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EXHIBIT 10.10
FORM OF CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT, dated as of (the "Effective Date"),
is made by and between Visteon Corporation, a Delaware corporation (the
"Company"), and (the "Executive").
WHEREAS, the Company considers it essential to the best
interests of its stockholders to xxxxxx the continued employment of key
management personnel; and
WHEREAS, the Board recognizes that, as is the case with many
publicly held corporations, the possibility of a Change in Control exists and
that such possibility, and the uncertainty and questions which it may raise
among management, may result in the departure or distraction of management
personnel to the detriment of the Company and its stockholders; and
WHEREAS, the Board has determined that appropriate steps
should be taken to reinforce and encourage the continued attention and
dedication of members of the Company's management, including the Executive, to
their assigned duties without distraction in the face of potentially disturbing
circumstances arising from the possibility of a Change in Control;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Company and the Executive hereby agree as
follows:
1. Defined Terms. The definitions of capitalized terms used in
this Agreement are provided in the last Section hereof.
2. Term of Agreement. The Term of this Agreement shall
commence on the Effective Date and shall continue in effect through the fifth
anniversary of the Effective Date; provided, however, that commencing on the
first anniversary of the Effective Date, and on each anniversary of the
Effective Date thereafter, the Term shall automatically be extended for one
additional year unless, not later than 90 days prior to each such date, the
Company or the Executive shall have given notice not to extend the Term; and
provided, further, that if a Change in Control shall have occurred during the
Term, the Term shall
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expire no earlier than 36 months beyond the month in which such Change in
Control occurred.
3. Company's Covenants Summarized. In order to induce the
Executive to remain in the employ of the Company and in consideration of the
Executive's covenants set forth in Section 4 hereof, the Company agrees, under
the conditions described herein, to pay the Executive the Severance Payments and
the other payments and benefits described herein. Except as provided in Section
9.1 hereof, no Severance Payments shall be payable under this Agreement unless
there shall have been (or, under the terms of the second sentence of Section 6.1
hereof, there shall be deemed to have been) a termination of the Executive's
employment with the Company following a Change in Control and during the Term.
This Agreement shall not be construed as creating an express or implied contract
of employment and, except as otherwise agreed in writing between the Executive
and the Company, the Executive shall not have any right to be retained in the
employ of the Company.
4. The Executive's Covenants.
4.1 The Executive agrees that, subject to the terms and
conditions of this Agreement, in the event of a Potential Change in Control
during the Term, the Executive will remain in the employ of the Company until
the earliest of (i) a date which is six months from the date of such Potential
Change of Control, (ii) the date of a Change in Control, (iii) the date of
termination by the Executive of the Executive's employment for Good Reason or by
reason of death, Disability or Retirement, or (iv) the termination by the
Company of the Executive's employment for any reason.
4.2 The Executive agrees that, during the Term and for a
period ending on the second anniversary of a termination of the Executive's
employment following a Change in Control under circumstances entitling the
Executive to payments and benefits under Section 6 hereof, the Executive will
not, without the prior written consent of the Chairman of the Board or the Chief
Executive Officer of the Company, engage in or perform any services of a similar
nature to those performed by the Executive at the Company for any other
corporation or business which is engaged in the design, manufacture,
development, promotion, sale or financing of automobile or truck components
within North America, Latin America, Asia, Australia or Europe in competition
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with the Company or any of the Company's subsidiaries or Affiliates, or any
joint ventures to which the Company or any of the Company's subsidiaries or
Affiliates are a party.
4.3 During the Term and thereafter, the Executive will not
(other than in the regular course and in furtherance of the Company's business)
divulge, furnish or make available to any person any confidential knowledge,
information or materials, whether tangible or intangible, regarding proprietary
matters relating to the Company, including, without limitation, trade secrets,
customer and supplier lists, pricing policies, operational methods, marketing
plans or strategies, product development techniques or plans, business
acquisition or disposition plans, new personnel employment plans, methods of
manufacture, technical processes, designs and design projects, inventions and
research projects and financial budgets and forecasts of the Company except (1)
information which at the time is available to others in the business or
generally known to the public other than as a result of disclosure by the
Executive not permitted hereunder, and (2) when required to do so by a court of
competent jurisdiction, by any governmental agency or by any administrative body
or legislative body (including a committee thereof) with purported or apparent
jurisdiction to order the Executive to divulge, disclose or make accessible such
information.
5. Compensation Other Than Severance Payments.
5.1 Following a Change in Control and during the Term, during
any period that the Executive fails to perform the Executive's full-time duties
with the Company as a result of incapacity due to physical or mental illness,
the Company shall pay to the Executive an amount that when added to the amount
paid to the Executive under the Company's short-term and/or long-term disability
plans, will result in the Executive receiving his full salary at the rate in
effect at the commencement of any such period, together with all compensation
and benefits payable to the Executive under the terms of any other compensation
or benefit plan, program or arrangement maintained by the Company during such
period, until the Executive's employment is terminated by the Company for
Disability.
5.2 If the Executive's employment shall be terminated for any
reason following a Change in Control and during the Term, the Company shall
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pay the Executive's full salary to the Executive through the Date of Termination
at the rate in effect immediately prior to the Date of Termination or, if
higher, the rate in effect immediately prior to the first occurrence of an event
or circumstance constituting Good Reason, together with all compensation and
benefits payable to the Executive through the Date of Termination under the
terms of the Company's compensation and benefit plans, programs or arrangements
as in effect immediately prior to the Date of Termination or, if more favorable
to the Executive, as in effect immediately prior to the first occurrence of an
event or circumstance constituting Good Reason.
5.3 If the Executive's employment shall be terminated for any
reason following a Change in Control and during the Term, the Company shall pay
to the Executive the Executive's normal post-termination compensation and
benefits as such payments become due. Such post-termination compensation and
benefits shall be determined under, and paid in accordance with, the Company's
retirement, insurance and other compensation or benefit plans, programs and
arrangements as in effect immediately prior to the Date of Termination or, if
more favorable to the Executive, as in effect immediately prior to the
occurrence of the first event or circumstance constituting Good Reason.
6. Severance Payments.
6.1 If (i) the Executive's employment is terminated following
a Change in Control and within three (3) years after a Change in Control, other
than (A) by the Company for Cause, (B) by reason of death or Disability, or (C)
by the Executive without Good Reason, or (ii) the Executive voluntarily
terminates his employment for any reason during the 30 day period commencing on
the first anniversary of a Change in Control, then, in either such case, the
Company shall pay the Executive the amounts, and provide the Executive the
benefits, described in this Section 6.1 ("Severance Payments") and Section 6.2,
in addition to any payments and benefits to which the Executive is entitled
under Section 5 hereof. For purposes of this Agreement, the Executive's
employment shall be deemed to have been terminated following a Change in Control
by the Company without Cause or by the Executive with Good Reason, if (i) the
Executive's employment is terminated by the Company without Cause prior to a
Change in Control (whether or not a Change in Control ever occurs) and such
termination was at the request or direction of a Person who has entered
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into an agreement with the Company the consummation of which would constitute a
Change in Control, or (ii) the Executive terminates his employment for Good
Reason prior to a Change in Control (whether or not a Change in Control ever
occurs) and the circumstance or event which constitutes Good Reason occurs at
the request or direction of such Person. For purposes of any determination
regarding the applicability of the immediately preceding sentence, any position
taken by the Executive shall be presumed to be correct unless the Company
establishes to the Board by clear and convincing evidence that such position is
not correct.
(A) In lieu of any further salary payments to the
Executive for periods subsequent to the Date of Termination, the Company shall
pay to the Executive within five (5) business days after the Date of
Termination, a lump sum severance payment, in cash, equal to three (3) times the
sum of (i) the Executive's base salary as in effect immediately prior to the
Date of Termination or, if higher, in effect immediately prior to the first
occurrence of an event or circumstance constituting Good Reason, and (ii) the
Executive's target annual bonus pursuant to any annual bonus or incentive plan
maintained by the Company in respect of the fiscal year in which occurs the Date
of Termination or, if higher, the fiscal year in which occurs the first event or
circumstance constituting Good Reason. The amount payable pursuant to this
Section 6.1(A) shall be reduced by the amount of any cash severance or salary
continuation benefit paid or payable to the Executive under any other plan,
policy or program of the Company or any of its Affiliates or any written
employment agreement between the Executive and the Company or any of its
Affiliates.
(B) For the 36 month period immediately following the
Date of Termination, the Company shall arrange to provide the Executive and his
dependents life, accident and health insurance benefits substantially similar to
those provided to the Executive and his dependents immediately prior to the Date
of Termination or, if more favorable to the Executive, those provided to the
Executive and his dependents immediately prior to the first occurrence of an
event or circumstance constituting Good Reason, at no greater cost to the
Executive than the cost to the Executive immediately prior to such date or
occurrence; provided, however, that, unless the Executive consents to a
different method (after taking into account the effect of such method on the
calculation of "parachute payments" pursuant to Section 6.2 hereof), such health
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and life insurance benefits shall be provided through a third-party insurer.
Benefits otherwise receivable by the Executive pursuant to this Section 6.1(B)
shall be reduced to the extent benefits of the same type are received by or made
available to the Executive during the 36 month period following the Executive's
termination of employment (and any such benefits received by or made available
to the Executive shall be reported to the Company by the Executive); provided,
however, that the Company shall reimburse the Executive for the excess, if any,
of the cost of such benefits to the Executive over such cost immediately prior
to the Date of Termination or, if more favorable to the Executive, the first
occurrence of an event or circumstance constituting Good Reason.
(C) Each option to purchase shares of common stock of
the Company outstanding as of the Date of Termination shall become fully vested
and exercisable as of such date and shall remain exercisable during the
remaining term of such option (such remaining term to be determined as if the
Executive were still actively employed), and each grant of restricted stock or
similar grant, the award of which is contingent only upon the continued
employment of the Executive to a subsequent date, shall become fully vested as
of the Date of Termination.
(D) Unless payable to the Executive under the terms
of any annual or long-term incentive plan, the Company shall pay to the
Executive within five (5) business days after the Date of Termination, a lump
sum amount, in cash, equal to the sum of (i) any unpaid incentive compensation
(including performance share awards) which has been allocated or awarded to the
Executive for a completed fiscal year or other measuring period preceding the
Date of Termination under any such plan and which, as of the Date of
Termination, is contingent only upon the continued employment of the Executive
to a subsequent date, and (ii) a pro rata portion to the Date of Termination of
the aggregate value of all contingent incentive compensation awards (including
performance share awards) to the Executive for all then uncompleted periods
under any such plan, calculated as to each such award by multiplying the award
that the Executive would have earned on the last day of the performance award
period, assuming the achievement, at the target level (or if higher, at the then
projected actual final level), of the individual and corporate performance goals
established with respect to such award, by the fraction obtained by dividing the
number of full months and any fractional portion of a
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month during such performance award period through the Date of Termination by
the total number of months contained in such performance award period.
(E) The benefits then accrued by or payable to the
Executive under the Company's Supplemental Executive Retirement Plan, Executive
Separation Allowance Plan, Deferred Compensation Plan, Savings Parity Plan, or
any successor to any such plan, and the benefits then accrued by or payable to
the Executive under any other nonqualified plan providing supplemental
retirement or deferred compensation benefits (other than the Select Retirement
Plan), shall become fully vested and payable notwithstanding any eligibility
conditions that would otherwise apply with respect to such benefits; provided
that if the Executive has not attained fifty-five (55) years of age, the
Executive's benefit under the Executive Separation Allowance Plan will commence
to be paid upon the Executive's attainment of age fifty-five (55). With respect
to the Supplemental Executive Retirement Plan, Executive Separation Allowance
Plan, and any other nonqualified nonaccount balance plan or portion of a plan
providing supplemental retirement or deferred compensation benefits (other than
the Select Retirement Plan), the Company shall transfer an amount in cash
sufficient to pay all benefits then accrued by or payable to the Executive under
the terms of such plans into an irrevocable grantor trust (a so-called "Rabbi
Trust") whose trustee shall be an entity unaffiliated with and independent of
the Company, which trust shall be required to pay such benefits in accordance
with and subject to the applicable terms of each plan (as modified by this
Agreement) and the trust instrument; provided that any amendment or termination
of any such plan on or after the Change in Control date the effect of which
would be to reduce or eliminate the benefit payable to the Executive shall be
disregarded. With respect to the Deferred Compensation Plan, Savings Parity
Plan, and any other nonqualified account balance plan or portion of a plan
providing supplemental retirement or deferred compensation benefits, the Company
shall pay to the Executive, within five (5) business days after the Date of
Termination, a lump sum amount, in cash, equal to the sum of the aggregate
account balances of the Executive under such plans or portions of plans as of
the date of such payment.
(F) The Company shall reimburse the Executive for
expenses incurred for outplacement services suitable to the Executive's position
for a period of three (3) years following the Date of Termination (or, if
earlier, until the first acceptance by the Executive of an offer of employment)
in an
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amount not exceeding 25% of the sum of the Executive's annual base salary as in
effect immediately prior to the Date of Termination or, if higher, in effect
immediately prior to the first occurrence of an event or circumstances
constituting Good Reason, and target annual bonus pursuant to any annual bonus
or incentive plan maintained by the Company in respect of the fiscal year in
which occurs the Date of Termination or, if higher, the fiscal year in which
occurs the first event or circumstance constituting Good Reason.
(G) For the six (6) month period immediately
following the Date of Termination, the Company shall provide the Executive with
the use of any Company provided automobile on the same terms and conditions that
were applicable immediately prior to the Date of Termination or, if more
favorable, immediately prior to the first occurrence of an event or circumstance
constituting Good Reason.
6.2 (A) Whether or not the Executive becomes entitled to the
Severance Payments, if any of the payments or benefits received or to be
received by the Executive in connection with a Change in Control or the
Executive's termination of employment (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the Company, any
Person whose actions result in a Change in Control or any Person affiliated with
the Company or such Person) (such payments or benefits, excluding the Gross-Up
Payment, being hereinafter referred to as the "Total Payments") will be subject
to the Excise Tax, the Company shall pay to the Executive an additional amount
(the "Gross-Up Payment") such that the net amount retained by the Executive,
after deduction of any Excise Tax on the Total Payments and any federal, state
and local income and employment taxes and Excise Tax upon the Gross-Up Payment,
shall be equal to the Total Payments.
(B) For purposes of determining whether any of the
Total Payments will be subject to the Excise Tax and the amount of such Excise
Tax, (i) all of the Total Payments shall be treated as "parachute payments"
(within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of
tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected
by the accounting firm which was, immediately prior to the Change in Control,
the Company's independent auditor (the "Auditor"), such payments or benefits (in
whole or in part) do not constitute parachute payments, including by reason of
section 280G(b)(4)(A) of the Code, (ii) all "excess parachute
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payments" within the meaning of section 280G(b)(l) of the Code shall be treated
as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess
parachute payments (in whole or in part) represent reasonable compensation for
services actually rendered (within the meaning of section 280G(b)(4)(B) of the
Code) in excess of the Base Amount allocable to such reasonable compensation, or
are otherwise not subject to the Excise Tax, and (iii) the value of any noncash
benefits or any deferred payment or benefit shall be determined by the Auditor
in accordance with the principles of sections 280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up Payment, the Executive
shall be deemed to pay federal income tax at the highest marginal rate of
federal income taxation in the calendar year in which the Gross-Up Payment is to
be made and state and local income taxes at the highest marginal rate of
taxation in the state and locality of the Executive's residence on the Date of
Termination (or if there is no Date of Termination, then the date on which the
Gross-Up Payment is calculated for purposes of this Section 6.2), net of the
maximum reduction in federal income taxes which could be obtained from deduction
of such state and local taxes.
(C) In the event that the Excise Tax is finally
determined to be less than the amount taken into account hereunder in
calculating the Gross-Up Payment, the Executive shall repay to the Company,
within five business days following the time that the amount of such reduction
in the Excise Tax is finally determined, the portion of the Gross-Up Payment
attributable to such reduction (plus that portion of the Gross-Up Payment
attributable to the Excise Tax and federal, state and local income and
employment taxes imposed on the Gross-Up Payment being repaid by the Executive),
to the extent that such repayment results in a reduction in the Excise Tax and a
dollar-for-dollar reduction in the Executive's taxable income and wages for
purposes of federal, state and local income and employment taxes, plus interest
on the amount of such repayment at 120% of the rate provided in section
1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to
exceed the amount taken into account hereunder in calculating the Gross-Up
Payment (including by reason of any payment the existence or amount of which
cannot be determined at the time of the Gross-Up Payment), the Company shall
make an additional Gross-Up Payment in respect of such excess (plus any
interest, penalties or additions payable by the Executive with respect to such
excess) within five business days following the time that the amount of such
excess is finally determined. The Executive and the Company shall each
reasonably cooperate
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with the other in connection with any administrative or judicial proceedings
concerning the existence or amount of liability for Excise Tax with respect to
the Total Payments.
6.3 The payments provided in subsections (A), (D) and (E) of
Section 6.1 hereof and in Section 6.2 hereof shall be made not later than the
fifth day following the Date of Termination; provided, however, that if the
amounts of such payments cannot be finally determined on or before such day, the
Company shall pay to the Executive on such day an estimate, as determined in
good faith by the Executive or, in the case of payments under Section 6.2
hereof, in accordance with Section 6.2 hereof, of the minimum amount of such
payments to which the Executive is clearly entitled and shall pay the remainder
of such payments (together with interest on the unpaid remainder (or on all such
payments to the extent the Company fails to make such payments when due) at 120%
of the rate provided in section 1274(b)(2)(B) of the Code) as soon as the amount
thereof can be determined but in no event later than the 30th day after the Date
of Termination. In the event that the amount of the estimated payments exceeds
the amount subsequently determined to have been due, such excess shall
constitute a loan by the Company to the Executive, payable on the fifth business
day after demand by the Company (together with interest at 120% of the rate
provided in section 1274(b)(2)(B) of the Code). At the time that payments are
made under this Agreement, the Company shall provide the Executive with a
written statement setting forth the manner in which such payments were
calculated and the basis for such calculations including, without limitation,
any opinions or other advice the Company has received from Tax Counsel, the
Auditor or other advisors or consultants (and any such opinions or advice which
are in writing shall be attached to the statement).
6.4 The Company also shall pay to the Executive all legal fees
and expenses incurred by the Executive in disputing in good faith any issue
hereunder relating to the termination of the Executive's employment, in seeking
in good faith to obtain or enforce any benefit or right provided by this
Agreement or in connection with any tax audit or proceeding to the extent
attributable to the application of section 4999 of the Code to any payment or
benefit provided hereunder. Such payments shall be made within five business
days after delivery of the Executive's written requests for payment accompanied
with such evidence of fees and expenses incurred as the Company reasonably may
require.
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7. Termination Procedures and Compensation During Dispute.
7.1. Notice of Termination. After a Change in Control and
during the Term, any purported termination of the Executive's employment (other
than by reason of death) shall be communicated by written Notice of Termination
from one party hereto to the other party hereto in accordance with Section 10
hereof. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated. Further, a Notice of Termination for Cause is
required to include a copy of a resolution duly adopted by the affirmative vote
of not less than three-quarters (3/4) of the entire membership of the Board at a
meeting of the Board which was called and held for the purpose of considering
such termination (after reasonable notice to the Executive and an opportunity
for the Executive, together with the Executive's counsel, to be heard before the
Board) finding that, in the good faith opinion of the Board, the Executive was
guilty of conduct set forth in clause (i) or (ii) of the definition of Cause
herein, and specifying the particulars thereof in detail.
7.2 Date of Termination. "Date of Termination," with respect
to any purported termination of the Executive's employment after a Change in
Control and during the Term, shall mean (i) if the Executive's employment is
terminated for Disability, 30 days after Notice of Termination is given
(provided that the Executive shall not have returned to the full-time
performance of the Executive's duties during such 30 day period), and (ii) if
the Executive's employment is terminated for any other reason, the date
specified in the Notice of Termination (which, in the case of a termination by
the Company, shall not be less than 30 days (except in the case of a termination
for Cause) and, in the case of a termination by the Executive, shall not be less
than 15 days nor more than 60 days, respectively, from the date such Notice of
Termination is given).
7.3 Dispute Concerning Termination. If within 15 days after
any Notice of Termination is given, or, if later, prior to the Date of
Termination (as determined without regard to this Section 7.3), the party
receiving such Notice of Termination notifies the other party that a dispute
exists concerning the termination, the Date of Termination shall be extended
until the earlier of (i)
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the date on which the Term ends or (ii) the date on which the dispute is finally
resolved, either by mutual written agreement of the parties or by a final
judgment, order or decree of an arbitrator or a court of competent jurisdiction
(which is not appealable or with respect to which the time for appeal therefrom
has expired and no appeal has been perfected); provided, however, that the Date
of Termination shall be extended by a notice of dispute given by the Executive
only if such notice is given in good faith and the Executive pursues the
resolution of such dispute with reasonable diligence.
7.4 Compensation During Dispute. If a purported termination
occurs following a Change in Control and during the Term and the Date of
Termination is extended in accordance with Section 7.3 hereof, the Company shall
continue to pay the Executive the full compensation in effect when the notice
giving rise to the dispute was given (including, but not limited to, salary) and
continue the Executive as a participant in all compensation, benefit and
insurance plans in which the Executive was participating when the notice giving
rise to the dispute was given, until the Date of Termination, as determined in
accordance with Section 7.3 hereof. Amounts paid under this Section 7.4 are in
addition to all other amounts due under this Agreement (other than those due
under Section 5.2 hereof) and shall not be offset against or reduce any other
amounts due under this Agreement.
8. No Mitigation. The Company agrees that, if the Executive's
employment with the Company terminates during the Term, the Executive is not
required to seek other employment or to attempt in any way to reduce any amounts
payable to the Executive by the Company pursuant to Section 6 hereof or Section
7.4 hereof. Further, the amount of any payment or benefit provided for in this
Agreement (other than Section 6.1(B) hereof) shall not be reduced by any
compensation earned by the Executive as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by the Executive to the Company, or otherwise.
9. Successors; Binding Agreement.
9.1 In addition to any obligations imposed by law upon any
successor to the Company, the Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
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assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Failure of the Company to obtain such assumption and agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company in
the same amount and on the same terms as the Executive would be entitled to
hereunder if the Executive were to terminate the Executive's employment for Good
Reason after a Change in Control, except that, for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination.
9.2 This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive shall die while any amount would still be payable to the Executive
hereunder (other than amounts which, by their terms, terminate upon the death of
the Executive) if the Executive had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the executors, personal representatives or administrators of the
Executive's estate.
10. Notices. For the purpose of this Agreement, notices and
all other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid, addressed, if
to the Executive, to the address inserted below the Executive's signature on the
final page hereof and, if to the Company, to the address set forth below, or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon actual receipt:
To the Company:
Visteon Corporation
10th Floor
Fairline Plaza North
000 Xxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
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11. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and such officer as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or of any lack of compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. This Agreement supersedes any
other agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof which have been made by either party;
provided, however, that this Agreement shall supersede any agreement setting
forth the terms and conditions of the Executive's employment with the Company
only in the event that the Executive's employment with the Company is terminated
on or following a Change in Control, by the Company other than for Cause or by
the Executive other than for Good Reason. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Delaware. All references to sections of the Exchange Act or the
Code shall be deemed also to refer to any successor provisions to such sections.
Any payments provided for hereunder shall be paid net of any applicable
withholding required under federal, state or local law and any additional
withholding to which the Executive has agreed. The obligations of the Company
and the Executive under this Agreement which by their nature may require either
partial or total performance after the expiration of the Term (including,
without limitation, those under Sections 6 and 7 hereof) shall survive such
expiration.
12. Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
13. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Settlement of Disputes. All claims by the Executive for
benefits under this Agreement shall be directed to and determined by the Board
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and shall be in writing. Any denial by the Board of a claim for benefits under
this Agreement shall be delivered to the Executive in writing and shall set
forth the specific reasons for the denial and the specific provisions of this
Agreement relied upon. The Board shall afford a reasonable opportunity to the
Executive for a review of the decision denying a claim and shall further allow
the Executive to appeal to the Board a decision of the Board within 60 days
after notification by the Board that the Executive's claim has been denied.
15. Definitions. For purposes of this Agreement, the following
terms shall have the meanings indicated below:
(A) "Affiliate" shall have the meaning set forth in
Rule 12b-2 promulgated under Section 12 of the Exchange Act.
(B) "Auditor" shall have the meaning set forth in
Section 6.2 hereof.
(C) "Base Amount" shall have the meaning set forth in
section 280G(b)(3) of the Code.
(D) "Beneficial Owner" shall have the meaning set
forth in Rule 13d-3 under the Exchange Act.
(E) "Board" shall mean the Board of Directors of the
Company.
(F) "Cause" for termination by the Company of the
Executive's employment shall mean (i) the willful and continued failure by the
Executive to substantially perform the Executive's duties with the Company
(other than any such failure resulting from the Executive's incapacity due to
physical or mental illness or any such actual or anticipated failure after the
issuance of a Notice of Termination for Good Reason by the Executive pursuant to
Section 7.1 hereof) after a written demand for substantial performance is
delivered to the Executive by the Board, which demand specifically identifies
the manner in which the Board believes that the Executive has not substantially
performed the Executive's duties, or (ii) the willful engaging by the Executive
in conduct which is demonstrably and materially injurious to the Company or its
subsidiaries, monetarily or otherwise. For purposes of clauses (i) and (ii) of
this
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definition, (x) no act, or failure to act, on the Executive's part shall be
deemed "willful" unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that the Executive's act, or failure to
act, was in the best interest of the Company and (y) in the event of a dispute
concerning the application of this provision, no claim by the Company that Cause
exists shall be given effect unless the Company establishes to the Board by
clear and convincing evidence that Cause exists.
(G) "Change in Control" shall be deemed to have
occurred if the event set forth in any one of the following paragraphs shall
have occurred:
(I) any Person is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Company (not including in
the securities beneficially owned by such Person any securities acquired
directly from the Company or its affiliates) representing 40% or more of the
combined voting power of the Company's then outstanding securities, excluding
any Person who becomes such a Beneficial Owner in connection with a transaction
described in clause (a) of paragraph (III) below;
(II) within any twelve (12) month period,
the following individuals cease for any reason to constitute a majority of the
number of directors then serving: individuals who, on the Effective Date,
constitute the Board and any new director (other than a director whose initial
assumption of office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation, relating to the
election of directors of the Company) whose appointment or election by the Board
or nomination for election by the Company's shareholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors on the date hereof or whose appointment,
election or nomination for election was previously so approved or recommended;
(III) there is consummated a merger or
consolidation of the Company or any direct or indirect subsidiary of the Company
with any other corporation, other than (a) a merger or consolidation which
results in the directors of the Company immediately prior to such merger or
consolidation continuing to constitute at least a majority of the board of
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directors of the Company, the surviving entity or any parent thereof or (b) a
merger or consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in the
securities Beneficially Owned by such Person any securities acquired directly
from the Company or its Affiliates) representing 40% or more of the combined
voting power of the Company's then outstanding securities;
(IV) the shareholders of the Company approve
a plan of complete liquidation or dissolution of the Company or there is
consummated an agreement for the sale or disposition by the Company of more than
50% of the Company's assets, other than a sale or disposition by the Company of
more than 50% of the Company's assets to an entity, at least 50% of the combined
voting power of the voting securities of which are owned by shareholders of the
Company in substantially the same proportions as their ownership of the Company
immediately prior to such sale; or
(V) any other event that the Board, in its
sole discretion, determines to be a Change in Control for purposes of this
Agreement.
Notwithstanding the foregoing, a "Change in Control" shall not be
deemed to have occurred by virtue of the consummation of any transaction or
series of integrated transactions immediately following which the record holders
of the common stock of the Company immediately prior to such transaction or
series of transactions continue to have substantially the same proportionate
ownership in an entity which owns all or substantially all of the assets of the
Company immediately following such transaction or series of transactions.
(H) "Code" shall mean the Internal Revenue Code of
1986, as amended from time to time.
(I) "Company" shall mean Visteon Corporation, a
Delaware corporation, and, except in determining under Section 15(G) hereof
whether or not any Change in Control of the Company has occurred, shall include
any successor to its business and/or assets which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
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(J) "Date of Termination" shall have the meaning set
forth in Section 7.2 hereof.
(K) "Disability" shall be deemed the reason for the
termination by the Company of the Executive's employment, if, as a result of the
Executive's incapacity due to physical or mental illness, the Executive shall
have been absent from the full-time performance of the Executive's duties with
the Company for a period of six consecutive months, the Company shall have given
the Executive a Notice of Termination for Disability, and, within 30 days after
such Notice of Termination is given, the Executive shall not have returned to
the full-time performance of the Executive's duties.
(L) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended from time to time.
(M) "Excise Tax" shall mean any excise tax imposed
under section 4999 of the Code.
(N) "Executive" shall mean the individual named in
the first paragraph of this Agreement.
(O) "Good Reason" for termination by the Executive of
the Executive's employment shall mean the occurrence (without the Executive's
express written consent) after any Change in Control, or prior to a Change in
Control under the circumstances described in clauses (ii) and (iii) of the
second sentence of Section 6.1 hereof (treating all references in paragraphs (I)
through (VI) below to a "Change in Control" as references to a "Potential Change
in Control"), of any one of the following acts by the Company, or failures by
the Company to act, unless, in the case of any act or failure to act described
in paragraph (I), (IV), or (V) below, such act or failure to act is corrected
prior to the Date of Termination specified in the Notice of Termination given in
respect thereof:
(I) the assignment to the Executive of any
duties inconsistent with the Executive's status as a senior executive officer of
the Company or a material adverse alteration in the nature or status of the
Executive's responsibilities from those in effect immediately prior to the
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Change in Control (including, without limitation, the Executive ceasing to be an
executive officer of a public company);
(II) a reduction by the Company in the
Executive's annual base salary as in effect on the date hereof or as the same
may be increased from time to time, except for across-the-board salary
reductions similarly affecting all senior executives of the Company and all
senior executives of any Person in control of the Company;
(III) the relocation of the Executive's
principal place of employment to a location more than 50 miles from the
Executive's principal place of employment immediately prior to the Change in
Control or the Company's requiring the Executive to be based anywhere other than
such principal place of employment (or permitted relocation thereof) except for
required travel on the Company's business to an extent substantially consistent
with the Executive's present business travel obligations;
(IV) the failure by the Company to pay to
the Executive any portion of the Executive's current compensation, or to pay to
the Executive any portion of an installment of deferred compensation under any
deferred compensation program of the Company, within seven days of the date such
compensation is due;
(V) the failure by the Company to continue
to provide the Executive with benefits substantially similar to the material
benefits enjoyed by the Executive under any of the Company's executive
compensation (including bonus, equity or incentive compensation), pension,
savings, life insurance, medical, health and accident, or disability plans in
which the Executive was participating immediately prior to the Change in Control
(except for across the board changes similarly affecting all senior executives
of the Company and all senior executives of any Person in control of the
Company), the taking of any other action by the Company which would directly or
indirectly materially reduce any of such benefits or deprive the Executive of
any material fringe benefit enjoyed by the Executive at the time of the Change
in Control, or the failure by the Company to provide the Executive with the
number of paid vacation days to which the Executive is entitled on the basis of
years of service with the Company in accordance with the Company's normal
vacation policy in effect at the time of the Change in Control; or
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(VI) any purported termination of the
Executive's employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 7.1 hereof; for purposes of this
Agreement, no such purported termination shall be effective.
The Executive's right to terminate the Executive's employment for Good
Reason shall not be affected by the Executive's incapacity due to physical or
mental illness. The Executive's continued employment shall not constitute
consent to, or a waiver of rights with respect to, any act or failure to act
constituting Good Reason hereunder. For purposes of any determination regarding
the existence of Good Reason, any claim by the Executive that Good Reason exists
shall be presumed to be correct unless the Company establishes to the Board by
clear and convincing evidence that Good Reason does not exist.
(P) "Gross-Up Payment" shall have the meaning set
forth in Section 6.2 hereof.
(Q) "Notice of Termination" shall have the meaning
set forth in Section 7.1 hereof.
(R) "Person" shall have the meaning given in Section
3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d)
thereof, except that such term shall not include (i) the Company or any of its
subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Affiliates, (iii) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
(S) "Potential Change in Control" shall be deemed to
have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
(I) the Company enters into an agreement,
the consummation of which would result in the occurrence of a Change in Control;
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(II) the Company or any Person publicly
announces an intention to take or to consider taking actions which, if
consummated, would constitute a Change in Control;
(III) any Person becomes the Beneficial
Owner, directly or indirectly, of securities of the Company representing 15% or
more of either the then outstanding shares of common stock of the Company or the
combined voting power of the Company's then outstanding securities (not
including in the securities beneficially owned by such Person any securities
acquired directly from the Company or its affiliates); or
(IV) the Board adopts a resolution to the
effect that, for purposes of this Agreement, a Potential Change in Control has
occurred.
(T) "Retirement" shall be deemed the reason for the
termination by the Executive of the Executive's employment if such employment is
terminated in accordance with the Company's retirement policy, including early
retirement, generally applicable to its salaried employees.
(U) "Severance Payments" shall have the meaning set
forth in Section 6.1 hereof.
(V) "Tax Counsel" shall have the meaning set forth in
Section 6.2 hereof.
(W) "Term" shall mean the period of time described in
Section 2 hereof (including any extension, continuation or termination described
therein).
(X) "Total Payments" shall mean those payments so
described in Section 6.2 hereof.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement to be effective as of the Effective Date.
VISTEON CORPORATION
By:
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Name:
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Title:
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EXECUTIVE
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Address:
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