a third party by the disclosing Party without
restriction on the third party's rights to disclose; or
(f) is authorized in writing by the disclosing Party to be released from
the confidentiality obligations herein.
Specific information shall not be deemed to be within such exceptions merely
because it is included within general information, which is within such
exceptions, nor shall a combination of features be deemed to be within such
exceptions merely because the individual features of the combination are
separately within such exceptions.
17
11.4 Confidential Information shall remain the exclusive property of the
disclosing Party. The receiving Party agrees that Confidential Information
disclosed hereunder is being received subject to the disclosing Party's
ownership rights in such Confidential Information and, further, subject to all
relevant intellectual and/or proprietary property rights of the disclosing
Party, including the relevant laws governing patents, trademarks, copyrights,
semiconductor chip protection, trade secrets and unfair competition.
11.5 Upon the termination of this Agreement, the receiving Party shall, at its
own expense, promptly return to the disclosing Party all originals and copies of
the writings and hardware in its possession which contain Confidential
Information. If any writing or hardware has been destroyed, an adequate response
to a return request therefor by the disclosing Party will be written notice,
executed by the receiving Party, that such writing or hardware has been
destroyed.
11.6 If the receiving Party becomes legally compelled (by oral questions,
interrogatories, request for information or documents, subpoena, civil
investigative demand or similar process) to disclose any Confidential
Information, the receiving Party will provide the disclosing parties with prompt
written notice so that the disclosing Party may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of this
Agreement. In the event that such protective order or other remedy is not
obtained, or the disclosing Party waives compliance with the provisions of this
Agreement, the receiving Party will furnish only that Confidential Information
which is legally required and will exercise reasonable efforts to obtain
reliable assurance that confidential treatment will be accorded the Confidential
Information so disclosed.
12. CONFLICT WITH OTHER AGREEMENTS
Nothing in this Agreement, any Existing Agreement, or in any Purchase Order,
Long Term Supply Agreement, Target Agreement, or Sourcing Agreement for
Components or the Global Terms affects, limits, or supersedes in any way any
Master Transaction Agreement or any rights, obligations, or limitations of
liability of either of Newco or Visteon under any Master Transaction Agreement,
including, without limitation, any limitations of liability of Newco or Visteon
relating to any Components (or parts, components, or materials thereof)
contained in any Master Transaction Agreement, or any rights relating to
intellectual property, or responsibility for infringement of intellectual
property rights, contained in any Master Transaction Agreement. In the event of
any conflict between the provisions of this Agreement and any Master Transaction
Agreement, the Master Transaction Agreement shall prevail. This Section 12 will
survive the termination or expiration of this Agreement. Without limiting the
generality of the foregoing, the Parties agree that nothing in this Agreement,
or in any any Purchase Order, Long Term Supply Agreement, Target Agreement,
Sourcing Agreement, or the Global Terms, shall in any respect limit or restrict
Visteon's obligations with respect to liabilities retained by Visteon under
Section 2.04(iii) of the Contribution Agreement and Newco shall have no
liability to Visteon under this Agreement or under any Purchase Order, Long Term
Supply Agreement, Target Agreement, Sourcing Agreement, or the Global Terms with
respect to such liabilities retained.
For the purposes of this Section 12, "Master Transaction Agreements" means the
following, collectively: All of the agreements referenced in section 8 of the
Master Agreement by and between Ford and Visteon dated as of September 12, 2005.
13. GENERAL PROVISIONS
13.1 No Agency. This Agreement does not constitute either Party the agent or
legal representative of the other Party. Neither Party is authorized to create
any obligation on behalf of the other Party.
13.2 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,
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if to Newco, to:
Automotive Components Holdings, LLC
c/o Ford Motor Company
Office of the Secretary
One American Road
11th Floor World Headquarters
Dearborn, Michigan 48126
Attention: Xxxxx X. Xxxxxx, Xx.
Facsimile No.: (000) 000-0000
E-mail: xxxxxxx@xxxx.xxx
with a copy to:
Automotive Components Holdings, LLC
One American Road
000 Xxxxx Xxxxxxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, General Counsel
Facsimile No.: (000) 000-0000
E-mail: xxxxx@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
or such other address, facsimile number or e-mail address 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.
13.3 Subsidiaries and Affiliates. Subject to the scope of this Agreement
described in Recitals A and B, subsidiaries and Affiliates of Newco and Visteon
are bound by the provisions herein to the extent that such subsidiaries or
Affiliates produce Components supplied by Newco or its Affiliates (in regard to
Visteon and its Affiliates) or purchase Components supplied by Newco or its
Affiliates (in regard to Newco and its Affiliates). Each Party warrants and
represents to the other Party that it has the authority to bind its Affiliates
to this Agreement as described in this Section 13.3.
13.4 Amendments and Waivers.
(a) 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.
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(b) 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.
13.5 Entire Agreement. This Agreement contains all Exhibits hereto. Subject to
Section 12, this Agreement supersedes any prior agreements between the Parties
concerning the subject matter herein.
13.6 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 neither Party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of each other Party hereto, except as expressly
provided for otherwise in this Agreement.
13.7 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 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.
13.8 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. The Parties exclude the application of the
1980 United Nations Convention on Contracts for the International Sale of Goods,
if otherwise applicable.
13.9 Disputes. 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; provided, however, that a Party may seek injunctive relief
from a court where appropriate for the purpose of maintaining the status quo
while this procedure is being followed:
(i) 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.
(ii) 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 shall enter a final ruling that
adopts in whole such requested relief. The arbitrator shall limit
his/her final ruling to selecting the entire
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requested relief he/she considers the most appropriate from the
requests submitted by the Parties.
(iii) 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 13.9 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.
13.10 Counterparts; Effectiveness; Third Party Beneficiaries. This Agreement may
be signed in 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 as of the date first set forth above when
each Party hereto shall have received a counterpart hereof signed by the other
Party 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). Except as specifically
provided for herein, 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 13.6 or Section 7.
13.11 Right to Audit.
(a) If requested by Visteon, Newco will permit Visteon (which, for purposes of
this Section 13.11, includes its authorized representatives) to:
(i) Examine all non-privileged pertinent documents, data and other
information relating to Newco's obligations under this Agreement, any payment
made to Newco or any claim by Newco;
(ii) View any facility or process relating to the Components or this
Agreement, including those relating to production quality; and
(iii) Audit any facility or process to determine compliance with the
requirements of this Agreement.
Any examination under this Section 13.11 will be conducted during normal
business hours and upon advance written notice to Newco.
(b) If requested by Visteon, Newco will use its best efforts to permit Visteon
to obtain from the subcontractors of, and vendors to, Newco the information and
permission to conduct the reviews specified in Section 13.11, regardless of any
other right Visteon may have to that information or facilities.
(c) Newco will keep all relevant documents, data and other written information
for at least two years following the termination of this Agreement.
13.12 Agreement or Consent of Newco. In regard to any agreement or consent of
Newco referenced or required under this Agreement, such agreement or consent
shall mean the agreement or consent of Newco given after the date of this
Agreement only (and not prior to the date of this Agreement).
14. CHANGES TO GLOBAL TERMS
The Parties acknowledge that the Global Terms allow Visteon to amend the
Global Terms from time to time. In this regard, Visteon may amend the Global
Terms that apply to Existing Agreements, but only as and to
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the extent that such amendments are intended to apply to its suppliers
generally. The Parties will discuss in good faith any such amendments.
15. NORTH AMERICAN SOURCING COUNCIL APPROVAL.
Visteon will, during the term of this Agreement, obtain North American
Sourcing Council approval for any sourcing (including, without limitation, any
re-sourcing or de-sourcing) action taken by it if one or more Ford Master
Agreement Workers' jobs would be impacted by such action, except to the extent:
(i) Newco notifies Visteon otherwise in writing in regard to a particular
action; or, (ii) expressly provided for otherwise in Section 6.1 (in regard to
Visteon's termination rights relating to Existing Business).
IN WITNESS WHEREOF, Xxxxx and Visteon have caused this Agreement to be executed
in multiple counterparts by their duly authorized representatives.
VISTEON CORPORATION AUTOMOTIVE COMPONENTS HOLDINGS, LLC
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
--------------------------------- ------------------------------------
Title: Executive Vice President and Title: President
Chief Financial Officer
Date: September 30, 2005 Date: September 30, 2005
------------------------------- ----------------------------------
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