Attached files
| file | filename |
|---|---|
| 10-Q - 10-Q - WABCO Holdings Inc. | wbc10q3312018.htm |
| EX-32.2 - EXHIBIT 32.2 - WABCO Holdings Inc. | wbc_exhibit322x03312018.htm |
| EX-32.1 - EXHIBIT 32.1 - WABCO Holdings Inc. | wbc_exhibit321x03312018.htm |
| EX-31.2 - EXHIBIT 31.2 - WABCO Holdings Inc. | wbc_exhibit312x03312018.htm |
| EX-31.1 - EXHIBIT 31.1 - WABCO Holdings Inc. | wbc_exhibit311x03312018.htm |
| EX-10.2 - EXHIBIT 10.2 - WABCO Holdings Inc. | ex102longtermincentiveaw.htm |
WABCO WABCO Europe BVBA-SPRLChaussee de La Hulpe 166
1170 Brussels
Belgium
www.wabco-auto.com
Phone : +32 (0)2 663 98 00
Fax : +32 (0)2 663 98 96
MANAGEMENT AGREEMENT
BETWEEN:
WABCO E rope SPRL/BVBA, having its registered offices at 1170 Brussels,
Chaussee de La Hulpe 166, with company number 0475.956.135;
Hereinafter referred to as the Company ;
Represented for the purposes of the Agreement by Mr. Jacques Esculier and Mr.
Mazen Mazraani in their capacity of Business Managers of the Company;
AND:
Mr. Roberto Fioroni, residing at 1200 Woluwe Saint-Lambert, Square Josephine
Charlotte 18,
Hereinafter referred to as the Business Manager ;
TAKING INTO ACCOUNT THE FOLLOWING;
WHEREAS the Company undertakes and warrants that the Business Manager will be appointed as
a remunerated general manager of the Company by its General Assembly of Shareholders with
effect as of June 1st 2018;
WHEREAS the Company and the Business Manager wish to determine in a written agreement
(“the Agreement ) the terms and conditions under which the latter will perform the office as
Business Manager of the Company effective as of June 6th 2018 (the “Effective Date”);
IT HAS BEEN AGREED AS FOLLOWS:
Article 1. Object of the a reeme t
1. The Business Manager agrees to perform the office of Business Manager of the Company. In
his capacity of Business Manager, he will manage the Company subject to the terms and
conditions of the Agreement.
VAT : BE0475.956.135 - RPM/RPR BRUSSELS
2. Pursuant to generally applicable management practice, the Business Manager will attend all
meetings of the Board of Business Managers and through his contribution and effort as
Business Manager provide together with the other Business Managers the best possible
management for the Company.
3. The Business Manager will at all times respect and abide the division of decision and
representation powe s for Business Managers as established by the Shareholder s meeting in
the articles of association as well as any other Company policy which may affect him as a
business manager of the Company.
4. The Board of Business Managers may delegate special powers to the Business Manager within
the framework of his office as Business Manager, and the Business Manager will carry them
out to the best of his abilities.
Ar icle 2. The conditions of the agreement
1. The Business Manager shall perform the Agreement on a self-employed basis.
2. The Business Manage will be available for the performance of the Agreement during the time
considered necessary in order to fulfil his obligations resulting from this agreement. To that
effect, the Business Manager accepts to be available during regular office hours and to perform
225 man-days per calendar year.
Prior to the beginning of the Agreement and during the performance thereof, the Business
Manager will inform the Company in writing of any other positions (whether remunerated or
not) which he holds in any other company or association. The Company has the right to request
the Business Manager terminate such positions to the extent that they could possibly hinder the
proper performance of the Agreement.
In addition, the Business Manager will refrain from accepting any position (whether
remunerated or not) in any other company or association which might conflict with the proper
performance of the A eement, except with the prior written consent of the Company.
3. The Business Manager will be provided with the necessary infrastructure, logistical support and
documentation of the Company insofar as it is necessary for the proper performance of the
Agreement.
4. As holder of a corporate mandate, the Business Manager agrees to respect all instructions in
relation to safety and health, which are applicable within the premises of the Company where
personnel are working. The Business Manager e plicitly allows the Company to take the
necessary measures in his name in the event any problem would arise in this respect.
5. The Business Manager shall report to the Chairman of the Board of Business Managers on the
progress of his activities at the moments determined by the Board of Business Managers of the
Company, its Chairman or whenever the parties to the Agreement consider it to be necessary.
6. The Business Manager shall perform his office as Business Manager of the Company as a
normal prudent Business Manager, with due diligence and in accordance with generally
accepted and consistently applied business practices. The Business Manager shall, at all times,
(a) take into consideration the objectives and best interest of the Company and the WABCO
group in general, (b) comply with all applicable laws and regulations and (c) comply with all
corporate policies and codes of business ethics established by the Company or the WABCO
Page | 2
group in general, including but not necessarily limited to global policies relating to technology,
operations, human resources, finance, and proposal and contract approvals.
7. The Business Manager will be covered by the WABCO Director and Officers Policy, covering
the liability of company directors and officers.
Article 3. Place of performance and mobility
1. The Business Manager agrees to fulfil his duties and responsibilities under this Agreement
from the business premises of the Company in Belgium.
2. In view of the international scope of activities and business of the Company, the Business
Manager acknowledges and accepts that proper performance of the mandate may require that
he travels to other locations abroad and performs temporary assignments abroad at any time.
Article 4. Base salary
1. For the du ation of the Agreement, the Company will pay the Business Manager a fixed annual
remuneration of €400.000 gross (hereinafter referred to as the Base Salary ). The Base Salary
shall be paid in 12 equal monthly instalments, per month performed, after deduction of the tax
and any other contractual withholdings. In case of an incomplete year, the Base Salary shall be
paid pro rata temporis.
2. The Base Salary will be reviewed once a year, it being understood that such adjustment must
be endorsed by the competent corporate body of the Company. The adjustment of the Base
Salary will take effect as of the month of July.
Article 5. Incentives
1. The Business Manager is eligible to participate in the Annual Incentive Plan (AIP) of the
Company in accordance with rules and conditions of such plan which is subject to change from
time to time. The Business Manager s individual AIP target (“the AIP Target ) amounts to
70% of the Base Salary. The actual AIP payment ( the Actual AIP ) is based on the
achievement of individual and company performance goals which are determined every
perfonnance year by the Compensation Nominating and Governance (the “CNG”) of
WABCO’s Board of Directors. The Business Manager understands and agrees that the Actual
AIP, if any, is composed of a cash payment ( Actual Cash AIP payment”) and a mandatory
deferral into the Company Supplemental Pension Plan referred to in article 8.2 of the
Agreement, each element being of equal value. The Business Manager for the year 2018, will
be credited with full year AIP eligibility.
2. The Business Manager will be eligible to participate in the Cash Long Term Incentive Plan
(LTIP) of the Company in accordance with rules and condition of such plan which is subject to
change from time to time. The target LTIP (“the LTIP Target”) amounts to 45% of the average
Base Salary over the three year cycle period. Your participation will be gr dually phased-in at
50% of target for the 2016-2018 cycle, 75% of target for the 2017-2019 cycle, and 100 % of
target for the 2018-2020 cycle and following cycles. The actual LTIP payment (“the Actual
LTIP”) is calculated on the achievement of company performance goals which are determined
for each cycle by the Compensation Nomination and Governance Committee of the Board of
Directors.
Page | 3
3. The Business Manager will be eligible for an annual equity grant based on the CNG
committee s annual recommendation and in accordance with the provisions of the WABCO
Omnibus Incentive Plan which is subject to change from time to time. At his level, the annual
targeted value is $500,000. This does not constitute a commitment for an equity award or the
value of such award for any period. All awards will be subject to the terms and conditions of
the WABCO Omnibus Incentive Plan.
4. The Business Manager ill receive a sign-on equity grant with an initial value of $600,000
effective as of the first day of the month of his employment at the Company. This grant will be
comprised of RSUs, which will rateably vest on each of the first three anniversaries of the grant
date.
Article 6. Company car
1. The Company shall provide the Business Manager with the use of a car and fuel card, pursuant
to the terms and conditions of the Company’s car policy which is subject to change from time
to time. All costs associated with the use of the car shall be borne by the Company.
2. The Business Manager can also make use of the company car for private purposes. The private
use of the company car will be taxed as a benefit in kind in accordance with the official
guidelines of the tax authorities. The Business Manager accepts that the taxation of the private
use can change due to a modification of the legal rules of such a benefit.
Article 7. Other benefits
The Company shall provide the Business Manager with the following benefits:
1. the use of a mobile phone, pursuant to the terms and conditions of the Company’s mobile
phone policy which is subject to change from time to time;
2. the use of a laptop.
Article 8. Insurances & pension funding
1. The Business Manager will be covered by the Company’s group insurance plan for its Business
Managers, which is subject to change from time to time. The insurance plan covers extra-legal
pension, death in service, invalidity and guaranteed income.
Confirmation of the affiliation is subject to medical tests identified by the insurance company.
The Business Manager explicitly agrees that all personal contributions will be deducted from
his monthly salary.
A summary of the Company’s roup insurance plan is attached as Annex 1 to the Agreement.
2. The Business Manager will also take part in the Company Supplemental Pension Plan set up for
the college of Business Managers. The related annual contributions to this supplemental plan
are determined in article 5.1.
3. The Business Manager will be covered by Company’s supplemental E ecutive Life Insurance.
4. Medical care will be covered th ough the Belgian social security scheme and a private medical
insurance paid concluded by the Company for its Business Managers and then dependent
family members.
Page | 4
5. If the Business Manager is unable to perform his duties and obligation through illness or
inability to work, the Business Manager will be entitled to receive his Base Salary during the
first month of illness or inability to work. After the initial period, the Company s group
insurance plan defined in article 8 of the present agreement applies. This will be subject to the
production of medical certificates and to such other requi ement as the Company, as well as the
insurance company may reasonably impose.
Article 9. Ex enses
1. The Company will pay a fixed monthly representation allowance to the Business Manager,
equal to €244 in accordance with the Company policy on representation allowances.
2. The Company will reimburse the Business Manager all professional costs (except those
covered under article 9.1 above) he may incur in the normal execution of the Agreement
provided they are reasonable and justified through e pense reports.
3. The Company will reimburse the Business Manager financial planning services up to $10,000.
Article 10. Housing
The Company will pay to Business Manager a net monthly housing allowance of €4,500 to cover
his housing costs in Belgium and a net monthly allowance of €375 to cover the house utilities,
including gas, water, electricity and maintenance. Both allowances will be indexed on an annual
basis based on the rent indexes in Belgium.
Article 11. Taxes
1. The Company will inform the Belgian tax authorities on behalf of the Business Manager about
the status of the Business Manager in order to request the special tax status for non-residents.
2. Shall the Belgian tax authorities grant the BM the special tax status for non-residents :
i) The Business Manager will not undertake any action that could jeopardize the
continued application of the special tax status for expatriates or reduce the benefits for
the Company.
ii) The Business Manager shall provide to the Company or the Company’s designated tax
advisors all documents related to his professional travel outside Belgium, such as
boarding passes, train tickets, visa stubs, etc.
3. The Company will provide the Business Manager with tax assistance with regard to his Belgian
income tax return at the Company’s expense.
4. As the Business Manager has the fiscal status of manager ( bedrijfsleider’/’dirigeant
d’entreprise’) for Belgian income tax purposes, the Company will deduct withholding taxes
from the Business Manager’s remuneration.
Article 12. School allo ance
The Company will reimburse the Business Manager for the education costs of his dependent
children in grades K to 12 (or up to the end of secondary school). Reimbursement under this
provision shall be limited to tuition fees, books and necessary supplies, and local school
transportation.
Article 13. Social security
The Business Manager will be subject to the Belgian social security scheme for self-employed
workers, in accordance with the Belgian social security legislation.
The Business Manager will be solely liable for his personal social security obligations in
relation to the performance of the Agree ent. The Business Manager will register with a
Belgian social insurance fund for self-employed workers. The Company will pay on behalf of
the Business Manager the required quarterly social security contributions to the social
insurance fund in order to keep their affiliation with the Belgian social security scheme for
self-employed workers.
The Business Manager explicitly ag ees that all payments made by the Company on behalf of
the Business Manager will be deducted from his monthly salary.
Article 14. Confidentiality
1. All information, data, written materials, discs, files, software and/or any other document and/or
material prepared for the benefit of or received by the Business Manager in execution of or
during the performance of the Agreement and connected to the business of the Company, its
clients and/or its personnel is qualified as confidential information (hereinafter referred to as
Confidential Information ) and will remain exclusively the property of the Company.
2. At the moment of the effective termination of the Agreement, for whatever reason, or at the
sole request of the Company during the performance of the Agreement, the Business Manager
will immediately transfer all Confidential Information to the Company.
3. The Business Manager will not be entitled to take or keep any transcript or copy of the
Confidential Information, under whatever form, after the termination of the Agreement. All
possible titles and/or intellectual rights that may be connected directly or indirectly with the
Confidential Information belong to the Company and remain the sole property of the latter.
4. Furthermore, the Business Manager will not reveal any Confidential Information to third parties
and/or use this information on his own behalf or jointly with or on behalf of any person, firm or
company after the termination of the Agreement for whatever reason.
5. The present section does not apply with regard to information pertaining to the public domain.
Article 15. Intellectual property
1. All systems, programs, software (object codes as well as source codes), documents, databases,
manuals, reports, trade secrets, inventions, improvements, know-how and all other work
created, designed, developed or produced by the Business Manager, whether or not by using
the facilities of the Company, in the course of or in relation with the performance of this
Management Agreement, or that relate to the activities of the Company (the Works ) shall
remain or become the exclusive property of the Company. This exclusivity implies but is not
limited to the transfer and assignment of all intellectual and other proprietary rights in the
Works to the Company.
2. All intellectual and other proprietary rights in the Works (including but not limited to
copyrights, trademark rights, rights on databases, rights on computer programs as well as
Page | 6
patent rights) that have come into existence or will come into existence in the course of or in
relation with the performance of the Agreement are i mediately transferred and assigned to
the Company as from their coming into existence or, as from the execution of this
Management Agreement for rights already in existence at the time of contracting.
3. The transfer and assignment of these intellectual and other proprietary rights in the Works
includes, but is not limited to the transfer and assignment of the right to reproduce, modify,
translate, adapt, use to make derivative works, distribute, rent, lend and/or communicate the
Works to the public, partially or completely, in each and any way, for internal (including but
not limited to research and development) and external use. The transfer and assignment is
valid for all count es, in the most extensive way possible as permitted by law, without
limitation in time other than the legal duration of validity of these rights and without further
payment than the fee as provided for executing the Agreement.
4. The Business Manager undertakes to fully inform the Company, upon first demand of the
Company, that it has created, designed, developed or produced certain Works. The Business
Manager undertakes to fully communicate all information and know-how in relation to the
Works to the Company, and this immediately upon the creation, design, development or
production of the Works.
5. Should the Company decide, without having any obligations whatsoever, to file for any
registered intellectual property rights in relation to a Work, the Business Manager undertakes,
upon first demand of the Company, upon expenses borne by the Company, to provide all
necessai or useful cooperation and to provide and sign all documents in order to permit,
facilitate or accelerate any application for any registered intellectual property right. The
Business Manager undertakes not to apply for any registered intellectual property right or to
ask a third party to apply for a registered intellectual property right related to the Works
without the written express authorisation of the Company.
6. The Company has the exclusive right to decide, when and how, to exploit the Works. Works
that have not been exploited remain the exclusive prope ty of the Company. The Company can
adapt and modify the Works as it deems appropriate in order to exploit the Works. The
Business Manager ag ees not to oppose the adaptation or the modification of the Works. The
Business Manager agrees that the Company may exploit the Works without mentioning the
Business Manager s name.
Article 16. Duration / Termination
1. The Agreement shall enter into force on June 1st, 2018, i.e. date of the Business Manager s
appointment as business Manager of the Company by the General Assembly of Shareholders
of the Company.
2. The Agreement is concluded for an indefinite duration.
3. Except as provided in Article 17, upon teimination of the Business Manager’s mandate by the
General Assembly of Shareholders of the Company without Cause or by the Business Manager
for Good Reason (as these terms are defined in annex 2 to this Agreement), hence upon
termination of the Agreement, the Company must pay the Business Manager a severance
payment equal to 1.5 times the remuneration (as defined in paragraph 4 of this article 16).
However, if the Business Manager, in whatever function or capacity, accepts employment by
or a collaboration agreement (including, for avoidance of doubt, a Business Management
Page | 7 J
Agreement) with a company of the WABCO Group, this will not be considered as a
termination of the Agreement by the Company in the framework of this article.
4. Remuneration in the framework of the present articles consists of the following elements:
i. The Base Salary defined in article 4 of the Agree ent;
ii. The AIP Target as defined in article 5.1. of the Agreement;
iii. Contributions for Group insurance and medical cover as defined in Article 8 of the
Agreement
5. Severance will however not be due if the Company terminates the Business Manager s mandate
and hence the Agreement because of Cause .
6. The Business manager will also be reimbursed for financial planning services of up to $5,000
for one year after the date of termination.
7. The Business Manager will respect a reasonable notice period in case of resignation from his
mandate. The reasonable notice period is three months in all cases, unless Parties agree
otherwise. In case of resignation from his mandate by the Business Manager, the latter will not
be entitled to the severance payment foreseen in article 16.3.
8. The Business Manager will not be entitled to any severance under this Management Agreement
unless:
i. he executes a release of claims against the Company and its affiliated companies in a
form acceptable to the Company; OR
ii. a final irrevocable court decision intervened on all existing claims (apart from the
entitlement to the remainder of the contractual severance) and the Business Manager
executed a release of claims against the Company and its affiliated companies in a form
acceptable to the Company for all other claims that may exist at that time.
In this respect the company agrees to pay an advance to the severance pay equal to six months’
severance and this within a timeframe of 45 days after the termination of the contract.
9. Non-compete clause :
In the case of termination of the present agreement, the Business Manager is prohibited from
undertaking any activity with the following companies that compete with the Company or the
WABCO group either directly, by exploiting an undertaking himself, or indirectly by accepting
a position as a collaborator in an undertaking with competing activities. Hereby, it is irrelevant
whether or not the competing activity is fair or unfair, and whether or not it is performed for the
Business Manager’s own account or for the account of a third party:
i. Knorr-Bremse Group
ii. Haldex
iii. ZF Friedrichshafen AG
The non-compete obligation set out in this article:
Page | 8
applies to the European Union and Chinese territories,
applies for 12 months from and including the day on which the final agreement will be
signed.
If the Business Manager breaches this article, the Business Manager will have to pay to the
Company an equivalent of 6 months salary as defined in Article 4.1 as a penalty. The
Company may claim additional compensation based on the actual damage suffered and proven
by the Company.
10. Non-solicitation :
In the case of termination of the present agreement, the Business Manager must with regards to
any person who is at that time:
i. a collaborator of the Company or the WABCO group or affiliated companies :
not attempt or participate in an attempt to,
recruit directly or indirectly that person (or otherwise employ them as a self-
employed service provider, or in any other capacity), or
incite that person to end his or her professional relationship with the Company or
the WABCO group or affiliated companies.
ii. a client, prospective client, supplier or any other party to a contract with the Company or
the WABCO group or affiliated companies entice that entity :
to terminate its relationship with the Company or the WABCO group or affiliated
companies, or
substantially reduce its business with the Company or the WABCO group or
affiliated companies, or change the terms and conditions of the business with
WABCO in any unfavourable way.
The non-solicitation obligation set out in this article applies for 12 months from and including
the day on which the final agreement will be signed.
Article 17. Change of control
Any severance provided upon a Change of Control (as that term is defined in the WABCO
Holdings Inc. Change of Control Severance Plan (the “Change of Control Plan ) shall be provided
pursuant to the terms of the Change of Control Plan. Any such payment shall be in lieu of any
severance payment that might be payable under article 16 or otherwise.
Article 18. Notification
Any notification in connection with the Agreement must be made in writing and in English and
shall be validly given with respect to each party if sent by registered mail or courier to the
addresses set out in the beginning of this Management Agreement or to such other address as a
party may notify to the other in accordance with this clause.
Page | 9 Initials
Article 19. Enforceability
Any provision of the Agreement or part thereof which would be declared null and void, will be
considered separated from the Agreement, which, for the remainder, will remain applicable.
Article 20. Applicable law / Jurisdiction
1. The Agreement is governed by Belgian law and any dispute concerning the interpretation,
performance and/or termination of the Agreement must be resolved under Belgian law.
2. The courts of Brussels have exclusive authority in relation to every dispute connected to the
interpretation, the performance and/or the termination of the Agr ement. By executing the
Agreement, the Business Manager consents to the jurisdiction of the Belgian courts with
respect to the Agreement.
Article 21. Entire agreement
1. The A reement constitutes the entire agreement existing between parties, with respect to
services performed hereunder during periods on and after the Effective Date. It replaces every
other agreement and/or arrangement between parties to the extent that its provisions are
incompatible with the provisions of the Agreement.
2. All policies referred to in the Agreement, whether attached to this agreement as an annex or
not, form an integral part of the Agr ement and have the same legal value.
Established in two original copies in Brussels on April 5, 2018, both parties acknowledging receipt
of one original copy duly signed by the other parties.
The Business Manager
Dr. Roberto Fioroni
( read and approved")
[sig at re]
Mazen Mazraani
Business Manager