EXHIBIT 10.2
PURCHASE AND SUPPLY AGREEMENT
BETWEEN
VISTEON CORPORATION
AND
FORD MOTOR COMPANY
December 19, 2003
PURCHASE AND SUPPLY AGREEMENT
This Purchase and Supply Agreement ("Agreement") dated as of December 19, 2003
(the "Effective Date") is entered into by and between Visteon Corporation, a
Delaware corporation ("Visteon"), and Ford Motor Company ("Ford"), a Delaware
corporation. Each of Ford and Visteon is herein referred to as a "Party" and
collectively, the "Parties."
RECITALS
X. Xxxx and Visteon entered into a Purchase and Supply Agreement dated as
of January 1, 2000 (the "Original Agreement") covering the purchase from Visteon
and supply to Ford and its subsidiaries and affiliates worldwide of motor
vehicle-related components and systems.
B. The Panics intend to terminate the Original Agreement as to all
Components and to substitute this Agreement for the Original Agreement as to
such Components.
C. It is the intent of this Agreement that Visteon and Ford achieve the
following common goals:
- that Visteon achieves the goal of becoming a profitable and
growing business and remains a top quality supplier to Ford;
- that Ford achieve competitive price reductions and
competitive prices from Visteon over time, contributing to
Ford's profitable growth;
- that Ford and Visteon work collaboratively to meet the
commitments made in the Master Agreement; and
- that Ford and Visteon establish a basic framework for
working cooperatively on their ongoing commercial
relationship.
The Parties acknowledge that Visteon must achieve and maintain competitiveness
as described in this Agreement in order for it to become profitable and grow,
and in order for Ford and others to be able to source Visteon with products.
While no specific targets for maintenance of Existing Business or sourcing of
New Business have been established herein, the Parties acknowledge that Visteon
needs to grow its business from non-Ford customers and maintain sufficient
sourcing from Ford to support the business objectives of both Parties.
D. The Parties are entering into this Agreement in good faith anticipating
that the parties will achieve the intentions set forth above. If, during the
term of this Agreement, it appears that the intentions of the Parties as
described above are not being, or are not likely to be, met in some material
respect or that the financial results of either Party resulting from
implementation of this Agreement are materially different from the financial
results anticipated by the Parties, then the Parties will discuss in good faith
the underlying reasons and present an analysis and recommendations for any
actions to be taken to the Governance Council; provided, however, that neither
Party shall be obligated to take any action as a result thereof.
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement and intending to be legally bound, Visteon and Ford agree:
1. DEFINED TERMS
1.1 All terms with initial capitalization used herein shall have the
following definitions unless specifically stated otherwise.
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"AAI" means AutoAlliance International, Inc.
"AFFILIATE" means any Person directly or indirectly Controlling, Controlled by,
or under common Control with, such Person. For purposes of this definition, the
terms Control, Controlling, and Controlled mean having the right to elect a
majority of the board of directors or other comparable body responsible for
management and direction of a Person by contract or by virtue of share
ownership.
"ANNUAL VOLUME" has the meaning specified in Section 6.1.
"CAPITAL INVESTMENT" has the meaning specified in Section 8.1.
"COMMODITY GROUP" means the groups of commodities listed on Exhibit IA attached
hereto. Ford may modify such list from time to time. The commodities that are
included in each Commodity Group will be determined by Ford.
"COMPETITIVE" means a Visteon quote that, excluding the Labor Differential
Uplift and any investment sharing pursuant to Article 8, is equal to or better
than that of the supplier to which the business would be awarded if Visteon were
not awarded the business; provided that comparisons of quotes will be with other
full service suppliers where Visteon is being asked to act as a full service
supplier and comparisons should be made on a systems or component basis
consistent with how Visteon has been asked to quote. Factors to be considered in
the determination of Competitiveness include, but are not limited to, Price
Competitiveness, quality, warranty costs, service, delivery and
design/technology. These requirements are consistent with those to which other
comparable suppliers are held when sourcing decisions are being made.
"COMPETITIVE BID MINUTES" has the meaning specified in Section 6.1.
"COMPETITIVE GAP" has the meaning specified in Section 4.1.
"COMPETITIVE GAP CLOSURE PLAN" has the meaning specified in Section 4.1.
"COMPONENTS" means motor-vehicle-related parts, components and systems that are
produced by Visteon or its wholly-owned subsidiaries (or its Affiliates to the
extent production comes from Master Agreement Plants(1)) in North America that
are shipped directly to Ford facilities in North America or to AAI for use in
vehicles that are sold under the Ford, Lincoln or Mercury brand. In addition to
the above, for purposes of Articles 3 and 6 only, the term "Components" shall
include all motor vehicle related parts, components and systems produced by
Visteon in North America that are supplied by Visteon to Ford Tier 1 Suppliers
where such components are sold to Ford or its wholly-owned subsidiaries for use
in Ford, Lincoln and Mercury-branded vehicles.
Notwithstanding anything to the contrary in the foregoing paragraph, parts,
components and systems that are (i) produced by Visteon Affiliates (other than
its wholly-owned subsidiaries) from facilities that are not Master Agreement
Plants or (ii) are covered by the FCSD Agreement, are not considered
"Components"; provided that to the extent that the purchase and supply of
Service Parts (as that term is defined in the FCSD Agreement) are governed by
the Original Agreement pursuant to Section 1 of the FCSD Agreement, then such
Service Parts shall be deemed "Components" under this Agreement and the Original
Agreement shall no longer govern the purchase and supply such Service Parts.
-------------------------
(1) For avoidance of doubt, as of the Effective Date, there are no Visteon
Affiliates who produce Components from Master Agreement Plants.
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"CONFIDENTIAL INFORMATION" has the meaning specified in Section 17.1.
"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 15.1.
"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.
"EFFECTIVE DATE" means the date of this Agreement as specified in the opening
paragraph of this Agreement.
"EFFICIENT DIRECT LABOR HEADS" has the meaning specified in Section 6.1.
"EFFICIENT INDIRECT LABOR HEADS" has the meaning specified in Section 6.1.
"EFFICIENT XXXXXXX" has the meaning specified in Section 6.1.
"EVENT OF DEFAULT" has the meaning specified in Section 15.1.
"EXCUSABLE DELAY" means a delay or failure to perform directly due to an
Excusable Event. An "EXCUSABLE EVENT" is a cause or event beyond the reasonable
control of a party that is not attributable to its fault or negligence.
Excusable Events include fire, flood, earthquake, and other extreme natural
events, acts of God, riots, civil disorders, labor problems (including strikes,
lockouts, and slowdowns regardless of their lawfulness), and war or acts of
terrorism whether or not declared as such by a government. In every case, other
than those relating to labor problems, the failure to perform must be beyond the
reasonable control, and not attributable to the fault or negligence, of the
party claiming the Excusable Event. Excusable Events also include delays or
non-performance of a subcontractor, agent or supplier of a party only if and
only to the extent that the cause or event would be an Excusable Event as
defined herein. Excusable Events do not include the failure to comply with
applicable law or to take actions reasonably necessary to schedule performance
in anticipation of any customs, export-import, or other government requirement
of which public notice has been given.
"EXISTING BUSINESS" means all Components that are the subject of an Existing
Agreement.
"EXISTING AGREEMENTS" means all Purchase Orders, Long Term Supply Agreements,
Target Agreements, and Sourcing Agreements with Pricing in existence as of the
Effective Date entered into by Ford and its applicable Affiliates and by Visteon
with respect to Components.
"EXISTING VEHICLE" means a vehicle using Components that is produced by Ford or
one of its Affiliates in North America or, if Ford, Lincoln or Mercury-branded,
by AAI, that is in existence as of the Effective Date.
"FCSD AGREEMENT" means that certain Relationship Agreement dated as of January
1, 2000 between Automotive Consumer Services Group of Ford (now known as Ford
Customer Services Division) and Visteon.
"FORD BUY TURNOVER" has the meaning specified in Section 3.1.
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"FORD CARRYOVER FROZEN TURNOVER" has the meaning specified in Section 3.1.
"FORD MASTER AGREEMENT WORKERS" has the meaning specified in Section 6.2.
"FORD TIER 1 SUPPLIER" means a supplier who directly provides goods and services
to Ford including (a) production and service parts, components, assemblies and
accessories; (b) raw materials; (c) tooling; and (d) design, engineering or
other services that are covered by the Global Terms.
"FORD'S COST OPTIMIZATION MODEL" has the meaning specified in Section 6.1.
"GEN" means Guaranteed Employment Number and refers to the program as agreed in
the Master Agreement.
"GEN ASSISTANCE PROGRAM" has the meaning specified in Section 7.2.
"GLOBAL TERMS" means the terms and conditions set forth in Ford's standard
purchase order (PPGTC January 1, 2004) and any revisions made by Ford to such
standard purchase order terms and conditions that are generally applicable to
Ford's suppliers.
"GOOD CAUSE" means:
(i) A demonstrable decline in quality, service or delivery of
Visteon's Components, or a Commodity Group in general, as
identified either in accordance with the applicable Purchase
Order(s) or then-current Q1 revocation thresholds; or
(ii) The ability of Ford to substitute supplies of significantly
advanced design, technology and/or processing (as determined
by Ford's Product Development activity); or
(iii) An upward re-pricing on the applicable Component, excluding
mutually agreed price increases related to (a) approved design
changes as permitted under Section 5.1 or (b) other mutually
agreed reasons; or
(iv) default, within the prior twelve months, of a commitment by
Visteon to adhere to a Competitive Gap Closure Plan for a
given Component or Commodity Group. Such commitments will be
in writing. The Existing Business on which the Parties have
agreed as of the Effective Date to a Competitive Gap Closure
Plan is listed on Exhibit 3.1 hereto; or
(v) Material default by Visteon under the terms of a Purchase
Order.
"GOVERNANCE COUNCIL" means the Governance Council established pursuant to the
Relationship Agreement.
"INCREMENTAL NEW BUSINESS" means all New Business that is not defined as
Replacement New Business.
"LABOR DIFFERENTIAL" means the cost differential incurred by paying Ford Master
Agreement Workers, at Efficient Xxxxxxx levels, at Master Agreement Wage Rates
rather than Supplier UAW Wage Rates.
"LABOR DIFFERENTIAL UPLIFT" means the amount reimbursed by Ford to Visteon to
compensate it for the Labor Differential, which amount is calculated pursuant to
the formula set forth in Section 6.1.
"LONG TERM SUPPLY AGREEMENT" means a multiple-year contract with a supplier
committing Ford 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.
"MASTER AGREEMENT JOB #1 ECONOMICS" has the meaning specified in Section 6.1.
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"MASTER AGREEMENT PLANT" means a Visteon facility, including a Visteon
Affiliate's facility, where some or all of its hourly employees are represented
by the UAW under the Master Agreement.
"MASTER AGREEMENT WAGE RATE/MASTER AGREEMENT WAGES" has the meaning specified in
Section 6.1.
"MASTER TRANSFER AGREEMENT" means that certain Master Transfer Agreement dated
as of March 30, 2000 between the Parties.
"MASTER TRANSFER AGREEMENTS" means the following agreements between the Parties:
Master Transfer Agreement, the Master Separation Agreement dated June 1, 2000,
the Information Technology Services Agreement dated as of June 27, 2000, the
Software and Information Technology License Agreement effective September 2,
2003, and the Relationship Agreement dated January 1, 2000 between the
Automotive Consumer Services Group (now Ford Customer Services Division) of Ford
and Visteon.
"NEW BUSINESS" means all Components put up for award by Ford or a North American
Affiliate of Ford to Visteon between the Effective Date and December 31, 2007
that are not covered by an Existing Agreement.
"NEW BUSINESS AGREEMENTS" means all Purchase Orders, Long Term Supply
Agreements, Target Agreements, and Sourcing Agreements with Pricing and similar
agreements entered into by Ford and its applicable Affiliates and Visteon with
respect to New Business between the Effective Date and December 31, 2007.
"NEW VISTEON CBA AND SUPPLEMENT" means the new collective bargaining agreement
and supplement presently under negotiation between the UAW and Visteon that is
intended to provide wage and benefit levels that meet those of an appropriate,
representative group of UAW-represented employers in the U.S. automotive
component and truck component industry.
"NON-DEFAULTING PARTY" has the meaning specified in Section 15.1.
"NORTH AMERICA" means Canada, Mexico and the United States.
"NORTH AMERICAN SOURCING COUNCIL" means a process to ensure that Ford honors
commitments to Ford Master Agreement Workers at Ford or Visteon 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.
"ORIGINAL AGREEMENT" has the meaning specified in Recital A.
"OTHER GOOD BUSINESS REASONS" means all good business reasons, as determined by
Ford (for example the strategic need for component commonality or supplier
diversification within a commodity); provided that cancellation of a vehicle
program, Excusable Delay and Good Cause are not Other Good Business Reasons.
"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.
"PRICE COMPETITIVE" means competitive in price elements, including, without
limitation, piece price, ongoing productivity pricing commitments, Competitive
Gap closure commitments for Commodities that are not
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listed on Exhibit 4.2, and other financial elements (e.g., tooling, price
reductions on other commodities or components); provided, however, that the
obligation of Ford, if any, to pay a Labor Differential Uplift or to share
capital investment costs pursuant to Article 8 with respect to a Component shall
not be considered when making a determination of Price Competitiveness.
"PRICE TEXTURING" has the meaning specified in Section 3.2.
"PRODUCTIVITY REQUIREMENTS" has the meaning specified in Section 3.1.
"PURCHASE ORDER" has the meaning specified in Section 10.1.
"PUT UP FOR AWARD" means the issuance of a Request for Quote by Ford.
"RELATIONSHIP AGREEMENT" means that certain 2003 Relationship Agreement dated as
of the date hereof between Visteon and Ford.
"REPLACEMENT NEW BUSINESS" means New Business that is put up for award to
Visteon between the Effective Date and December 31, 2007 that replaces Existing
Business awarded to Visteon before the Effective Date. Replacement New Business
may represent a new Component for an Existing Vehicle or a new or carry-over
Component for a new vehicle that will replace an Existing Vehicle. Ford Labor
Affairs will determine whether New Business is Replacement New Business or
Incremental New Business using the same process as has been used by Ford in
connection with its UAW collective bargaining agreements since the inception of
this concept in 1987, including the attributes and process described on Exhibit
IB.
"REQUEST FOR QUOTE" means a request issued by Ford to one or more suppliers to
provide a quotation for the supply of Components.
"SOURCE" means the awarding of a Target Agreement or a Sourcing Agreement with
Pricing as to a Component for an estimated program volume over a specified
number of years. The term "Source" does not include the issuance of a Sourcing
Agreement with Preliminary Targets.
"SOURCING AGREEMENT" means an agreement that may be entered into before a
Purchase Order is issued to advise the supplier that Ford intends to Source
goods or services to such supplier assuming that the requirements of the
Sourcing Agreement are met. There are two types of Sourcing Agreements: Sourcing
Agreements with Pricing and Sourcing Agreements with Preliminary Targets.
"SUPPLIER AGREEMENT JOB #1 ECONOMICS" has the meaning specified in Section 6.1.
"SUPPLIER UAW WAGE RATE/SUPPLIER UAW WAGES" has the meaning specified in Section
6.1.
"TARGET AGREEMENT" has the meaning specified in the Global Terms.
"TARGET AGREEMENTS TURNOVER" has the meaning specified in Section 3.1.
"TOTAL FROZEN TURNOVER" has the meaning specified in Section 3.1.
"TOTAL HOURLY WORKERS" has the meaning specified in Section 6.1.
"VISTEON WORKERS" has the meaning specified in Section 6.1.
"VISTEON WORKERS TO TOTAL HOURLY WORKERS RATIO" has the meaning specified in
Section 6.2.
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"WAGE DIFFERENTIAL" has the meaning specified in Section 6.1.
2. PURCHASE AND SUPPLY COMMITMENTS
2.1 Existing Agreements, (a) Subject only to the provisions of Sections 3
through 18, Visteon and Ford shall continue to honor the terms and conditions of
all Existing Agreements regarding the purchase and sale of Components.
(b) The Global Terms are incorporated herein and, except for Purchase
Orders that already incorporate an earlier version of the Global Terms, in the
Existing Agreements by this reference. Upon renewal of the term of any Purchase
Order that already incorporates an earlier version of the Global Terms, the
Global Terms shall apply. Except as provided in the two preceding sentences, in
the event of a conflict between the terms of an Existing Agreement and this
Agreement, then the terms of this Agreement shall control. The Parties agree
that in situations where the parties are silent with respect to the
applicability of all of the Global Terms, it shall be presumed that such terms
and conditions apply.
2.2 New Business. (a) With respect to New Business, except as set forth
herein. Ford shall treat Visteon in the same manner as it treats its other Ford
Tier 1 Suppliers with respect to Ford's general sourcing policies and practices,
including new purchasing and sourcing initiatives.
(b) All New Business that is awarded to Visteon will be governed by the
Global Terms, the applicable terms of this Agreement and any other specific
terms and conditions agreed to in writing by the applicable parties under which
that business is awarded.
(c) With respect to all Replacement New Business and Incremental New
Business and except as otherwise mutually agreed, Visteon will be included on
Ford's list of suppliers receiving Requests for Quotes, including Requests for
Quotations, design competitions and advanced technology development activities
unless Good Cause or Other Good Business Reasons exist to exclude Visteon. If
Ford elects not to include Visteon for Good Cause or Other Good Business
Reasons, then such election will be (i) reviewed with the Sourcing Council, if
required, and (ii) reviewed with the Governance Council. Where Ford asserts Good
Cause to exclude Visteon from Ford's list of suppliers as above, such assertion
of Good Cause must relate to substantially the same commodity. If a Component is
produced at more than one facility, then Good Cause cannot be used to preclude
Visteon from the bid list where the Good Cause being asserted is not relevant to
the facility in which the New Business will be produced.
(d) Where Visteon has been asked to quote, consistent with commitments made
to the UAW and Visteon to "look to Visteon first", Replacement New Business and
Incremental New Business will be awarded to Visteon if Visteon's quote is
Competitive. Ford's reasons for not awarding business to Visteon will be
reviewed as part of the ongoing Governance Council process.
(e) If Visteon, due to Other Good Business Reasons, is excluded from the
list of suppliers receiving a Request for Quote for (i) Replacement New
Business; or (ii) business put up for award between September 1 and the
Effective Date which business could have been Replacement New Business if it had
been put up for award after the Effective Date, then Ford will compensate
Visteon on account of such exclusion in accordance with the formula set forth on
Exhibit 10.1; provided that Ford may propose New Business to Visteon to replace
such business in which event, if Visteon is Sourced such New Business, then
Profit from the New Business will be used to offset compensation otherwise
payable under this Subsection 2.2(e).
(f) If Visteon is included in the list of suppliers receiving a Request for
Quote, but is not Sourced because it is not Competitive, then Visteon will not
be entitled to any compensation under Section 2.2(e).
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3. PRICING
3.1 Productivity Price Reductions. (a) Visteon has provided to Ford certain
productivity price reductions that are applicable to Components supplied by
Visteon to Ford in 2003. In addition to those reductions, Visteon shall rebate
to Ford in North America $150,000,000 in lieu of additional productivity price
reductions on Components supplied by Visteon to Ford in 2003. Such amount shall
be paid in immediately available funds in three installments of $50 million
each. The first installment shall be paid no later than December 31, 2003; the
second installment shall be paid on or before February 1, 2004; and the third
installment shall be paid on or before March 1, 2004.
(b) Visteon shall reduce the prices for all Components beginning January
1, 2004 and on each January 1 thereafter for a period of four years (through
2007) by the following percentages:
Calendar Year 2004 2005 2006 2007
--------------------------------------------------------------
Percentage * * * *
Reduction
For a given calendar year, the turnover against which these percentages shall be
applied shall be the "Ford Carryover Frozen Turnover", which turnover shall be
equal to the Total Frozen Turnover less the Target Agreement Turnover less the
Ford Buy Turnover. The Labor Differential Uplift will not be included in the
price of any Component, nor will it be included for purposes of calculating the
Ford Carryover Frozen Turnover. The following definitions shall apply to this
calculation:
"Total Frozen Turnover" shall be equal to the total projected sales of
Components by Visteon to Ford using Ford's budgeted volume, mix and rates
assumptions for the applicable calendar year; provided that Total Frozen
Turnover shall not include any Components described in Subsection 3.1(c).
"Target Agreement Turnover" means that portion of the Total Frozen Turnover for
Components that will be launched during the applicable calendar year where Ford
and Visteon have entered into signed Target Agreements.
"Ford Buy Turnover" means that portion of the Total Frozen Turnover for which
Ford has negotiated the price on behalf of Visteon. All productivity price
reductions negotiated by Ford with respect to such Components shall be passed on
in total to Ford by Visteon.
*Material has been omitted and confidential treatment has
been requested therefore. All such omitted material has
been filed separately with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934, as amended.
(c) Where Ford and Visteon agree in writing on different productivity price
reductions than those specified above, such separate agreements shall supercede
the provisions of Subsection 3.1(b) and all Components covered by such separate
agreements shall not be included in Total Frozen Turnover. Exhibit 3.1 is a list
of the Components for which separate agreements exist as of the date of this
Agreement.
(d) The productivity price reductions described in Section 3.1(b) are
referred to herein as the "Productivity Requirements."
3.2 Ford will consider Visteon's reasonable requests for Price Texturing by
Commodity Group and limited requests for Price Texturing within a Commodity
Group. Requests for Price Texturing by Component will be considered in rare
circumstances. Notwithstanding any Price Texturing, the total productivity price
reductions shall not be less than those calculated pursuant to Section 3.1
above. "Price Texturing" means the achievement of the Productivity Requirements
by applying different productivity price reductions to different Commodity
Groups, or to different commodities, or to different Components within a
commodity.
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3.3 The Parties will process the productivity price reductions applicable
to each Component on or before March 31 of the year in which the productivity
price reductions are to be applied; provided that if the productivity price
reductions are not so processed by March 31, then (i) all productivity price
reductions will nevertheless be retroactive to January 1 of the applicable year;
and (ii) if the productivity price reductions are not processed prior to the end
of any calendar quarter during the applicable year, Visteon shall pay to Ford a
lump sum equal to a reasonable estimate of the effect of the productivity price
reductions based on Visteon's shipments of Components to Ford 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 Visteon has made a lump sum payment for any
calendar quarter and Ford later receives a retroactive price adjustment, Ford
will reimburse Visteon any amounts that are charged twice to Visteon.
4. PRICE GAP CLOSURE
4.1 For purposes of defining price gap closure obligations, the following
definitions are provided:
"Competitive Gap Closure Plan" means, for purposes of this Agreement, a plan
agreed between Ford and Visteon to reduce or eliminate a Competitive Gap on
certain Existing Business through sharing the benefits from the application to
Existing Business of new designs, design principles, processing advances, new
manufacturing equipment or other advantages associated with New Business awarded
to Visteon; provided that the intent is not to reduce Visteon margins. From the
resulting benefits, Visteon will receive the greater of (i) 10% of the benefits
or (ii) the cost of any capital investment made by Visteon to achieve the
benefits. As a principle, Competitive Gap Closure Plans will be incremental to
productivity price reductions. If Visteon believes there is a valid basis for
modifying the application of the principle, on a case-by-case basis, then Ford
will consider the request and make a determination, in its reasonable judgment,
as to whether the application of the principle should be modified. Ford and
Visteon will inform the Governance Council of Ford's determination, as
applicable.
"Competitive Gap" means the gap between the price paid by Ford to Visteon for a
Component and the price at which Ford could obtain the same or substantially the
same Component (i.e., same functions, performance, and same level of
specifications) from another supplier under generally consistent circumstances
(e.g., volume., engineering support, etc.) and excluding the Labor Differential
Uplift and investment sharing pursuant to Article 8. The parties acknowledge
that the Competitive Gap can be positive (Visteon's price is better than
Competitive) or negative (Visteon's price being non-Competitive) with respect to
a given Component or commodity and can change over time. Upon Visteon's request,
Ford will provide to a mutually agreed independent third party, documentation
supporting the existence and extent of a Competitive Gap (as evidenced by a Ford
purchase order, market test, firm verifiable price quotation from another
similarly situated supplier, or other relevant information supplied by Ford).
The cost of the third party will be shared equally by the Parties.
4.2 (a) As a condition of awarding New Business to Visteon for
commodities other than those listed on Schedule 4.2 hereto, Visteon will
identify opportunities to reduce the price of Existing Business for the same or
similar Component to competitive levels, without reducing Visteon's margins on
the Existing Business, by applying the elements of a Competitive Gap Closure
Plan as described above. Such Competitive Gap Closure Plans will be provided to
Ford as soon as feasible, but in any event, no later than the earlier of (i) 60
days after the submission of a quote by Visteon or (ii) within 15 days prior to
the date on which a Sourcing decision will be made (of which date Visteon will
be notified). If Visteon is unable to provide a Competitive Gap Closure Plan
within the specified time period, Visteon shall provide to Ford such information
as Ford may reasonably request to support Visteon's inability to provide such a
Plan, and Ford will waive the requirement to provide a Competitive Gap Closure
Plan as a condition of being Sourced the applicable New
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Business if Visteon has demonstrated to Ford's satisfaction Visteon's inability
to provide such a plan; provided, however, that Visteon and Ford will agree on a
time period within which a Competitive Gap Closure Plan will be provided, with a
target of providing a plan within six months after such New Business is Sourced
to Visteon if Ford reasonably believes that additional time will enable Visteon
to provide a plan. The Parties also may agree that Visteon is unable to provide
a Competitive Gap Closure Plan with respect to a given Component or Commodity,
in which case the condition to award of New Business with respect to such
Component will be waived by Ford.
(b) For commodities listed on Exhibit 4.2, Visteon shall not be
required to prepare and deliver Competitive Gap Closure Plans on Existing
Business.
4.3 To help ensure the Parties that Visteon is advancing toward becoming a
profitable and growing supplier and that Ford is achieving competitive prices
over time, the provision and implementation of Competitive Gap Closure Plans,
and the results thereof, will be reviewed regularly with the Governance Council.
5. DESIGN CHANGES
5.1 Ford and Visteon will negotiate increases and decreases in prices of
Components for Design Changes in good faith. When a Ford vehicle program team
requests a Design Change, Visteon shall submit to the team a good faith estimate
of the change in the price of the Component that would result from such Design
Change, which estimate will be used by the program team to seek approval to make
the Design Change. Promptly after submitting its estimate, Visteon shall provide
documentation reasonably satisfactory to Ford to support the actual change to
the price of the Component resulting from the Design Change. The actual change
to the price to Ford for the Component resulting from the Design Change will be
negotiated after approval is received from the program team, but will not exceed
the original estimate of the change in price.
5.2 In support of good faith negotiation of changes to prices of Components
for Design Changes, Visteon will provide all documentation reasonably requested
by Ford to support quotes for price changes. In any event, Visteon shall provide
at least as much supporting documentation as is provided by other similarly
situated suppliers in connection with Design Changes.
6. LABOR DIFFERENTIAL
6.1 For all New Business Sourced to Visteon at Master Agreement Plants
using Ford Master Agreement Workers, Ford will pay during the period from
January 1, 2004 through December 31, 2007 a Labor Differential Uplift that will
be calculated as provided in the following formula, subject to the rules
specified in Section 6.2 and 6.3:
Labor Differential Uplift = Efficient Xxxxxxx * Wage Differential at
Job #1 Economics
Where Efficient Xxxxxxx is determined as follows:
Efficient Xxxxxxx = Efficient Direct Labor Heads plus Efficient
Indirect Labor Heads
Efficient Direct Labor Heads = Competitive Bid Minutes * Annual Volume
---------------------------------------
91,700
"Competitive Bid Minutes" means the average of the total direct labor
minutes contained in supplier responses to a Request for Quotation from
Ford's Purchasing group, based on a market test or, when
10
unavailable, an amount determined by Ford's Cost Optimization Model;
provided that if a supplier's quote contains minutes that vary
significantly (more than 25% higher or lower) than those of other
suppliers' quotes, such aberrant number of minutes shall be excluded
from the calculation. For the purpose of determining direct labor
minutes, the Cost Optimization Model will reflect the manufacturing
processes (not headcount or staffing) presently utilized by Visteon or,
as to Existing Business and New Business that is not yet in production,
the manufacturing processes consistent with those proposed in the
applicable quote.
"Annual Volume" means the calendar year vehicle volumes for the
affected Component as reported by Ford in the most recently published
Production Program Volume forecast.
Efficient Indirect Labor Heads = Efficient Direct Labor Heads * .33
And Wage Differential at Job #1 Economics is determined as follows:
Wage Differential at Job #1 Economics = Master Agreement Wage Rate -
Supplier UAW Wage Rate
"Master Agreement Wage Rate/Master Agreement Wages" means the wage
rate/wages (including fringe benefits) at Master Agreement Job #1
Economics agreed between Ford and the UAW in the Master Agreement
(constructed from the cost elements specified on Exhibit 6.1, utilizing
wage data provided by Ford).
"Supplier UAW Wage Rate/Supplier UAW Wages" means the average wage
rate/wages (including fringe benefits) at Supplier Job #1 Economics
agreed between Visteon and the UAW in the New Visteon CBA and
Supplement.
"Master Agreement Job #1 Economics" means cost increases contained in
the Master Agreement, where available, or Ford's economic forecast
(where Master Agreement economics are unavailable) in effect at
December 31st of the year prior to the calendar year of the product
launch. (e.g., If a product launch occurs in June 2006. Master
Agreement Job #1 Economics are the economics as of December 31.2005.)
"Supplier Job #1 Economics" means cost increases contained in the New
Visteon CBA and Supplement, where available, or Visteon's economic
forecast (where New Visteon CBA and Supplement economics are
unavailable) in effect at December 31st of the year prior to the
calendar year of the product launch. (e.g., If a product launch occurs
in June 2006, Supplier Job #1 Economics are the economics as of
December 31, 2005.)
6.2 (a) The Labor Differential Uplift will be determined utilizing Master
Agreement Job #1 Economics and Supplier Agreement Job #1 Economics. Ford will
absorb economics on the Labor Differential Uplift between the quote and Job #1,
and Visteon will absorb economics post Job #1.
(b) Each January, the current year Labor Differential Uplift will be
calculated for all programs that have existing Labor Differential Uplifts by
using the most recently published present year forecasted Annual Volumes. The
calculation will be in accordance with Section 6.1. For the avoidance of doubt,
the only variable to change from the original Labor Differential Uplift
calculation will be the Annual Volume as provided by Ford.
(c) The Labor Differential Uplift payable with respect to a particular
Component will be fixed for each calendar year (or partial calendar year) of
supply except that the Labor Differential Uplift may be adjusted if the number
of Ford Master Agreement Workers producing products receiving a Labor
Differential Uplift at
11
Master Agreement Plants is reduced due to a triggering of the GEN Assistance
Program. In addition to the annual recalculation of the Labor Differential
Uplift, whenever a GEN Assistance Program is triggered, the Labor Differential
Uplift will be recalculated using the most recent Annual Volumes in accordance
with Section 6.1. These adjustments will be effective on the first day of the
calendar quarter following the quarter in which the GEN Assistance Program is
triggered.
(d) The Labor Differential Uplift will not be included in the price of any
Component and will be paid in a lump sum, quarterly within 30 days after public
release of Ford's quarterly earnings.
(e) There will be no xxxx-ups on Labor Differential Uplift, including, but
not limited to, xxxx-ups to cover overhead or selling, general and
administrative expense.
(f) The Labor Differential Uplift will be excluded from the Ford Carryover
Frozen Turnover.
(g) The Labor Differential Uplift will cease if the number of Ford Master
Agreement Workers falls below 2,000 and, in any event, will cease on December
31, 2007; provided that, Ford will continue the payment of a Labor Differential
Uplift on a year-by-year basis after December 31, 2007 where Visteon and Ford
have agreed to competitive levels of productivity price reductions for the Ford
Carryover Frozen Turnover for such year. The Labor Differential Uplift will only
be continued as to those Components that were Sourced to Visteon between the
Effective Date and December 31, 2007 and which otherwise would qualify for the
Labor Differential Uplift pursuant to Section 6.1. For any Labor Differential
Uplift paid after December 31, 2007, the Labor Differential Uplift will be
reduced at the beginning of each calendar year by the Visteon Workers to Total
Hourly Workers Ratio at December 31 of the preceding calendar year. (Example: If
the actual Visteon Workers to Total Hourly Workers Ratio at year-end 2007 at an
affected Master Agreement Plant were 10% and Ford agreed to continue the Labor
Differential Uplift at such Master Agreement Plant, then the Labor Differential
Uplift would be reduced by 10% for 2008.)
The following terms used in this Subsection 6.2(g) are defined as follows:
"Total Hourly Workers" means the Visteon Workers plus the Ford Master Agreement
Workers at an affected Master Agreement Plant.
"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 Visteon plants.
"Visteon Workers" means the hourly employees (whether or not employed by
Visteon) who have replaced Ford Master Agreement Workers at a Master Agreement
Plant.
"Visteon Workers to Total Hourly Workers Ratio" means the percentage of Visteon
Workers who have replaced Ford Master Agreement Workers at an affected Master
Agreement Plant (formula is equal to Visteon Workers divided by the Total Hourly
Workers).
6.3 Where other Ford Tier 1 Suppliers are providing quotes from facilities
in countries that have significantly lower wage rates and Ford and Visteon agree
that Visteon cannot quote from a similar facility, then Ford will give due
consideration to an adjustment in the amount of any Labor Differential Uplift
that takes into consideration the lower wage rates, number of workers and other
relevant factors.
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7. GEN
7.1 (a) Through December 31, 2007, Ford will reimburse Visteon for the
Master Agreement Wages paid by Visteon to Ford for Ford Master Agreement Workers
who are placed in GEN as a result of Ford deciding for Other Good Business
Reasons to:
(i) exclude Visteon from Ford's list of suppliers receiving
Requests for Quotes, including Requests for Quotations, design
competitions and advanced technology development activities
for New Business; or
(ii) terminate or not renew any Purchase Order.
(b) All such reimbursements will be made quarterly within 30 days after receipt
of an invoice from Visteon together with supporting documentation reasonably
requested by Ford. The amount to be paid shall be equal to the lower of (i) the
Master Agreement Wages for the number of Ford Master Agreement Workers placed in
GEN due to the actions specified in Section 7.1 (a) for the applicable quarter;
and (ii) provided that if the number of Ford Master Agreement Workers in GEN at
the affected Master Agreement Plant is reduced at any time below the number used
in the preceding clause (i), then the amount to be paid shall be equal to the
Master Agreement Wages for such lower number of Ford Master Agreement Workers
for the applicable quarter. At such time as the number reaches zero, then Ford's
obligation to pay for Ford Master Agreement Workers in GEN shall cease as to the
particular action described in Subsection 7.1(a) above.
(c) All other GEN costs will be borne by Visteon.
7.2 (a) Ford and Visteon hereby establish a plan to implement GEN
Assistance Programs on a plant-by-plant basis with the cooperation and approval
of the UAW as follows:
(i) The GEN Assistance Programs are intended to supplement the
preferential placement guidelines in the Master Agreement, not
to replace them. Before a GEN Assistance Program is activated,
the ability to place Ford Master Agreement Workers at other
Ford or Visteon plants through the preferential placement
guidelines in the Master Agreement will be exhausted.
(ii) The Parties will cooperate in implementing the GEN Assistance
Programs and their costs will be shared equally. Unless the
Parties agree otherwise, (A) the aggregate cost of all GEN
Assistance Programs shall not exceed $100 million total ($50
million for each of Visteon and Ford) during any calendar
year; and (B) the aggregate cost of any particular GEN
Assistance Program shall not exceed $100 million ($50 million
for each of Visteon and Ford) over the lifetime of such GEN
Assistance Program.
(iii) Once the number of Ford Master Agreement Workers in GEN
exceeds 100 at any Master Agreement Plant and Ford determines
that the preferential placement guidelines in the Master
Agreement will not reduce such number significantly within 4
months, then subject to Subsection 7.2(a)(ii) Visteon and Ford
will initiate incentives to reduce or eliminate substantially
all of the Ford Master Agreement Workers in GEN at such Master
Agreement Plant. The incentives can include, without
limitation, buyouts, reloads, flow backs and other special
incentives such as special relocation programs. These
incentives are referred to herein as GEN Assistance Programs.
8. INVESTMENT SHARING
8.1 Ford will reimburse Visteon for one-half of any Capital Investment made
by Visteon during the period from January 1, 2004 through December 31, 2007 for
production of commodities listed on Exhibit 4.2 on the following terms and
conditions:
13
(a) The term "Capital Investment" means spending for facilities and
equipment used for the production of commodities listed on Exhibit 4.2 that are
recorded as assets on Visteon's books in accordance with U.S. GAAP consistently
applied; or as an expense in those instances where such spending cannot be
recorded as an asset because of asset impairment issues. The term
"Reimbursement" refers to the amount of the Capital Investment to be reimbursed
by Ford.
(b) Prior to making any commitment to a Capital Investment for which
Visteon would be eligible for Reimbursement, Visteon will provide details of
such Capital Investment to Ford and Ford must concur in writing with the
necessity, timing and amount of such Capital Investment. Visteon will provide
sufficient information, including access to the facility in which the Capital
Investment will be made, to allow Ford to evaluate the Capital Investment prior
to initiating the spending.
(c) Ford and its agents and representatives shall be given the opportunity
to audit the actual amount spent by Visteon on the Capital Investment.
(d) The obligation to reimburse Visteon for Capital Investments will apply
only to commodities listed on Exhibit 4.2 and only when the Capital Investment
will be used to purchase facilities or equipment in order to produce one or more
Components for Ford.
(e) For purposes of calculating the Reimbursement to Visteon, each Capital
Investment that qualifies for Reimbursement will be amortized over a period of
seven years, based on production volumes of the applicable Components. The
Reimbursement will be paid to Visteon in a lump sum on a quarterly basis.
Payment of the lump sum as to a particular Capital Investment will commence in
the calendar quarter following the date on which the asset or expense is fully
recorded on Visteon's books and full production of the applicable Componenthas
begun. Visteon accepts the risk that Reimbursement may not reach 50% of the
Capital Investment prior to any program cancellation or sourcing modification.
9. PAYMENT TERMS
9.1 The payment terms of all Existing Agreements shall remain unchanged as
to any payments for Components received during 2003. For Components received at
Ford facilities in the United States and for Tooling received at Visteon
facilities in the United States:
(a) For the period beginning January 1, 2004 through December 31,
2005, payment terms shall average 33 days after the entry date
of the Components or tooling. Prior to Visteon's participation
in the payment process portion of Ford's EVEREST payables
system, payments will be determined in the same manner as
determined in 2003, but with an average settlement of 33 days.
Upon Visteon participation in the payment process portion of
Ford's EVEREST system the payment terms shall be net 33 days
after the entry date of the Components or tooling.
(b) For the period beginning January 1, 2006 through December 31,
2006, payment terms shall be net 13th or 28th prox with an
average days payable of 35.5 days meaning that if the entry
date of Components or tooling occurs from the first day
through the 15th day of a month, payment will be made by the
13th of the following month and if the entry date of
Components or tooling occurs from the 16th day through the
last day of a month, payment will be made by the 28th of the
following month.
(c) Beginning January 1, 2007 through December 31, 2007, Visteon
will be paid in accordance with Ford's standard payment terms
in effect at that time.
14
9.2 All Components and tooling received at Ford facilities outside of the
United States will have the payment terms specified in the applicable Purchase
Order.
9.3 As used in this Article 9, the term "tooling" refers only to tooling
owned by Ford and funded by Ford in a lump sum (rather than in the piece price)
that is used for the production of Components and which is located in Visteon
facilities or Visteon's suppliers facilities in the United States.
10. RIGHT TO TERMINATE
10.1 (a) Ford may terminate or not renew its purchase obligations in whole
or in part under an Existing Agreement or New Business Agreement relating to a
given Component (each, a "Purchase Order") in accordance with the terms of such
Purchase Order, on account of Excusable Delay, program cancellation, for Good
Cause or for Other Good Business Reasons.
(b) If Ford is considering termination or non-renewal of a Purchase Order
for Good Cause or Other Good Business Reasons, Ford must (i) provide Visteon
with written notification at least three months prior to the termination or
non-renewal decision date, and (ii) inform the Governance Council of the
potential termination or non-renewal at the same time as notification is sent to
Visteon. Visteon may raise with the Governance Council its disagreement with
Ford's determination that Good Cause exists to terminate or not renew.
(c) After having received the written notification described in subsection
10. l(b) above, if Visteon demonstrates to Ford's satisfaction, at least one
month prior to the termination or non-renewal decision date, its ability to
correct, on or before the termination or non-renewal date or another date
acceptable to Ford, the issue that triggered the termination or non-renewal
notice, then Ford's decision to terminate or not renew the Purchase Order will
be suspended. Consistent with agreements with the UAW, Ford will collaborate
with Visteon and the UAW to correct quality and other issues.
(d) If a Purchase Order is terminated or not renewed for Good Cause, then
there will be no adjustment to the productivity price down percentages set forth
in Section 3.1(b) and Ford will not compensate Visteon as a result of such
termination or non-renewal.
(e) If during the term of any Purchase Order, Ford elects to terminate or
not renew a Purchase Order for Other Good Business Reasons, then Ford will
compensate Visteon in the manner set forth on Exhibit 10.1 as to Existing
Business, Replacement New Business and all Purchase Orders, Long Term Supply
Agreements, and, to the extent that a Purchase Order results therefrom, Target
Agreements and Sourcing Agreements with Pricing in existence as of September
1,2003 entered into by Ford on behalf of itself or its applicable Affiliates and
by Visteon or its applicable Affiliates with respect to Components; provided
that Ford may propose New Business to Visteon to replace the business terminated
or not renewed in which event, if Visteon is Sourced such New Business, then
Profit from the New Business will be used to offset compensation otherwise
payable under this Subsection 10.1(e).
(f) If during the term of any Purchase Order, Ford elects to terminate or
not renew a Purchase Order because of program cancellation or Excusable Delay,
then the terms of the applicable Purchase Order will govern the right to
notification, remediation and compensation, if any.
(g) Ford's right to terminate a Purchase Order as described in this Article
10 is without prejudice to either Party for any other right or remedy permitted
under this Agreement or the applicable Purchase Order, including, without
limitation, the right to recover Damages for default; provided, however, that to
the extent that Visteon is compensated pursuant to Subsection 10.1(e), then
Visteon's right to recover Damages under this Subsection 10.1(g) shall apply
only to the extent that Visteon has not already recovered such Damages through
the compensation paid under Subsection 10.1(e).
15
11. QUALITY IMPROVEMENT INITIATIVES
11.1 To insure a robust quality improvement process, Visteon will
participate in Ford quality improvement programs and Ford can require Visteon to
achieve reasonable increased quality standards, consistent with the requirements
for other Ford Tier 1 Suppliers, as they may exist from time to time. All
Visteon facilities that produce Components for Ford shall achieve and retain Ql
status and shall also maintain ISO9000 compliance during the terms of any
applicable Purchase Order.
11.2 Visteon will participate with Ford on its cost, warranty and customer
satisfaction improvement programs on all Components, whether covered by Existing
Agreements or New Business Agreements, including sharing the necessary
information requested by Ford, consistent with that required of other Ford Tier
1 Suppliers. The warranty sharing program in effect as of the Effective Date is
contained in that certain letter dated December 13, 2002 from Xx. Xxxx
Xxxxxxxxxx of Visteon to Mr. Xxx Xxxxxx of Ford.
12. TOOLING
12.1 Pursuant to the Master Transfer Agreement. Visteon owns certain
production tooling. Any tooling that is not governed by the Master Transfer
Agreement is governed by the Existing Agreements or New Business Agreements, as
applicable.
12.2 Use of Ford-owned tooling for the production of service and replacement
parts and other aftermarket applications is governed by the FCSD Agreement.
12.3 Except as permitted by the FCSD Agreement, Visteon shall not use
Ford-owned tooling to produce products for other customers if such tooling is
used to produce products for serial production for Ford; provided, however, that
Visteon shall be allowed to continue the use of such tooling to the extent
necessary to satisfy contracts in existence as of January 1, 2000 or extensions
of such contracts, where Visteon has previously used such tooling to produce
such products. Visteon will have the burden of establishing, upon Ford's
reasonable request, the existence of a binding contract with other customer(s)
and prior use of particular tooling for those specific customer(s) prior to
January 1, 2000. If Visteon is unable to establish such facts with respect to
particular tooling, Visteon will not have the right to use the applicable
tooling. Visteon agrees that it will not expand the use of any tooling described
in this Section to new products, new customers or new contracts, other than for
or with Ford unless otherwise agreed by Ford.
12.4 In the event that (i) any Excusable Delay prevents Visteon from
producing or delivering products, or (ii) Ford resources products to another
supplier as permitted under this Agreement, Visteon will permit Ford to take
possession of all tooling which is used to produce serial production parts for
Ford in accordance with the Global Terms; provided, however, that in the event
such tooling is being used by Visteon to produce products for other customers
(as permitted pursuant to Section 12.3 above, it being understood and agreed
that Visteon shall have the burden of proving such eligibility), Ford will to
the extent practicable, allow the new supplier to use such tooling to produce
products for sale to Visteon to permit Visteon to satisfy Visteon's pre-existing
contractual commitments to other customers. In no event xxxx Xxxx allow a new
supplier to use such tooling to satisfy Visteon's customers if the ability to
meet Ford's production needs would, in Ford's opinion, be jeopardized. As
appropriate, Ford will reimburse to Visteon its amortization for tooling that is
owned by Visteon and used by Ford under this Section 12.4.
12.5 Ford agrees to return to Visteon all tooling of which Ford obtains
possession as a result of an event constituting an Excusable Delay as promptly
as commercially reasonable under the circumstances, following the cessation of
that Excusable Delay event; provided, however, that Ford shall not be required
to return any
16
such tooling to Visteon until after Ford has satisfied any contractual
commitments that Ford may have made to other suppliers regarding products
produced from such tooling.
12.6 Nothing contained in this Article 12 shall be construed to restrict
Ford and Visteon from agreeing to Visteon's use of tooling beyond the specific
rights herein granted to the extent that Ford may in the future agree to expand
such rights with respect to Ford Tier 1 Suppliers generally.
13. PROCESS FOR VISTEON TO EXIT CERTAIN BUSINESSES
Visteon may sell or exit any of its business operations engaged in the
production of Components for Ford provided that Visteon first obtains any and
all necessary third party consents, including the consent of the UAW or any
other relevant labor organizations, and further provided that, notwithstanding
any such exit, sale or disposition, all of Visteon's obligations under this
Agreement or under any relevant Existing Agreement or New Business Agreement are
fully satisfied. Visteon shall provide to Ford adequate assurance of the
continued supply of affected Components on the same terms and conditions as are
applicable to such Components including, without limitation, this Agreement and
the applicable Purchase Orders, Target Agreements, Sourcing Agreements or Long
Term Supply Agreements, through the remaining life of the vehicle programs for
which the affected Components are supplied. Visteon will reasonably consider
Ford's input and concerns and Ford will cooperate in good faith with Visteon in
any restructuring actions, including exit of specific business operations.
14. RAW MATERIALS AND PURCHASED COMPONENTS
To the extent consistent with all applicable laws and regulations and
consistent with the terms of all Existing Agreements, Visteon will participate
in Ford's raw materials supply system or directed buy programs for raw materials
as amended from time to time, in the same manner as other Ford Tier 1 Suppliers.
15. DEFAULT
15.1. 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) Default by a Party. Any default by the Defaulting Party in the
performance of any obligation or in the observance of any
restriction (i) in this Agreement, or (ii) in any Related
Agreement, or (iii) in any of the Master Transfer Agreements
which default may not be cured or is not effectively cured
after a period of 30 days after written notice thereof has
been 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
17
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.
15.2. Upon the occurrence of an Event of Default, the Non-Defaulting Party
may elect one or more of the following remedies:
(a) 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; 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) Ford may cease the payment of (i) any Labor Differential
Uplift pursuant to Section 6.1; (ii) any amounts due under
Article 7 (GEN); (iii) any amounts due under Article 8
(Investment Sharing); and (iv) compensation payable to Visteon
pursuant to Section 2.2(e); and
(d) Recovery of Damages arising from the Default.
15.3 Ford may terminate this Agreement in the following events: (i)
thirty-five percent or more of the voting shares of Visteon become owned or
controlled, directly or indirectly, by a competitor of Ford in the business of
manufacturing motor vehicles; or (ii) all of the Existing Agreements become
subject to termination or cancellation for Good Cause.
15.4 A Non-Defaulting Party intending to terminate this Agreement pursuant
to this Article 15 as a result of an Event of Default occurring under
Subsections 15.1(a) or (b) shall first notify the Governance Council and 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.
15.5 The provisions of this Article 15 are without prejudice to any other
rights or remedies either Party may have by reason of the default of the other
party.
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15.6 In the event a competitor of Ford in the business of manufacturing
motor vehicles acquires a significant interest in Visteon (directly or
indirectly) Visteon will provide Ford with reasonable assurances that Visteon
will utilize its best efforts to preserve the confidentiality of all information
related to products produced for Ford and Ford product programs.
16. TERM
16.1 The term of this Agreement shall commence on the Effective Date and
continue through December 31, 2007.
17. CONFIDENTIALITY
17.1 "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;
(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.
17.2 Notwithstanding Section 17.1, "Confidential Information" does not
include information provided pursuant to a Purchase Order. Target Agreement,
Long-Term Agreement or Sourcing Agreement, and the confidentiality of such
information shall be governed by the terms and conditions of the applicable
Purchase Order, Target Agreement, Long-Term Agreement or Sourcing Agreement.
17.3 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 subsidiaries as have a
need to know such Confidential Information in order that the objectives of this
Agreement can be achieved. The receiving Party shall be responsible for the
compliance by such directors, employees, agents, advisors or Affiliates with the
provisions of this Agreement.
17.4 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
19
(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.
17.5 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.
17.6 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.
17.7 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.
17.8 Notwithstanding anything herein to the contrary, any Party (and any
employee, representative, or other agent of any Party) may disclose to any and
all persons, without limitation of any kind, the tax treatment and tax structure
(if any) of the transactions contemplated by this Agreement and all materials of
any kind (including opinions or other tax analyses) that are provided to it
relating to such tax treatment and tax structure. However, any such information
relating to the tax treatment or tax structure is required to be kept
confidential to the extent necessary to comply with any applicable United States
federal or state securities laws. Each Party agrees that it will notify each
other Party of any planned disclosure of such information and will discuss same
with the other Parties.
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18. GENERAL PROVISIONS
18.1 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.
18.2 Notices. Any notice under this Agreement must be in writing (letter,
facsimile) and will be effective when received by the addressee at its address
indicated below.
(a) Notice sent to Visteon will be addressed as follows:
Visteon Corporation
000 Xxxx Xxxxxx Xxxxx
00xx Xxxxx, Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Fax:(000)000-0000
(b) Notice sent to Ford will be addressed as follows:
Ford Motor Company
Office of the Secretary
One American Road
00xx Xxxxx Xxxxx Xxxxxxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
(c) The parties by notice hereunder may designate other addresses to which
notices will be sent.
18.3 Subsidiaries and Affiliates. Subsidiaries and Affiliates of Ford and
Visteon are bound by the provisions herein to the extent necessary that such
subsidiaries or Affiliates produce Components or purchase Components; provided,
that AAI and Affiliates of Ford shall be bound by this Agreement only to the
extent that Components supplied to them are purchased for use in a Ford, Lincoln
or Mercury brand vehicle.
18.4 Amendments. No amendment to this Agreement will be binding upon either
party unless it is in writing and is signed by a duly authorized representative
of each party. This Agreement supersedes any prior agreements between the
parties concerning the subject matter herein.
18.5 Assignments. This Agreement shall be binding upon and inure to the
benefit of the parties, and their respective successors and permitted assigns,
but no rights, interests or obligations of either party herein may be assigned
without the prior written consent of the other, which consent shall not be
unreasonably withheld.
18.6 Severability. If any provision of this Agreement, or portion thereof,
is invalid or unenforceable under any statute, regulation, ordinance, executive
order or other rule of law, such provision, or portion thereof, shall be deemed
reformed or deleted, but only to the extent necessary to comply with such
statute, regulation, ordinance, order or rule, and the remaining provisions of
this Agreement shall remain in full force and effect.
18.7 Governing Law. This Agreement will be construed and enforced in
accordance with the laws of the State of Michigan, excluding its conflict of
laws rules. Each party consents, for purposes of enforcing this Agreement, to
personal jurisdiction, service of process and venue in any state or federal
court within the State of Michigan having jurisdiction over the subject matter.
The parties exclude the application of the 1980 United Nations Convention on
Contracts for the International Sale of Goods, if otherwise applicable.
21
18.8 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 and for seeking relief, including but not limited to damages,
hereunder; provided, however, that a Party may seek injunctive relief from a
court where appropriate solely for the purpose of maintaining the status quo
while this procedure is being followed:
(a) The Parties promptly shall hold a meeting of the Governance
Council to attempt in good faith to negotiate a mutually
satisfactory resolution of the dispute; provided, however,
that no Party shall be under any obligation whatsoever to
reach, accept or agree to any such resolution: provided
further, that no such meeting shall be deemed to vitiate or
reduce the obligations and liabilities of the Parties or be
deemed a waiver by a Party hereto of any remedies to which
such Party would otherwise be entitled.
(b) If the Parties are unable to negotiate a mutually satisfactory
resolution as provided above, any Party may so notify the
other. In that event, the Parties agree to participate in good
faith in mediation of the dispute. Such mediation shall
conclude no later than forty-five (45) days from the date that
the mediator is appointed. If the Parties are not successful
in resolving the dispute through mediation, then the Parties
agree to submit the matter to binding arbitration before a
sole arbitrator in accordance with the CPR Rules for
Non-Administered Arbitration. Within five business days after
the selection of the arbitrator, each Party shall submit its
requested relief to the other Party and to the arbitrator with
a view toward settling the matter prior to commencement of
discovery. If no settlement is reached, then discovery shall
proceed. Upon the conclusion of discovery, each Party shall
again submit to the arbitrator its requested relief (which may
be modified from the initial submission) and the arbitrator
shall select only the entire requested relief submitted by one
Party or the other, as the arbitrator deems most appropriate.
The arbitrator shall not select one party's requested relief
as to certain claims or counterclaims and the other party's
requested relief as to other claims or counterclaims. Rather,
the arbitrator must only select one or the other Party's
entire requested relief on all of the asserted claims and
counterclaims, and the arbitrator will enter a final ruling
that adopts in whole such requested relief. The arbitrator
will limit his/her final ruling to selecting the entire
requested relief he/she considers the most appropriate from
those submitted by the Parties.
(c) Mediation and, if necessary, arbitration shall take place in
the City of Dearborn, Michigan unless the parties agree
otherwise or the mediator or the arbitrator selected by the
parties orders otherwise. Punitive or exemplary damages shall
not be awarded. This clause 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.
18.9 Counterparts. This Agreement may be executed by the parties in separate
counterparts, each of which when so executed and delivered will be an original,
but all such counterparts will together constitute one and the same instrument.
18.10 Right to Audit.
(a) If requested by Ford, Visteon will permit Ford (which, for purposes of
this Section 18.10, includes its authorized representatives) to:
(i) Examine all pertinent documents, data and other information
relating to Visteon's obligations under this Agreement, any payment made to
Visteon or any claim by Visteon;
22
(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 18.10 will be conducted during normal
business hours and upon advance written notice to Visteon.
(b) If requested by Ford, Visteon will use its best efforts to permit Ford
to obtain from the subcontractors of, and vendors to, Visteon the information
and permission to conduct the reviews specified in Section 18.10, regardless of
any other right Ford may have to that information or facilities.
(c) Visteon will keep all relevant documents, data and other written
information for at least two years following the termination of this Agreement.
[Remainder of Page left Intentionally Blank]
23
IN WITNESS WHEREOF, Ford and Visteon have caused this Agreement to be executed
in multiple counterparts by their duly authorized representatives.
VISTEON CORPORATION FORD MOTOR COMPANY
By: /s/ Xxxxxx X. Xxxxxxx BY: /s/ Xxx Xxxxxxx
------------------------------- --------------------------
Title: Executive Vice President Title: Group Vice President & CFO
And Chief Financial Officer
Date: 12/19/03 Date: 12/19/03
EXHIBIT IA
NORTH AMERICA COMMODITY GROUPS
1 Accumulators
2 Air Cleaners
3 Air Conditioning/Compressors
4 Air Handling System/Controls
5 Air/Fuel Charging System
6 Alternators
7 Axles
8 Bumpers
9 Carbon Cannisters
10 Catalytic Converters
11 Consoles
12 Door Trim
13 Driveshafts/Halfshafts
14 EATC
15 Electrical Modules
16 Exterior Plastics
17 Fuel Systems
18 Glass & Windows
19 Hoses
20 Ignition Coils
21 Instrument Clusters
22 Instrument Panels
23 Interior Acoustics
24 Interior Plastic Parts
25 IP Finish Panels
26 Lighting
27 Machined Parts
28 PCM
29 Power Steering Pumps
30 Radiators/Heat Exchangers
31 Radios
32 Security Systems
33 Sensors
34 Stampings
35 Starters
36 Steering Columns
37 Steering Gears
38 Suspension
39 Wiper Systems
EXHIBIT IB
DETERMINATION OF INCREMENTAL OR REPLACEMENT VEHICLES
VEHICLE ATTRIBUTES REVIEWED BEFORE MAKING A DETERMINATION
- Segment (B, C, D, etc.)
- Platform
- Volume
- Timing (when will it launch)
- What other vehicles are dropping from the cycle plan, and those vehicles'
characteristics and timing
- Powertrain lineup
- Assembly Plant vehicle goes into
- Who is the marketing audience (what group of people is the vehicle aim at
capturing)
Ford's Process for determining incremental/replacement status
Once per year, usually mid-year, the Ford Labor Affairs Sourcing Activity
analyzes the cycle plan and makes an initial determination of
incremental/replacement for all North American vehicles. The Ford Labor Affairs
Sourcing Activity then shares its results with Purchasing and Product and
Business Strategy. Upon consensus, the information is sent to various Executive
Directors and Vice Presidents for their concurrence. Once concurrence is
attained, the results will be shared with Visteon.
If Visteon does not agree with the incremental/replacement decision for a
particular vehicle, then within five business days after being informed of the
decision, Visteon may provide a written objection to the Ford Labor Affairs
Sourcing Activity, including the supporting rationale for its objection. A final
decision, including reasonable consideration of Visteon's position, will be made
by the Executive Director-Ford Labor Affairs.
Once final, the results will be shared with all Ford internal activities
involved in the Sourcing process and with Visteon.
EXHIBIT 3.1
[Material has been omitted and confidential treatment has been requested
therefore. All such omitted material has been filed separately with the
Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934, as amended.]
EXHIBIT 4.2
PRODUCT LINES NOT REQUIRING COMPETITIVE GAP CLOSURE PLANS
Alternators
Catalytic Converters
Electrical Modules
Fascias
Fuel Tanks
Glass
Starters
Steering Columns
Suspension Systems (Half shafts and misc. components)
Wipers/Washer Systems
EXHIBIT 6.1
WAGE RATE ELEMENTS
Base Wages a/
690 Variable Fringe
Cost of Living Allowance (COLA)
Christmas Bonus
Shift Premium b/
Local Training
Paid Lunch
Bereavement/Jury Duty/Military c/
Workers' Compensation
690 Accident/Sickness
Fixed 690 Assessment
Supplemental Unemployment Benefits (SUB) d/
-----------------
a/ Includes incentive pay, signing bonus and lump sums
b/ Includes seven day operators and alternative work schedule
c/ Includes paid absences, medical, and personal leave
d/ Includes SWW (Short Work Week)
EXHIBIT 10.1
COMPENSATION CALCULATION
This Exhibit outlines the calculation of the compensation to be paid by Ford to
Visteon pursuant to Sections 2.2(e) and 10.1(e).
As used in this Exhibit 10.1, the following definitions shall have the meanings
specified below:
"NET REVENUE" means sales less returns and allowances.
"CONTRIBUTION MARGIN" means Net Revenue less Variable Costs.
Contribution Margin is commonly referred to by Visteon as economic profit.
"PROFIT" means Contribution Margin less Fixed Costs.
"PROFIT ADJUSTMENT PERCENT" means Profit as a percentage of Net Revenue
plus 8 percentage points.
"VARIABLE COSTS" means Material, Warranty, Freight, Variable Labor and
Overhead, and Other Variable Costs.
"FIXED COSTS" means Fixed Manufacturing Labor and Overhead, Spending
Related, Launching, Engineering, Administrative and Selling, and Other Fixed
Costs accounted for determined in accordance with US GAAP applied consistent
with Visteon's historical accounting practices. For clarity this excludes Other
Income and Expense items such as Interest, and any costs included in the
calculation of Contribution Margin.
The Parties also shall agree on the procedure used to categorize relevant
accounts into the appropriate categories as well as a process to validate the
classification. If there is disagreement over the meaning of any of the
foregoing definitions or the categorization or process for validation, the
respective Accounting Directors of the Parties shall meet to resolve the issues.
PROCESS
1. As of the date on which a re-sourced Component ceases production at
Visteon, Visteon will prepare for the four preceding quarters in the
aggregate a detailed income statement with costs categorized between
Variable Costs and Fixed Costs, for sales by Visteon to Ford of all
Components
2. Visteon will provide to Ford Finance Personnel (which includes their
auditors and agents) support for the detailed income statement
including, without limitation, allocation methods and calculations and
provide historical data that supports consistent allocations or
explains changes. Ford Finance Personnel will have access to Visteon's
calculations, assumptions, and historical data, and Ford and Visteon
will work diligently to reach agreement on the detailed income
statements.
3. Once Ford and Visteon have agreed on the accuracy of the detailed
income statement, the Profit Adjustment Percent will be calculated and
agreed to between Ford and Visteon.
4. In January of the year after production of the re-sourced Component
begins at the new supplier and subsequent years during which the
re-sourced Component continues in production (excluding aftermarket),
the Profit Adjustment Percent will be multiplied by the net revenue
from the new supplier of the re-sourced Component and Ford will pay
Visteon that sum within thirty days after the calculation has been
agreed. This calculation and payment will continue for the shorter of
(i) the term of the Purchase Order with the new supplier, (ii) the
term of the Purchase and Supply Agreement including any subsequent
extensions or renewals, or (iii) four years.
5. Notwithstanding the announcement of any re-sourcing, Visteon will
provide productivity price reductions on the affected Component at the
higher of (i) the percentage specified in Section 3.1(b) or (ii) the
level agreed between Ford and Visteon as to such Component.
6. In accordance with Subsection 2.2(e) and 10.l(e), Ford has the right
to propose New Business to Visteon to replace business that was not
awarded or not renewed or terminated for Other Good Business Reasons.
If Visteon accepts such New Business, then the financial results from
such New Business will be used as an offset (partially or fully, as
the case may be) against the compensation otherwise payable by Ford
calculated in step 4 above.
