CHANGE IN CONTROL
AGREEMENT
THIS
AGREEMENT, which was originally effective June 1, 2006 (the
“Effective Date”) and is hereby amended and restated
effective as of October 3, 2008 (the “Restatement
Date”), is made by and between Visteon Corporation , a
Delaware corporation (the “Company”), and Terrence
G. Gohl (the “Executive”).
WHEREAS,
the Company considers it essential to the best interests of its
stockholders to foster 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 expire no earlier than 24 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
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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 date 18 months after 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 primarily
engaged in the design, manufacture, development, promotion or sale
of climate, instrument and door panels or electronic components for
the automotive industry within North America, Latin America, Asia,
Australia or Europe in competition 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
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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 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.
6.1
If (i) the Executive’s employment is terminated
following a Change in Control and within two (2) 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 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
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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, on the first day of the seventh (7
th ) month following the month in which occurs the
Executive’s Separation from Service, a lump sum severance
payment, in cash, equal to one and one half (1
1 / 2
) 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 18 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 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 18 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. Notwithstanding anything
in this Section 6.1(B) to the contrary, with respect to the
first six (6) months following the Executive’s
Separation from Service, if the premiums payable by the Company for
group term life insurance on the Executive’s life exceeds the
amount of the “limited payments” exemption set forth in
Section 1.409A-1(b)(9)(v)(B) of the Income Tax Regulations (or
any successor provision thereto), then, to the extent required in
order to comply with Code Section 409A, the Executive, in
advance, shall pay to the Company an amount equal to the premiums
for any such life insurance policy, other than with respect to life
insurance coverage to which the Executive would be entitled
independent of this Agreement. Promptly following the end of such
six (6) month period, the
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Company will
make a cash payment to the Executive equal to the difference
between the aggregate amount paid by the Executive for such
coverage and the amount that the Executive would have paid for such
life insurance coverage if such cost had been determined pursuant
to this Section 6.1(B) other than the preceding
sentence.
(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 shorter of (i) the remaining term of such option (such
remaining term to be determined as if the Executive were still
actively employed) or (ii) ten (10) years from the date
on which the option originally was granted, 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 on the first
day of the seventh (7 th )
month following the month in which occurs the Executive’s
Separation from Service, 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
month during such performance award period through the Date of
Termination by the total number of months contained in such
performance award period. Notwithstanding the forgoing, if and to
the extent the Executive had elected to defer receipt of any such
award, and if the Executive’s deferral election is
irrevocable as of the Date of Termination for purposes of Code
Section 409A, the amount calculated above shall be credited to
the Executive’s account under the applicable deferred
compensation plan in lieu of being distributed directly to the
Executive.
(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, Pension
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 shall become fully vested notwithstanding any
eligibility conditions that would otherwise apply with respect to
such benefits and the benefit, as so vested, will be paid in
accordance with the terms of the applicable plan or program;
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
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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, 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 if such
transfer to the Rabbi Trust would be treated, under Code Sections
83 and 409A(b), as a taxable transfer to the Executive, such
transfer to the Rabbi Trust shall not be made until such time as
the transfer will not be treated as a taxable event under Code
Sections 83 and 409A; and provided further, 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.
(F) The
Company shall reimburse the Executive for expenses incurred for
outplacement services suitable to the Executive’s position
for a period of two (2) years following the Executive’s
Separation from Service, (or, if earlier, until the first
acceptance by the Executive of an offer of employment) in an 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. The
Executive’s right to use a Company provided automobile cannot
be exchanged for cash or another benefit.
6.2
(A) Notwithstanding any other provisions of this Agreement, in
the event that any payment or benefit received or to be received by
the Executive in connection with a Change in Control or the
termination of the Executive’s 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) (all such payments and benefits, including the Severance
Payments, being hereinafter called “Total Payments”)
would be subject (in whole or part), to the Excise Tax, then, after
taking into account any reduction in the Total Payments provided by
reason of section 280G of the Code in such other plan, arrangement
or agreement, the cash Severance Payments shall first be reduced,
and the noncash Severance Payments shall thereafter be reduced, to
the extent necessary so that no portion of the Total Payments is
subject to the Excise Tax but only if (A) the net amount of
such Total Payments, as so reduced (and after subtracting the net
amount
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of federal,
state and local income taxes on such reduced Total Payments) is
greater than or equal to (B) the net amount of such Total
Payments without such reduction (but after subtracting the net
amount of federal, state and local income taxes on such Total
Payments and the amount of Excise Tax to which the Executive would
be subject in respect of such unreduced Total Payments);
provided , however , that the Executive may elect to
have the noncash Severance Payments reduced (or eliminated) prior
to any reduction of the cash Severance Payments.
(B) For
purposes of determining whether and the extent to which the Total
Payments wi
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