(LEAR CORPORATION LOGO)
Exhibit 10.12
March 15, 2005
Mr. Louis Salvatore
[home address]
Dear Lou:
Lear Corporation (the "Company") considers it essential to its best
interest and the best interests of its stockholders to foster the continued
employment of key management personnel.
The Board of Directors of the Company (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
yourself, to their assigned duties. The Board recognizes that, as is the case
with many publicly-held companies, the possibility of a Change in Control (as
that term is hereafter defined) exists. The Company wishes to assure itself of
both present and future continuity of management in the event of any Change in
Control. In order to induce you to remain in the employ of the Company, and in
consideration of your agreement to the termination of any existing employment
contract you may have with the Company or any predecessor, the Company agrees
that you shall receive, upon the terms and conditions set forth herein, the
compensation and benefits set forth in this letter agreement ("Agreement")
during the Term hereof.
1. TERM OF AGREEMENT AND REPLACEMENT OF PRIOR LETTER AGREEMENT. This
Agreement shall commence as of March 15, 2005 ("Effective Date"). The initial
term of this Agreement shall be three (3) years from the Effective Date.
Commencing on the first anniversary of the Effective Date, the term of this
Agreement shall at all times be two (2) years, that is, the term of this
Agreement shall be automatically extended each day for an additional day such
that this Agreement shall continually have an unexpired term of two (2) years,
until the date two (2) years after written notice is provided by either the
Company or the Executive that this Agreement is not to be further extended (a
"Notice of Non-Renewal"), the date set forth in a Notice of Termination provided
pursuant to Section 4, the date of the Executive's death, or the date the
Executive reaches his or her normal retirement date under the Lear Corporation
Pension Plan or its successor, whichever shall first occur (the initial term as
so extended is referred to herein as the "Term"). This Agreement replaces the
prior letter agreement ("Prior Agreement") between the Company and you, dated
July 5, 2000. The Prior Agreement shall terminate upon execution of
Mr. Louis Salvatore
March 15, 2005
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this Agreement. In consideration of the termination of the Prior Agreement, the
Company is continuing your employment on the terms set forth in this Agreement,
will pay you $5,000 in cash upon the execution of this Agreement and is
providing you other good and valid consideration by entering into this
Agreement, the receipt and sufficiency of which consideration you hereby
acknowledge by executing this Agreement.
2. TERMS OF EMPLOYMENT. During the Term, you agree to be a
full-time employee of the Company serving initially in the position of
President, Ford Interiors and Electronics Division of the Company*. You agree to
devote substantially all of your working time and attention to the business and
affairs of the Company, to discharge the responsibilities associated with your
position with the Company, and to use your best efforts to perform faithfully
and efficiently such responsibilities. In addition, you agree to serve in such
other or different capacities or offices to which you may be assigned, appointed
or elected from time to time by the Company. Nothing herein shall prohibit you
from devoting your time to civic and community activities, serving as a member
of the Board of Directors of other corporations that do not compete with the
Company, or managing personal investments, as long as the foregoing do not
interfere with the performance of your duties hereunder or violate the terms of
the Company's Code of Business Ethics and Conduct, the Company's Corporate
Governance Guidelines, or other policies applicable to the Company's executives
generally, as those policies may be amended from time to time by the Company.
3. COMPENSATION.
(a) As compensation for your services, under this Agreement, you
shall be entitled during the Term to receive an initial base salary the
annualized amount of which shall be $445,000**, to be paid in accordance with
existing payroll practices for executives of the Company. Increases in your base
salary, if any, shall be as approved by the Compensation Committee of the Board.
In addition, you shall be eligible to receive an annual incentive compensation
bonus ("Bonus") to be approved from time to time by the Compensation Committee
of the Board.
(b) During the Term, you shall be eligible for participation in the
welfare, retirement, perquisite and fringe benefit, and other benefit plans,
practices, policies and programs, as may be in effect from time to time, for
senior executives of the Company generally.
(c) During the Term, you shall be eligible for prompt reimbursement
for business expenses reasonably incurred by you in accordance with the
Company's policies, as may be in effect from time to time, for its senior
executives generally.
4. TERMINATION OF EMPLOYMENT.
(a) NOTICE. You or the Company may terminate the employment
relationship by giving a Notice of Non-Renewal, as described in Section 1.
Alternatively, the employment
_________________________
* President, Global Seating Systems as of February 11, 2008.
** Current base salary was $625,000 as of February 15, 2008.
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relationship may be terminated by the Company with or without Cause, by the
Company for Incapacity, or by you with or without Good Reason, all as defined
below, by giving a Notice of Termination. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon, if any, and shall set forth
in reasonable detail the facts and circumstances claimed to provide a basis for
termination of your employment under the provision so indicated. All notices
under this Section 4(a) shall be given in accordance with the requirements of
Section 9.
(b) INCAPACITY. If the Company reasonably determines that you are
unable at any time to perform the duties of your position because of a serious
illness, injury, impairment, or physical or mental condition and you are not
eligible for or have exhausted all leave to which you may be entitled under the
Family and Medical Leave Act ("FMLA") or, if more generous, other applicable
state or local law, the Company may terminate your employment for "Incapacity".
In addition, at any time that you are on a leave of absence, the Company may
temporarily reassign the duties of your position to one or more other executives
without creating a basis for your Good Reason resignation, provided that the
Company restores such duties to you upon your return to work.
(c) CAUSE. Termination of your employment for "Cause" shall mean
termination upon:
(i) an act of fraud, embezzlement or theft by you in connection with your
duties or in the course of your employment with the Company;
(ii) your material breach of any provision of this Agreement, provided
that in those instances in which your material breach is capable of being
cured, you have failed to cure within a thirty (30) day period after
notice from the Company;
(iii) an act or omission, which is (x) willful or grossly negligent, (y)
contrary to established policies or practices of the Company, and (z)
materially harmful to the business or reputation of the Company, or to the
business of the Company's customers or suppliers as such relate to the
Company; or
(iv) a plea of nolo contendere to, or conviction for, a felony.
(d) GOOD REASON. For purposes of this Agreement, "Good Reason" shall mean
the occurrence of any of the following circumstances or events:
(i) any reduction by the Company in your base salary or adverse change in
the manner of computing your Bonus, as in effect from time to time, except
for across-the-board salary reductions or changes to the manner of
computing bonuses similarly affecting all executive officers of the
Company subject to Section 16(b) of the Securities Exchange Act of 1934,
as determined by the Board ("executive officers");
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(ii) the failure by the Company to pay or provide to you any amounts of
base salary or Bonus or any benefits which are due, owing and payable to
you pursuant to the terms hereof, except pursuant to an across-the-board
compensation deferral similarly affecting all executive officers, or to
pay to you any portion of an installment of deferred compensation due
under any deferred compensation program of the Company;
(iii) except in the case of across-the-board reductions, deferrals,
eliminations, or plan modifications similarly affecting all executive
officers, the failure by the Company to continue to provide you with
benefits substantially similar in the aggregate to the Company's life
insurance, medical, dental, health, accident or disability plans in which
you are participating at the date of this Agreement;
(iv) without limiting the generality or effect of the foregoing, any
material breach of this Agreement by the Company.
However, the language in Sections 4(d)(i) through (iii) concerning reductions,
changes, deferrals, eliminations, or plan modifications similarly affecting all
executive officers of the Company shall not be applicable to circumstances or
events occurring in anticipation of, or within one year after, a Change in
Control, as defined in Section 4(e). In addition, upon a Change in Control, you
shall have the right to resign for Good Reason if your principal place of
employment is transferred to a location fifty (50) or more miles from its
location immediately preceding the transfer.
Notwithstanding anything else herein, Good Reason shall not exist if, with
regard to the circumstances or events relied upon in your Notice of Termination:
(x) you failed to provide a Notice of Termination to the Company within sixty
(60) days of the date you knew or should have known of such circumstances or
events, (y) the circumstances or events are fully corrected by the Company prior
to the Date of Termination, or (z) you give your express written consent to the
circumstances or events.
(e) CHANGE IN CONTROL. For purposes of this Agreement, a "Change in
Control" of the Company shall be deemed to have occurred as of the first day any
one or more of the following paragraphs is satisfied:
(i) any Person as that term is used in Section 13(d)(3) or Section
14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act")
(other than the Company or a trustee or other fiduciary holding securities
under an employee benefit plan of the Company, or a corporation owned
directly or indirectly by the shareholders of the Company in substantially
the same proportions as their ownership of stock of the Company) becomes
the Beneficial Owner, as that term is defined in Rule 13d-3 of the General
Rules and Regulations under the Exchange Act, directly or indirectly, of
securities of the Company, representing more than twenty percent of the
combined voting power of the Company's then outstanding securities.
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(ii) during any period of twenty-six consecutive months beginning on or
after the Effective Date, individuals who at the beginning of the period
constituted the Board cease for any reason (other than death, disability
or voluntary retirement) to constitute a majority of the Board. For this
purpose, any new Director whose election by the Board, or nomination for
election by the Company's shareholders, was approved by a vote of at least
two-thirds of the Directors then still in office, and who either were
Directors at the beginning of the period or whose election or nomination
for election was so approved, will be deemed to have been a Director at
the beginning of any twenty-six month period under consideration.
(iii) the shareholders of the Company approve: (A) a plan of complete
liquidation or dissolution of the Company; or (B) an agreement for the
sale or disposition of all or substantially all the Company's assets; or
(C) a merger, consolidation or reorganization of the Company with or
involving any other corporation, other than a merger, consolidation or
reorganization that would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least eighty percent of the combined voting power of
the voting securities of the Company (or such surviving entity)
outstanding immediately after such merger, consolidation, or
reorganization.
(f) DATE OF TERMINATION. "Date of Termination" shall mean
(i) if your employment is terminated by reason of your death, the date of
your death;
(ii) if your employment is terminated by the Company for any reason other
than because of your death, the date specified in the Notice of
Termination (which shall not be prior to the date of the notice);
(iii) if your employment is terminated by you for any reason, the Date of
Termination shall be not less than thirty (30) nor more than sixty (60)
days from the date such Notice of Termination is given, or such earlier
date after the date such Notice of Termination is given as may be
identified by the Company.
Unless the Company instructs you not to do so, you shall continue to perform
services as provided in this Agreement through the Date of Termination.
(g) EMPLOYEE BENEFITS. A termination by the Company pursuant to Section
4(c) hereof or by you pursuant to Section 4(d) hereof shall not affect any
rights which you may have pursuant to any other agreement, policy, plan, program
or arrangement of the Company providing employee benefits, which rights shall be
governed by the terms thereof and by Section 5; provided, however, that if you
shall have received or shall be receiving benefits under Section 5(a), (c), or
(d) hereof and, if applicable, Section 6 hereof, you shall not be entitled to
receive benefits under any other policy, plan, program or arrangement of the
Company providing severance compensation to which you would otherwise be
entitled.
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March 15, 2005
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5. COMPENSATION UPON TERMINATION. Upon your termination of employment, you
shall receive:
(a) If your employment shall be terminated by the Company for Incapacity,
(i) for the period from the Date of Termination until the end of the calendar
year in which such termination occurs, you shall receive all compensation
payable to you under the Company's disability and medical plans and programs, as
in effect on the Date of Termination, plus an additional payment from the
Company (if necessary) such that the aggregate amount received by you from all
sources equals your base salary, at the rate in effect on the Date of
Termination, plus any Bonus and all other amounts to which you would have been
entitled under any compensation or benefit plans of the Company had your
employment continued until the end of the calendar year, (ii) for the period
from the end of the calendar year in which such termination occurs until two (2)
years from the Date of Termination (the "Payment End Date"), you shall receive
all compensation payable to you under the Company's disability and medical plans
and programs, as in effect on the Date of Termination, plus an additional
payment from the Company (if necessary) such that the aggregate amount received
by you from all sources equals your base salary at the rate in effect on the
Date of Termination, and (iii) for purposes of outstanding awards and amounts
owing or accrued as described in Section 5(d)(iii) of this Agreement, your
employment shall be deemed to have been terminated due to your Disability (as
that term is defined in the plans, programs, or arrangements described in
Section 5(d)(iii) of this Agreement). After the Payment End Date, your benefits
shall be determined under the Company's retirement, insurance and other
compensation programs then in effect in accordance with the terms of such
programs. The additional payments by the Company described in this Section 5(a)
shall be conditioned upon the execution by you or a representative with legal
authority to act on your behalf of a general release relating to your employment
in form and substance reasonably acceptable to the Company.
(b) If your employment shall be terminated (i) by the Company for Cause or
by a Notice of Non-Renewal, or (ii) by you other than for Good Reason, the
Company shall pay you your base salary through the Date of Termination, at the
rate in effect at the time Notice of Termination is given, plus all other
amounts to which you are fully vested and irrevocably entitled under any
compensation or benefit plans of the Company as of the Date of Termination, and
the Company shall have no further obligations in any respect whatsoever for
payment of compensation or benefits to you under this Agreement. Provided,
however, that if your employment is terminated by you other than for Good
Reason, you shall be compensated under this Section 5(b) only to the extent that
you actively performed your assigned responsibilities through the Date of
Termination. In addition, you acknowledge that a termination of employment
described in this Section 5(b) shall not be considered an End of Service Date
for any and all outstanding stock options to which you are a party, except to
the extent it would otherwise qualify as a Retirement thereunder.
(c) If your employment shall be terminated by reason of your death, the
Company shall pay your estate or designated beneficiary (as designated by you by
written notice to the Company, which designation shall remain in effect for the
remainder of the Term and any extensions thereof until revoked or a new
beneficiary is designated, in either case by written notice to the Company)
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Mr. Louis Salvatore
March 15, 2005
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your base salary through the Date of Termination, plus a Bonus prorated for the
portion of the Bonus measurement period occurring prior to the date of your
death, plus all other amounts to which you are entitled under any compensation
or benefit plans of the Company at the date of your death, including, but not
limited to, all life insurance proceeds payable on your death to which your
estate or beneficiaries are otherwise entitled in accordance with the terms
thereof, and the Company shall have no further obligation to you, your
beneficiaries or your estate under this Agreement.
(d) If your employment shall be terminated (a) by the Company, except for
a termination by the Company for Cause or Incapacity or by a Notice of
Non-Renewal (or due to your death), or (b) by you for Good Reason, then you
shall be entitled to the benefits provided below:
(i) The Company shall pay you your full base salary through the Date of
Termination at the rate in effect at the time Notice of Termination is
given (or, if greater, at the rate in effect at any time within 90 days
prior to the time Notice of Termination is given), plus all other amounts
to which you are entitled under any compensation or benefit plans of the
Company, including, without limitation, a Bonus prorated for the portion
of the Bonus measurement period occurring prior to the Date of
Termination, at the time such payments are due, except as otherwise
provided below.
(ii) Conditioned upon your execution of a general release relating to your
employment in form and substance reasonably acceptable to the Company, the
Company shall pay or cause to be paid to you, in lieu of any further
payments to you for the portion of the Term subsequent to the Termination
Date an amount (the "Severance Payment"), which shall be equal to the sum
of:
(A) the aggregate base salary (at the highest rate in effect at
any time during the Term) which you would have received
pursuant to this Agreement for the Severance Period had your
employment with the Company continued for such period, and
(B) the aggregate Bonus (based upon the highest annual Bonus that
you received with respect to any calendar year during the two
years immediately preceding the calendar year in which the
Termination Date occurred, or, in the event that the
Termination Date occurs prior to the first anniversary of the
Effective Date, then based upon the highest annual Bonus that
you received with respect to any calendar year during the
three years immediately preceding the calendar year in which
the Termination Date occurred) which you would have received
pursuant to this Agreement for the Severance Period, had your
employment with the Company continued for such period.
The Severance Payment shall be paid over a period of one (1) year (the
"Severance Period") in the following manner: an amount equal to fifty
percent (50%) of the value of the Severance Payment, or, if the Severance
Period is adjusted per Section 10(e), then an
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March 15, 2005
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amount equal to twenty-five percent (25%) of the value of the Severance
Payment, paid in a lump sum as soon as administratively practicable after
your Termination Date; and an amount equal to the remaining fifty percent
(50%) or seventy-five percent (75%), as applicable, paid in equal
semi-monthly installments, without interest, beginning six (6) months
after the Termination Date and continuing through the end of the Severance
Period. Notwithstanding the foregoing, in the event that the Termination
Date occurs prior to the first anniversary of the Effective Date, the
Severance Period will be increased by one year.
(iii) All outstanding awards, and all amounts owing or accrued, on the
Date of Termination under the Lear Corporation Long-Term Stock Incentive
Plan ("LTSIP"), the Lear Corporation Management Stock Purchase Plan
("MSPP"), the Lear Corporation Executive Supplemental Savings Plan
("ESSP") and the Lear Corporation Pension Equalization Program ("PEP"),
and any other compensation or equity-based plan, program or arrangement of
the Company in which you participated (including, following a Change in
Control, any additional accruals provided thereunder due to a Change in
Control) will be paid to you under the terms and conditions of such plans,
programs and arrangements (and the award agreements and other documents
thereunder), as modified by this Section 5(d)(iii). Your awards and
amounts owing or accrued that vest based on the passage of time and/or
continued service (and not based primarily upon the satisfaction of
performance measures, as described below) will vest as scheduled during
the Severance Period as if you had remained employed; to the extent such
awards and amounts owing or accrued have not vested by the end of your
Severance Period, they will become vested and nonforfeitable on a pro rata
basis determined by multiplying the unvested awards and amounts by a
fraction, the numerator of which is the number of full months that elapsed
from the grant date to the end of your Severance Period, as adjusted by
Section 10(e), and the denominator of which is the number of full months
in the total vesting period. Your vested stock options shall be
exercisable (A) prior to a Change in Control, for thirteen months
following your Date of Termination (but not later than the date on which
the stock options would otherwise expire if you remained employed by the
Company), and (B) following a Change in Control, throughout their entire
term. In the case of those awards and amounts owing or accrued which would
otherwise have become vested and nonforfeitable primarily upon the
satisfaction of performance measures set forth in the relevant award
agreement, plan, program or arrangement, you shall be paid in stock as
soon as administratively feasible after the end of the relevant
performance period (or such earlier period as the other participants in
such award agreement, plan, program or arrangement are eligible to be paid
out), a pro rata amount (if and to the extent all relevant performance
objectives are actually achieved at target levels), based on a fraction,
the numerator of which is the number of full months that elapsed from the
grant date to your Date of Termination and the denominator of which is the
number of full months in the relevant performance period.
You and the Company acknowledge that references in this Section 5(d)(iii)
to the PEP, the MSPP, the ESSP, and the LTSIP, shall be deemed to be
references to such plans as
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March 15, 2005
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amended or restated from time to time and to any similar plan of the
Company that supplements or supersedes any such plans. In addition, you
and the Company acknowledge that references in this Section 5 to any
Section of the Code shall be deemed to be references to such Section as
amended from time to time or to any successor thereto.
(iv) The Company shall arrange to provide to you, your dependents, and
beneficiaries, for the Severance Period, benefits provided under any
"welfare benefit plan" of the Company (as the term "welfare benefit plan"
is defined in Section 3(1) of the Employee Retirement Income Security Act
of 1974, as amended) ("Welfare Benefits"). If and to the extent that any
such Welfare Benefits shall not or cannot be paid or provided under any
policy, plan, program or arrangement of the Company (A) solely due to the
fact that you are no longer an officer or employee of the Company or did
not continue as an officer or employee of the Company during the remainder
of the Term or (B) as a result of the amendment or termination of any plan
providing for Welfare Benefits, the Company shall then itself pay or
provide for the payment of such Welfare Benefits to you, your dependents
and beneficiaries. Without otherwise limiting the purposes or effect of
the no mitigation obligation in Section 5(h) hereof, Welfare Benefits
payable to you (including your dependents and beneficiaries) pursuant to
this Section 5(d)(iv) shall be reduced to the extent comparable welfare
benefits are actually received by you (including your dependents and
beneficiaries) from another employer during such period, and any such
benefits actually received by you shall be reported by you to the Company.
(v) Your right to acquire any shares of the Company's capital stock under
any and all outstanding stock options, or other rights previously granted
to you under any equity-based plans of the Company shall be governed by
the express terms of such plans and the applicable agreements thereunder,
except as provided in Section 5(a), 5(b), or 5(d)(iii) of this Agreement.
(e) Any Bonus that is payable to you with respect to a period that is less
than a full calendar year (a "partial calendar year") shall be prorated by
multiplying (i) the Bonus that would have been payable to you with respect to
the entire calendar year had your employment with the Company continued until
the end of such year by (ii) a fraction, the numerator of which equals the
number of days in the partial calendar year and the denominator of which equals
365.
(f) Unless your Date of Termination occurs within one year after a Change
in Control, the Company, if permitted by law, may set-off or counterclaim
losses, fines or damages in respect of any claim, debt or obligation against any
payment to or benefit for you provided for in this Agreement.
(g) Without limiting your rights at law or in equity, if the Company fails
to make any payment or provide any benefit required to be made or provided
hereunder within thirty (30) days of the date it is due, the Company will pay
interest on the amount or value thereof at an annualized rate of interest equal
to the "prime rate" as quoted from time to time during the relevant period in
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Mr. Louis Salvatore
March 15, 2005
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The Wall Street Journal, plus three percent. Such interest will be payable as it
accrues on demand. Any change in such prime rate will be effective on and as of
the date of such change.
(h) The Company acknowledges that its severance pay plans and policies
applicable in general to its salaried employees do not provide for mitigation,
offset or reduction of any severance payment received thereunder. Accordingly,
the parties hereto expressly agree that the payment of the severance
compensation by the Company to you in accordance with the terms of this
Agreement shall be liquidated damages and that you shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment or otherwise, nor shall any profits, income, earnings or other
benefits from any source whatsoever create any mitigation, offset, reduction or
any other obligation on the part of you hereunder or otherwise, except as
expressly provided in this Section 5.
6. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary notwithstanding, in the
event that it shall be determined (as hereafter provided) that any payment (or
benefit provided) by the Company to or for your benefit, whether paid or payable
pursuant to the terms of this Agreement or otherwise (a "Payment"), would be
subject to the excise tax imposed by Section 4999 (or any successor thereto) of
the Code, and any interest or penalties with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereafter
collectively referred to as the "Excise Tax"), then you shall be entitled to
receive an additional payment or payments (collectively, a "Gross-Up Payment"),
including without limitation any Gross-Up Payment made with respect to the
Excise Tax, if any, attributable to (i) any incentive stock option, as defined
by Section 422 of the Code ("ISO"), or (ii) any stock appreciation or similar
right, whether or not limited, granted in tandem with any ISO. The Gross-Up
Payment shall be in an amount such that, after payment by you of the Excise Tax,
plus any additional taxes, penalties and interest, and any further Excise Taxes
imposed upon the Gross-Up Payment, you retain, after payment of all such taxes
and Excise Taxes, an amount of the Gross-Up Payment equal to the Payment that
you would have received if no Excise Taxes had been imposed upon the Payment and
no additional taxes, penalties, and interest or further Excise Taxes had been
imposed upon the Gross-Up Payment.
(b) Subject to the provisions of Section 6(e) hereof, all determinations
required to be made under this Section 6, including whether an Excise Tax is
payable by you and the amount of such Excise Tax and whether a Gross-Up Payment
is required and the amount of such Gross-Up Payment, shall be made by a
nationally recognized firm of certified public accountants (the "Accounting
Firm") selected by you in your sole discretion, other than the Company's
independent auditing firm, to the extent prohibited by applicable Public Company
Accounting Oversight Board rules. You shall direct the Accounting Firm to submit
its determination and detailed supporting calculations to both the Company and
you within 30 calendar days after the Termination Date. If the Accounting Firm
determines that any Excise Tax is payable by you, the Company shall pay the
required Gross-Up Payment to you within five (5) business days after receipt of
the aforesaid determination and calculations. If the Accounting Firm determines
that no Excise Tax is payable by you, it shall, at the same time as it makes
such determination, furnish you with an opinion that
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March 15, 2005
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you do not owe any Excise Tax on your Federal income tax return. Any
determination by the Accounting Firm as to the amount of the Gross-Up Payment to
be paid by the Company within such 30 calendar day period shall be binding upon
the Company and you. As a result of the uncertainty in the application of
Section 4999 (or any successor thereto) of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 6(e) hereof and you thereafter are required to make a payment of any
Excise Tax, you shall direct the Accounting Firm to determine the amount of the
Underpayment that has occurred and to submit its determination and detailed
supporting calculations to both the Company and you as promptly as possible. Any
such Underpayment shall be promptly paid by the Company to or for your benefit
within three calendar days after receipt of such determination and calculations.
(c) The Company and you shall each cooperate with the Accounting Firm in
connection with the preparation and issuance of the determination provided for
in Section 6(b) hereof. Such cooperation shall include without limitation
providing the Accounting Firm access to and copies of any books, records and
documents in the possession of the Company or you, as the case may be, that are
reasonably requested by the Accounting Firm.
(d) The fees and expenses of the Accounting Firm for its services in
connection with the determinations and calculations provided for in Section 6(b)
hereof shall initially be paid by you. The Company shall reimburse you for your
payment of such costs and expenses within five (5) business days after receipt
from you of a statement therefor and evidence of your payment thereof.
(e) You shall notify the Company in writing, of any claim by the Internal
Revenue Service (the "IRS") that, if successful, would require the payment by
the Company of a Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than 10 business days after you receive notice of such
claim and shall apprise the Company of the nature of such claim and the date on
which such claim is requested to be paid. You shall not pay such claim prior to
the earlier of (x) the expiration of the 30 calendar day period following the
date on which you give such notice to the Company or (y) the date that any
payment of taxes with respect to such claim is due. If the Company notifies you
in writing prior to the expiration of such period that it desires to contest
such claim, you shall:
(i) give the Company any information reasonably requested by the
Company relating, to such claim;
(ii) take such action in connection with contesting such claim as
the Company shall reasonably request in writing, from time to time,
including without limitation accepting legal representation with respect
to such claim by an attorney reasonably selected by the Company;
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Mr. Louis Salvatore
March 15, 2005
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(iii) cooperate with the Company in good faith in order effectively
to contest such claim; and
(iv) permit the Company to participate in any proceedings relating
to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold you harmless, on an after-tax
basis, for any Excise Tax or income tax, including interest and penalties with
respect thereto, imposed as a result of such representation and payment of costs
and expenses. Without limitation on the foregoing provisions of this Section
6(e), the Company shall, provided that such control does not have a material
adverse affect on your individual income tax with respect to matters unrelated
to the contest of the Excise Tax, control all proceedings taken in connection
with such contest and, at its sole option, may, provided that such pursuit or
foregoing does not have a material adverse affect on your individual income tax
with respect to matters unrelated to the contest of the Excise Tax, pursue or
forego any and all administrative appeals, proceedings, hearings and conference
with the IRS in respect of such claim (but, you may participate therein at your
own cost and expense) and may, at its sole option, provided that such payment,
suit, contest or prosecution does not have a material adverse affect on your
individual income tax with respect to matters unrelated to the contest of the
Excise Tax, either direct you to pay the tax claimed and sue for a refund or
contest the claim in any permissible manner, and you agree to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs you to pay the tax
claimed and sue for a refund, the Company shall advance the amount of such
payment to you on an interest-free basis and shall indemnify and hold you
harmless, on an after-tax basis, from any Excise Tax or income tax, including
interest or penalties with respect thereto, imposed with respect to such advance
or with respect to any imputed income with respect to such advance; and further
provided that any extension of the statute of limitations relating to payment of
taxes for your taxable year with respect to which the contested amount is
claimed to be due is limited solely to such contested amount. Furthermore, the
Company's control of such contest shall be limited to issues with respect to
which a Gross Up Payment would be payable hereunder, and you shall be entitled
to settle or contest, as the case may be, any other issue raised by the IRS.
(f) If, after the receipt by you of an amount advanced by the Company
pursuant to Section 6(e) hereof, you receive any refund with respect to such
claim, you shall (subject to the Company's complying with the requirements of
Section 6(e) hereof) promptly pay to the Company the amount of such refund
(together with any interest paid or credited thereon after any taxes applicable
thereto). If, after the receipt by you of an amount advanced by the Company
pursuant to Section 6(e) hereof, a determination is made that you shall not be
entitled to any refund with respect to such claim and the Company does not
notify you in writing of its intent to contest such denial or refund prior to
the expiration of 30 calendar days after such determination, then such advance
shall be forgiven and shall not be required to be repaid and the amount of such
advance shall offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
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7. TRAVEL. You shall be required to travel to the extent necessary for the
performance of your responsibilities under this Agreement.
8. SUCCESSORS; BINDING AGREEMENT. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all the business and/or assets of the Company, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place, and will assign its rights and obligations hereunder to such
successor. Failure of the Company to make such an assignment and to obtain such
assumption and agreement prior to the effectiveness of any such succession,
unless you agree otherwise in writing with the Company or the successor, shall
entitle you to compensation from the Company in the same amount and on the same
terms as you would be entitled to hereunder if you terminate your employment for
Good Reason and the date on which any such succession becomes effective shall be
deemed your Date of Termination. As used in this Agreement, "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise. This Agreement shall inure to the benefit of and
be enforceable by your personal or legal representatives, executors,
administrators, successors, heirs, distributees and/or legatees. This Agreement
is personal in nature and neither of the parties hereto shall, without the
consent of the other, assign, transfer or delegate this Agreement or any rights
or obligations hereunder except as expressly provided in this Section 8. Without
limiting the generality of the foregoing, your right to receive payments
hereunder shall not be assignable or transferable, whether by pledge, creation
of a security interest or otherwise, other than by a transfer by your will or by
the laws of descent and distribution and, in the event of any attempted
assignment or transfer contrary to this Section 8, the Company shall have no
liability to pay to the purported assignee or transferee any amount so attempted
to be assigned or transferred. The Company and you recognize that each party
will have no adequate remedy at law for any material breach by the other of any
of the agreements contained herein and, in the event of any such breach, the
Company and you hereby agree and consent that the other shall be entitled to a
decree of specific performance, mandamus or other appropriate remedy to enforce
performance of this Agreement.
9. NOTICES. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing, and shall be
deemed to have been duly given when delivered by hand, or mailed by United
States certified mail, return receipt requested, postage prepaid, or sent by
Federal Express or similar overnight courier service, addressed to the
respective addresses set forth on the first page of this Agreement, or sent by
facsimile with confirmation of receipt to the respective facsimile numbers set
forth on the first page of this Agreement, provided that all notices to the
Company shall be directed to the attention of the Secretary of the Company (or,
if you are the Secretary at the time such notice is to be given, to the Chairman
of the Company's Board of Directors), or to such other address or facsimile
number as either party may have furnished to the other in writing in accordance
herewith, except that notice of change of address or facsimile number shall be
effective only upon receipt.
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10. NONCOMPETITION.
(a) Until the Date of Termination, you agree not to engage in any
Competitive Activity. For purposes of this Agreement, the term "Competitive
Activity" shall mean your participation as an employee or consultant, without
the written consent of the CEO or the Board or any authorized committee thereof,
in the management of any business enterprise anywhere in the world if such
enterprise engages in competition with any product or service of the Company
(including without limitation any enterprise that is a supplier to an original
equipment automotive vehicle manufacturer) or is planning to engage in such
competition. "Competitive Activity" shall not include the mere ownership of, and
exercise of rights appurtenant to, securities of a publicly-traded company
representing 5% or less of the total voting power and 5% or less of the total
value of such an enterprise. You agree that the Company is a global business and
that it is appropriate for this Section 10 to apply to Competitive Activity
conducted anywhere in the world.
(b) You agree not to engage directly or indirectly in any Competitive
Activity (i) until one (1) year after the Date of Termination if you are
terminated by the Company for Cause, as a result of a Notice of Non-Renewal from
the Company, or you terminate your employment for other than Good Reason, or
(ii) until two (2) years after the Date of Termination in all other
circumstances.
(c) You shall not directly or indirectly, either on your own account or
with or for anyone else, solicit or attempt to solicit any of the Company's
customers, solicit or attempt to solicit for any business endeavor or hire or
attempt to hire any employee of the Company, or otherwise divert or attempt to
divert from the Company any business whatsoever or interfere with any business
relationship between the Company and any other person, (i) until one (1) year
after the Date of Termination if you are terminated by the Company for Cause, as
a result of a Notice of Non-Renewal from the Company, or you terminate your
employment for other than Good Reason, or (ii) until two (2) years after the
Date of Termination in all other circumstances.
(d) You acknowledge and agree that damages in the event of a breach or
threatened breach of the covenants in this Section 10 will be difficult to
determine and will not afford a full and adequate remedy, and therefore agree
that the Company, in addition to seeking actual damages pursuant to Section 10
hereof, may seek specific enforcement of the covenant not to compete in any
court of competent jurisdiction, including, without limitation, by the issuance
of a temporary or permanent injunction, without the necessity of a bond. You and
the Company agree that the provisions of this covenant not to compete are
reasonable. However, should any court or arbitrator determine that any provision
of this covenant not to compete is unreasonable, either in period of time,
geographical area, or otherwise, the parties agree that this covenant not to
compete should be interpreted and enforced to the maximum extent which such
court or arbitrator deems reasonable.
(e) As additional compensation for the covenants contained in Sections
10(b) and 10(c), and only if you execute a general release in form and substance
reasonably acceptable to the Company acknowledging, among other things, your
obligations under this Agreement, the
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Mr. Louis Salvatore
March 15, 2005
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Company shall increase the Severance Period for purposes of Section 5(d) from
one (1) year to two (2) years.
11. CONFIDENTIALITY AND COOPERATION.
(a) You shall not knowingly use, disclose or reveal to any unauthorized
person, during or after the Term, any trade secret or other confidential
information relating to the Company or any of its affiliates, or any of their
respective businesses or principals, such as, without limitation, dealers' or
distributor's lists, information regarding personnel and manufacturing
processes, marketing and sales plans, pricing or cost information, and all other
such information; and you confirm that such information is the exclusive
property of the Company and its affiliates. Upon termination of your employment,
you agree to return to the Company on demand by the Company all memoranda,
books, papers, letters and other data, and all copies thereof or therefrom, in
any way relating to the business of the Company and its affiliates, whether made
by you or otherwise in your possession.
(b) Any design, engineering methods, techniques, discoveries, inventions
(whether patentable or not), formulae, formulations, technical and product
specifications, bill of materials, equipment descriptions, plans, layouts,
drawings, computer programs, assembly, quality control, installation and
operating procedures, operating manuals, strategic, technical or marketing
information, designs, data, secret knowledge, know-how and all other information
of a confidential nature prepared or produced during the period of your
employment and which ideas, processes, and other materials or information relate
to any of the businesses of the Company, shall be owned by the Company and its
affiliates whether or not you should in fact execute an assignment thereof or
other instrument or document which may be reasonably necessary to protect and
secure such rights to the Company.
(c) Following the termination of your employment, you agree to make
yourself reasonably available to the Company to respond to periodic requests for
information relating to the Company or your employment which may be within your
knowledge. You further agree to cooperate fully with the Company in connection
with any and all existing or future depositions, litigation, or investigations
brought by or against the Company, any entity related to the Company, or any of
its (their) agents, officers, directors or employees, whether administrative,
civil or criminal in nature, in which and to the extent the Company deems your
cooperation necessary. In the event that you are subpoenaed in connection with
any litigation or investigation, you will immediately notify the Company. You
shall not receive any additional compensation, other than reimbursement for
reasonable costs and expenses incurred by you, in complying with the terms of
this Section 11(c).
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12. ARBITRATION.
(a) Except as contemplated by Section 10(d) or Section 12(c) hereof, any
dispute or controversy arising under or in connection with this Agreement that
cannot be mutually resolved by the parties to this Agreement and their
respective advisors and representatives shall be settled exclusively by
arbitration in Southfield, Michigan, before one arbitrator of exemplary
qualifications and stature, who shall be selected jointly by an individual to be
designated by the Company and an individual to be selected by you, or if such
two individuals cannot agree on the selection of the arbitrator, who shall be
selected pursuant to the procedures of the American Arbitration Association.
(b) The parties agree to use their best efforts to cause (i) the two
individuals set forth in the preceding Section 12(a), or, if applicable, the
American Arbitration Association, to appoint the arbitrator within 30 days of
the date that a party hereto notifies the other party that a dispute or
controversy exists that necessitates the appointment of an arbitrator, and (ii)
any arbitration hearing to be held within 30 days of the date of selection of
the arbitrator, and, as a condition to his or her selection, such arbitrator
must consent to be available for a hearing, at such time.
(c) Judgment may be entered on the arbitrator's award in any court having
jurisdiction, provided that you shall be entitled to seek specific performance
of your right to be paid and to participate in benefit programs during the
pendency of any dispute or controversy arising under or in connection with this
Agreement. The Company and you hereby agree that the arbitrator shall be
empowered to enter an equitable decree mandating specific performance of the
terms of this Agreement. If any dispute under this Section 12 shall be pending,
you shall continue to receive at a minimum the base salary which you were
receiving immediately prior to the act or omission which forms the basis for the
dispute. At the close of the arbitration, such continued base salary payments
may be offset against any damages awarded to you or may be recovered from you if
its determined that you were not entitled to the continued payment of base
salary under the other provisions of this Agreement.
13. MODIFICATIONS. No provision of this Agreement may be modified,
amended, waived or discharged unless such modification, amendment, waiver or
discharge is agreed to in writing and signed by both you and such officer of the
Company as may be specifically designated by the Board.
14. NO IMPLIED WAIVERS. Failure of either party at any time to require
performance by the other party of any provision hereof shall in no way affect
the full right to require such performance at any time thereafter. Waiver by
either party of a breach of any obligation hereunder shall not constitute a
waiver of any succeeding breach of the same obligation. Failure of either party
to exercise any of its rights provided herein shall not constitute a waiver of
such right.
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15. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Michigan without giving effect to any conflicts of laws rules.
16. PAYMENTS NET OF TAXES. Except as otherwise provided in Section 6
herein, any payments provided for herein which are subject to Federal, State
local or other governmental tax or other withholding requirements or
obligations, shall have such amounts withheld prior to payment, and the Company
shall be considered to have fully satisfied its obligation hereunder by making
such payments to you net of and after deduction for all applicable withholding
obligations.
17. CAPACITY OF PARTIES. The parties hereto warrant that they have the
capacity and authority to execute this Agreement.
18. VALIDITY. The invalidity or unenforceability of any provision of this
Agreement shall not, at the option of the party for whose benefit such provision
was intended, affect the validity or enforceability of any other provision of
the Agreement, which shall remain in full force and effect.
19. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
20. ENTIRE AGREEMENT. This Agreement and any attachments hereto, contain
the entire agreement by the parties with respect to the matters covered herein
and supersede any prior agreement (including, but not limited to the Prior
Agreement and any other prior employment agreement(s)), condition, practice,
custom, usage and obligation with respect to such matters insofar as any such
prior agreement, condition, practice, custom, usage or obligation might have
given rise to any enforceable right. No agreements, understandings or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this Agreement.
21. LEGAL FEES AND EXPENSES. It is the intent of the Company that you not
be required to incur the expenses associated with the enforcement of your rights
under this Agreement by litigation or other legal action because the cost and
expense thereof would substantially detract from the benefits intended to be
extended to you hereunder. Accordingly, the Company shall pay or cause to be
paid and be solely responsible for any and all reasonable attorneys' and related
fees and expenses incurred by you (i) as a result of the Company's failure to
perform this Agreement or any provision hereof or (ii) as a result of the
Company unreasonably or maliciously contesting the validity or enforceability of
this Agreement or any provision hereof as aforesaid.
22. CODE SECTION 409A. Notwithstanding any provision in this Agreement to
the contrary, if your employment is terminated as described in Section 5(d) and
Section 409A(a)(2)(B)(i) of the Code applies to all or any portion of your
Severance Payment and you are a "specified employee" thereunder, then the
Company shall pay the portion of your Severance
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Mr. Louis Salvatore
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Payment that is subject to such Section of the Code no earlier than six (6)
months after your Termination Date or such other date as would be permissible
under the Code. If your employment is terminated as described in Section 5(d)
and Section 409A(a)(2)(B)(i) of the Code does not apply to any portion of your
Severance Payment or you are not a "specified employee" thereunder, then the
Company shall pay your Severance Payment as described in Section 5(d).
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter which
will then constitute our agreement on this subject, effective on March 15, 2005
("Effective Date").
Sincerely,
LEAR CORPORATION
By: /s/ Roger A. Jackson
__________________________________________
Roger A. Jackson
Agreed to this 15th day of March, 2005
/s/ Louis Salvatore
__________________________________________________
Louis Salvatore
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