EX-10.15






Exhibit 10.15




AMENDED AND RESTATED

CHANGE OF CONTROL EMPLOYMENT AGREEMENT




          AGREEMENT by and between BorgWarner Inc., a Delaware corporation (the “Company”) and
                                        (the “Executive”) dated as of the                    day of              
        200                    .




          The Board of Directors of the Company (the “Board”), has determined that it is in the best
interests of the Company and its stockholders to assure that the Company will have the continued
dedication of the Executive, notwithstanding the possibility, threat or occurrence of a Change of
Control (as defined below) of the Company. The Board believes it is imperative to diminish the
inevitable distraction of the Executive by virtue of the personal uncertainties and risks created
by a pending or threatened Change of Control and to encourage the Executive’s full attention and
dedication to the Company currently and in the event of any threatened or pending Change of
Control, and to provide the Executive with compensation and benefits arrangements upon a Change of
Control which ensure that the compensation and benefits expectations of the Executive will be
satisfied and which are competitive with those of other corporations. Therefore, in order to
accomplish these objectives and in consideration of the Executive’s covenants in Section 10, the
Board has caused the Company to enter into this Agreement.




          NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:




          1. Certain Definitions. (a) The “Effective Date” shall mean the first date during
the Change of Control Period (as defined in Section 1(b)) on which a Change of Control (as defined
in Section 2) occurs. Anything in this Agreement to the contrary notwithstanding, if (i) the
Executive’s employment with the Company is terminated by the Company, (ii) the Date of Termination
is prior to the date on which a Change of Control occurs, and (iii) it is reasonably demonstrated
by the Executive that such termination of employment (A) was at the request of a third party that
has taken steps reasonably calculated to effect a Change of Control or (B) otherwise arose in
connection with or anticipation of a Change of Control, then for all purposes of this Agreement the
“Effective Date” shall mean the date immediately prior to such Date of Termination.




          (b) The “Change of Control Period” shall mean the period commencing on the date hereof and
ending on the third anniversary of the date hereof; provided, however, that
commencing on the date one year after the date hereof, and on each annual anniversary of such date
(such date and each annual anniversary thereof shall be hereinafter referred to as the “Renewal
Date”), unless previously terminated, the Change of Control Period shall be automatically extended
so as to terminate three years from such Renewal Date, unless at least 60 days prior to the Renewal
Date the Company shall give notice to the Executive that the Change of Control Period shall not be
so extended.




          2. Change of Control. For the purpose of this Agreement, a “Change of Control” shall
mean:




          (a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Securities Exchange Act of 1934, as




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amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of either (i) the then outstanding shares
of common stock of the Company (the “Outstanding Company Common Stock”) or (ii) the combined voting
power of the then outstanding voting securities of the Company entitled to vote generally in the
election of directors (the “Outstanding Company Voting Securities”); provided,
however, that for purposes of this subsection (a), the following acquisitions shall not
constitute a Change of Control: (W) any acquisition directly from the Company, (X) any acquisition
by the Company, (Y) any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any entity controlled by the Company, (Z) any acquisition pursuant to
a transaction which complies with clauses (i), (ii) and (iii) of subsection (c) of this Section 2;




          (b) Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease
for any reason to constitute at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to the date hereof whose election, or nomination
for election by the Company’s stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board;




          (c) Consummation by the Company of a reorganization, statutory share exchange, merger or
consolidation or similar transaction involving the Company or any of its subsidiaries or sale or
other disposition of all or substantially all of the assets of the Company or the acquisition of
assets or stock of another entity by the Company or any of its subsidiaries (each of the foregoing,
a “Business Combination”), in each case, unless, following such Business Combination, (i) all or
substantially all of the individuals and entities that were the beneficial owners, respectively, of
the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to
such Business Combination beneficially own, directly or indirectly, more than 60% of, respectively,
the then outstanding shares of common stock (or, for a non-corporate entity, equivalent securities)
and the combined voting power of the then outstanding voting securities entitled to vote generally
in the election of directors (or, for a non-corporate entity, equivalent governing body), as the
case may be, of the entity resulting from such Business Combination (including, without
limitation, an entity which as a result of such transaction owns the Company or all or
substantially all of the Company’s assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately prior to such Business
Combination of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as
the case may be, (ii) no Person (excluding any corporation resulting from such Business Combination
or any employee benefit plan (or related trust) of the Company or such corporation resulting from
such Business Combination) beneficially owns, directly or indirectly, 20% or more of, respectively,
the then outstanding shares of common stock (or, for a non-corporate entity, equivalent securities)
of the entity resulting from such Business Combination or the combined voting power of the then
outstanding voting securities of such entity except to the extent that such ownership existed
prior to the Business Combination and (iii) at least a majority of the members of the board of
directors (or, for a non-corporate entity, equivalent governing body) of the entity resulting



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from such Business Combination were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board, providing for such Business
Combination; or




          (d) Approval by the stockholders of the Company of a complete liquidation or dissolution of
the Company.




          3. Employment Period. The Company hereby agrees to continue the Executive in its
employ, and the Executive hereby agrees to remain in the employ of the Company subject to the terms
and conditions of this Agreement, for the period commencing on the Effective Date and ending on the
[second/third] anniversary of such date (the “Employment Period”). The Employment Period shall
terminate upon the Executive’s termination of employment for any reason.




          4. Terms of Employment. (a) Position and Duties. (i) During the Employment
Period, (A) the Executive’s position (including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall be at least commensurate in all
material respects with the most significant of those held, exercised and assigned to the Executive
at any time during the 120-day period immediately preceding the Effective Date and (B) the
Executive’s services shall be performed at the location where the Executive was employed
immediately preceding the Effective Date or any office or location less than 35 miles from such
location.




               (ii) During the Employment Period, and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive agrees to devote reasonable attention and time
during normal business hours to the business and affairs of the Company and, to the extent
necessary to discharge the responsibilities assigned to the Executive hereunder, to use the
Executive’s reasonable best efforts to perform faithfully and efficiently such responsibilities.
During the Employment Period it shall not be a violation of this Agreement for the Executive to (A)
serve on corporate, civic or charitable boards or committees, (B) deliver lectures, fulfill
speaking engagements or teach at educational institutions and (C) manage personal investments, so
long as such activities do not significantly interfere with the performance of the Executive’s
responsibilities as an employee of the Company in accordance with this Agreement. It is expressly
understood and agreed that to the extent that any such activities have been conducted by the
Executive prior to the Effective Date, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the Executive’s responsibilities to the
Company.



          (b) Compensation. (i) Base Salary. During the Employment Period, the
Executive shall receive an annual base salary (“Annual Base Salary”), which shall be paid at an
annual rate, at least equal to twelve times the highest monthly base salary paid or payable,
including any base salary which has been earned but deferred, to the Executive by the Company and
its affiliated companies in respect of the twelve-month period immediately preceding the month in
which the Effective Date occurs. The Annual Base Salary shall be paid at such intervals as the
Company pays executive salaries generally. During the Employment Period, the Annual Base Salary
shall be reviewed no more than 12 months after the last salary increase awarded to the Executive
prior to the Effective Date and thereafter at least annually. Any increase in Annual Base Salary
shall not serve to limit or reduce any other obligation to the Executive under this



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Agreement. Annual Base Salary shall not be reduced after any such increase and the term
Annual Base Salary as utilized in this Agreement shall refer to Annual Base Salary as so increased.
As used in this Agreement, the term “affiliated companies” shall include any company controlled
by, controlling or under common control with the Company.




               (ii) Annual Bonus. In addition to Annual Base Salary, the Executive shall be awarded,
for each fiscal year ending during the Employment Period, an annual bonus (the “Annual Bonus”) in
cash at least equal to the Executive’s average of the bonuses paid or payable under the Company’s
Management Incentive Bonus Plan, or any comparable annual bonus under any predecessor or successor
plan, in respect of the last three full fiscal years prior to the Effective Date (or, if the
Executive was first employed by the Company after the beginning of the earliest of such three
fiscal years, the average of the bonuses paid or payable under such plan(s) in respect of the
fiscal years ending before the Effective Date during which the Executive was employed by the
Company, with such bonus being annualized with respect to any such fiscal year if the Executive was
not employed by the Company for the whole of such fiscal year) (the “Recent Average Bonus”). If
the Executive has not been eligible to earn such a bonus for any period prior to the Effective
Date, the “Recent Annual Bonus” shall mean the Executive’s target annual bonus for the year in
which the Effective Date occurs. Each such Annual Bonus shall be paid no later than two and a half
months after the end of the fiscal year for which the Annual Bonus is awarded, unless the Executive
shall elect to defer the receipt of such Annual Bonus pursuant to an arrangement that meets the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”).



               (iii) Incentive, Savings and Retirement Plans. During the Employment Period, the
Executive shall be entitled to participate in all incentive, savings and retirement plans,
practices, policies and programs applicable generally to other peer executives of the Company and
its affiliated companies, but in no event shall such plans, practices, policies and programs
provide the Executive with incentive opportunities (measured with respect to both regular and
special incentive opportunities, to the extent, if any, that such distinction is applicable),
savings opportunities and retirement benefit opportunities, in each case, less favorable, in the
aggregate, than the most favorable of those provided by the Company and its affiliated companies
for the Executive under such plans, practices, policies and programs as in effect at any time
during the 120-day period immediately preceding the Effective Date or if more favorable to the
Executive, those provided generally at any time after the Effective Date to other peer executives
of the Company and its affiliated companies.



               (iv) Welfare Benefit Plans. During the Employment Period, the Executive and/or the
Executive’s family, as the case may be, shall be eligible for participation in and shall receive
all benefits under welfare benefit plans, practices, policies and programs provided by the Company
and its affiliated companies (including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life, accidental death and travel accident
insurance plans and programs) (“Company Welfare Benefit Plans”) to the extent applicable generally
to other peer executives of the Company and its affiliated companies, but if the Company Welfare
Benefit Plans provide the Executive with benefits which are less favorable, in the aggregate, than
the most favorable of such plans, practices, policies and programs in effect for the Executive at
any time during the 120-day period immediately preceding the



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Effective Date (the “Former Company Welfare Benefit Plans”), the Company shall provide the
Executive with supplemental arrangements (such as individual insurance coverage purchased by the
Company for the Executive) such that the Company Welfare Benefit Plans together with such
supplemental arrangements provide the Executive with benefits which are at least as favorable, in
the aggregate, as those provided by the Former Company Welfare Benefit Plans.




               (v) Expenses. During the Employment Period, the Executive shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred by the Executive in accordance
with the most favorable policies, practices and procedures of the Company and its affiliated
companies in effect for the Executive at any time during the 120-day period immediately preceding
the Effective Date or, if more favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and its affiliated companies.



               (vi) Fringe Benefits. During the Employment Period, the Executive shall be entitled
to fringe benefits, including, without limitation, tax and financial planning services, payment of
club dues, and, if applicable, use of an automobile and payment of related expenses, in accordance
with the most favorable plans, practices, programs and policies of the Company and its affiliated
companies in effect for the Executive at any time during the 120-day period immediately preceding
the Effective Date or, if more favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and its affiliated companies;
provided, that such fringe benefits may be provided in cash or in kind, so long as the
after-tax benefits to the Executive of such fringe benefits are not diminished in the aggregate.



               (vii) Office and Support Staff. During the Employment Period, the Executive shall be
entitled to an office or offices of a size and with furnishings and other appointments, and to
personal secretarial and other assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and its affiliated companies at any time during the
120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as
provided generally at any time thereafter with respect to other peer executives of the Company and
its affiliated companies.



               (viii) Vacation. During the Employment Period, the Executive shall be entitled to
paid vacation as well as paid days off for the period between Christmas and January 1, in each case
in accordance with the most favorable plans, policies, programs and practices of the Company and
its affiliated companies as in effect for the Executive at any time during the 365-day period
immediately preceding the Effective Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer executives of the Company and its
affiliated companies.



          5. Termination of Employment. (a) Death or Disability. The Executive’s
employment shall terminate automatically upon the Executive’s death during the Employment Period.
If the Company determines in good faith that the Disability of the Executive has occurred during
the Employment Period (pursuant to the definition of Disability set forth below), it may give to
the Executive written notice in accordance with Section 12(b) of this Agreement of its intention to
terminate the Executive’s employment.




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In such event, the Executive’s employment with the Company shall terminate effective on the
30th day after receipt of such notice by the Executive (the “Disability Effective Date”),
provided that, within the 30 days after such receipt, the Executive shall not have returned
to full-time performance of the Executive’s duties. For purposes of this Agreement, “Disability”
shall mean the absence of the Executive from the Executive’s duties with the Company on a full-time
basis for 180 consecutive business days (or for 180 business days in any consecutive 365 days) as a
result of incapacity due to mental or physical illness which is determined to be total and
permanent by a physician selected by the Company or its insurers and acceptable to the Executive or
the Executive’s legal representative.




          (b) Cause. The Company may terminate the Executive’s employment during the Employment
Period with or without Cause. For purposes of this Agreement, “Cause” shall mean:





          (i) the willful and continued failure of the Executive to perform substantially the
Executive’s duties with the Company or one of its affiliates (other than any such failure
resulting from incapacity due to physical or mental illness or following the Executive’s
delivery of a Notice of Termination for Good Reason), after a written demand for
substantial performance is delivered to the Executive by the Board or the Chief Executive
Officer of the Company which specifically identifies the manner in which the Board or Chief
Executive Officer of the Company believes that the Executive has not substantially
performed the Executive’s duties, or




          (ii) the willful engaging by the Executive in illegal conduct or gross misconduct
which is materially and demonstrably injurious to the Company.




For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered “willful” unless it is done, or omitted to be done,
by the Executive in bad faith or without reasonable belief that the Executive’s
action or omission was in the best interests of the Company. Any act, or failure
to act, based upon authority given pursuant to a resolution duly adopted by the
Board, or if the Company is not the ultimate parent entity and is not
publicly-traded, the board of directors (or, for a non-corporate entity,
equivalent governing body) of the ultimate parent of the Company (the “Applicable
Board”)or upon the instructions of the Chief Executive Officer of the Company or a
senior officer of the Company or based upon the advice of counsel for the Company
shall be conclusively presumed to be done, or omitted to be done, by the Executive
in good faith and in the best interests of the Company. The cessation of
employment of the Executive shall not be deemed to be for Cause unless and until
there shall have been delivered to the Executive a copy of a resolution duly
adopted by the affirmative vote of not less than three-quarters of the entire
membership of the Applicable Board (excluding the Executive if the Executive is a
member of the Applicable Board) at a meeting of the Applicable Board called and
held for such purpose (after reasonable notice is provided to the Executive and
the Executive is given an opportunity, together with counsel for the Executive, to
be heard before the Applicable Board), finding that, in the good faith



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opinion of the Applicable Board, the Executive is guilty of the conduct described
in subparagraph (i) or (ii) above, and specifying the particulars thereof in
detail.



          (c) Good Reason. The Executive’s employment may be terminated by the Executive for
Good Reason or by the Executive voluntarily without Good Reason. For purposes of this Agreement,
“Good Reason” shall mean:





          (i) the assignment to the Executive of any duties inconsistent in any respect with the
Executive’s position (including status, offices, titles and reporting requirements),
authority, duties or responsibilities as contemplated by Section 4(a) of this Agreement, or
any other diminution in such position, authority, duties or responsibilities (whether or
not occurring solely as a result of the Company’s ceasing to be a publicly traded entity),
excluding for this purpose an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company promptly after receipt of notice thereof
given by the Executive;




          (ii) any failure by the Company to comply with any of the provisions of Section 4(b)
of this Agreement, other than an isolated, insubstantial and inadvertent failure not
occurring in bad faith and which is remedied by the Company promptly after receipt of
notice thereof given by the Executive;




          (iii) the Company’s requiring the Executive to be based at any office or location
other than as provided in Section 4(a)(i)(B) hereof or the Company’s requiring the
Executive to travel on Company business to a substantially greater extent than required
immediately prior to the Effective Date;




          (iv) any purported termination by the Company of the Executive’s employment otherwise
than as expressly permitted by this Agreement; or




          (v) any failure by the Company to comply with and satisfy Section 11(c) of this
Agreement.


For purposes of this Section 5(c), any good faith determination of “Good Reason” made by the
Executive shall be conclusive.




          (d) Incapacity. The Executive’s mental or physical incapacity following the
occurrence of an event described above in clauses (i) through (v) of Section 5(c) shall not affect
the Executive’s ability to terminate employment for Good Reason and the Executive’s death following
delivery of a Notice of Termination for Good Reason shall not affect the entitlement of the estate
of the Executive to severance payments or benefits provided hereunder upon a termination of
employment for Good Reason.




          (e) Notice of Termination. Any termination of employment by the Company for Cause, or
by the Executive for Good Reason, shall be communicated by Notice of Termination to the other party
hereto given in accordance with Section 12(b) of this Agreement. For purposes of this Agreement, a
“Notice of Termination” means a written notice which (i) indicates the specific termination
provision in this Agreement



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relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive’s employment under the
provision so indicated and (iii) if the Date of Termination (as defined below) is other than the
date of receipt of such notice, specifies the Date of Termination (which date shall be not more
than thirty days after the giving of such notice). The failure by the Executive or the Company to
set forth in the Notice of Termination any fact or circumstance which contributes to a showing of
Good Reason or Cause shall not waive any right of the Executive or the Company, respectively,
hereunder or preclude the Executive or the Company, respectively, from asserting such fact or
circumstance in enforcing the Executive’s or the Company’s rights hereunder.




          (f) Date of Termination. “Date of Termination” means (i) if the Executive’s
employment is terminated by the Company for Cause, or by the Executive for Good Reason, the date of
receipt of the Notice of Termination or any later date specified therein, as the case may be, (ii)
if the Executive’s employment is terminated by the Company other than for Cause or Disability, the
date on which the Company notifies the Executive of such termination, (iii) if the Executive
resigns without Good Reason, the date on which the Executive notifies the Company of such
termination and (iv) if the Executive’s employment is terminated by reason of death or Disability,
the date of death of the Executive or the Disability Effective Date, as the case may be.
Notwithstanding the foregoing, in no event shall the Date of Termination occur until the Executive
experiences a “separation from service” within the meaning of Section 409A of the Code, and
notwithstanding anything contained herein to the contrary, the date on which such separation from
service takes place shall be the “Date of Termination.”




          6. Obligations of the Company upon Termination. (a) Good Reason; Other Than for
Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the
Executive’s employment other than for Cause, Death or Disability or the Executive shall terminate
employment for Good Reason:




          (i) the Company shall pay to the Executive in a lump sum in cash within 30 days after
the Date of Termination the aggregate of the following amounts:




          (A) the sum of (1) the Executive’s Annual Base Salary through the Date of
Termination to the extent not theretofore paid, (2) the Executive’s business
expenses that are reimbursable pursuant to Section 4(b)(v) but have not been
reimbursed by the Company as of the Date of Termination; (3) the Executive’s Annual
Bonus for the fiscal year immediately preceding the fiscal year in which the Date
of Termination occurs, if such bonus has been determined but not paid as of the
Date of Termination; (4) any accrued vacation pay to the extent not theretofore
paid (the sum of the amounts described in subclauses (1), (2), (3) and (4), the
“Accrued Obligations”) and (5) an amount equal to the product of (x) the Recent
Average Bonus and (y) a fraction, the numerator of which is the number of days in
the current fiscal year through the Date of Termination, and the denominator of
which is 365 (the “Pro Rata Bonus”); provided, that notwithstanding the
foregoing, if the Executive has made an irrevocable election under any deferred
compensation arrangement subject to Section 409A of the Code to defer any portion
of the Annual Base Salary or the Annual Bonus described in clauses (1) or (3)
above,



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then for all purposes of this Section 6 (including, without limitation,
Sections 6(b) through 6(d)), such deferral election, and the terms of the
applicable arrangement shall apply to the same portion of the amount described in
such clause (1) or clause (3), and such portion shall not be considered as part of
the “Accrued Obligations” but shall instead be an “Other Benefit” (as defined
below); and




               (B) the amount equal to the product of (1) [two/three] and (2) the sum of (x)
the Executive’s Annual Base Salary and (y) the Recent Average Bonus; and




               (C) an amount equal to the product of (1) [two/three] and (2) the sum of (a)
the Company Retirement Contributions (as defined in the BorgWarner Inc. Retirement
Savings Plan (“RSP”)) that would have been made under the RSP for the first Plan
Year (as defined in the RSP) ending after the Date of Termination if there had been
no Limitations (as defined below) on such Company Retirement Contributions and (b)
an amount equal to the Company Matching Contributions (as defined in the RSP) that
would have been made under the RSP in the first Plan Year after the Date of
Termination if there had been no Limitations on such Company Matching
Contributions, and assuming for these purposes that the Executive had elected to
defer the maximum amount of Compensation (as defined in the RSP) permitted by the
RSP (without regard to any Limitations on such deferral), and assuming for purposes
of calculating the amounts in clauses (a) and (b) that the Executive had remained
employed by the Company through the end of such Plan Year with compensation equal
to that required by Section 4(b)(i) and Section 4(b)(ii) of this Agreement
(“Limitations” meaning limitations contained in the RSP, the Employee Retirement
Income Security Act (“ERISA”) or the Code (including without limitation the
$150,000 cap on Compensation);





            (ii) for two years following the Date of Termination (the “Benefits Period”), the
Company shall provide the Executive and his eligible dependents with medical and dental
insurance coverage (the “Health Care Benefits”) and life insurance benefits no less
favorable to those which the Executive and his spouse and eligible dependents were
receiving immediately prior to the Date of Termination or, if more favorable to such
persons, as in effect generally at any time thereafter with respect to other peer
executives of the Company and the Affiliated Companies; provided, however,
that the Health Care Benefits shall be provided during the Benefits Period in such a manner
that such benefits are excluded from the Executive’s income for federal income tax
purposes; provided, further, however, that if the Executive becomes
re-employed with another employer and is eligible to receive health care benefits under
another employer-provided plan, the health care benefits provided hereunder shall be
secondary to those provided under such other plan during such applicable period of
eligibility. The receipt of the Health Care Benefits shall be conditioned upon the
Executive continuing to pay the Applicable Cobra Premium with respect to the level of
coverage that the Executive has elected for the Executive and the Executive’s spouse and
eligible dependents (e.g., single, single plus one, or family). During the portion of the
Benefits Period in which the Executive and his eligible dependents continue to receive
coverage under the



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Company’s Health Care Benefits plans, the Company shall pay to the Executive a monthly
amount equal to the Applicable COBRA Premium in respect of the maximum level of coverage
that the Executive could have elected to receive for the Executive and the Executive’s
spouse and eligible dependents if the Executive were still an employee of the Company
during the Benefits Period (e.g., single, single plus one, or family) regardless of what
level of coverage is actually elected , which payment shall be paid in advance on the first
payroll day of each month, commencing with the month immediately following the Executive’s
Date of Termination. The Company shall use its reasonable best efforts to ensure that,
following the end of the Benefit Period, the Executive and the Executive’s spouse and
eligible dependents shall be eligible to elect continued health coverage pursuant to
Section 4980B of the Code or other applicable law (“COBRA Coverage”), as if the Executive’s
employment with the Company had terminated as of the end of such period. For purposes of
determining eligibility (but not the time of commencement of benefits) of the Executive for
retiree welfare benefits pursuant to the Company’s retiree welfare benefit plans, if any,
the Executive shall be considered to have remained employed until the end of the Benefit
Period and to have retired on the last day of such period. For purposes of this Provision,
“Applicable COBRA Premium” means the monthly premium in effect from time to time for
coverage provided to former employees under Section 4980B of the Code and the regulations
thereunder with respect to a particular level of coverage (e.g., single, single plus one,
or family).




     (iii) the Company shall, at its sole expense as incurred, provide the Executive with
outplacement services the scope and provider of which shall be selected by the Executive in
the Executive’s sole discretion, but the cost thereof shall not exceed $40,000;
provided, further, that such outplacement benefits shall end not later than
the last day of the second calendar year that begins after the Date of Termination; and




     (iv) except as otherwise set forth in the last sentence of Section 7, to the extent
not theretofore paid or provided, the Company shall timely pay or provide to the Executive
any other amounts or benefits required to be paid or provided or which the Executive is
eligible to receive under any plan, program, policy or practice or contract or agreement of
the Company and its affiliated companies (such other amounts and benefits shall be
hereinafter referred to as the “Other Benefits”) in accordance with the terms of the
underlying plans or agreements.


Notwithstanding the foregoing provisions of Section 6(a)(i) and Section 6(a)(ii), in the event that
the Executive is a “specified employee” within the meaning of Section 409A of the Code (as
determined in accordance with the methodology established by the Company as in effect on the Date
of Termination) (a “Specified Employee”), amounts that constitute “nonqualified deferred
compensation” within the meaning of Section 409A of the Code that would otherwise be payable and
benefits that would otherwise be provided under Section 6(a)(i) or Section 6(a)(ii) during the
six-month period immediately following the Date of Termination (other than the Accrued Obligations)
shall instead be paid, with interest on any delayed payment at the applicable federal rate provided
for in Section 7872(f)(2)(A) of the Code (“Interest”) determined as of the Date of Termination,



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or provided on the first business day after the date that is six months following the Executive’s
Date of Termination (the “Delayed Payment Date”);




          (b) Death. If the Executive’s employment is terminated by reason of the Executive’s
death during the Employment Period, the Company shall provide the Executive’s estate or
beneficiaries with the Accrued Obligations and the Pro Rata Bonus and the timely payment or
delivery of the Other Benefits, and shall have no other severance obligations under this Agreement.
The Accrued Obligations (subject to the proviso set forth in Section 6(a)(1)(A) to the extent
applicable) and the Pro Rata Bonus shall be paid to the Executive’s estate or beneficiary, as
applicable, in a lump sum in cash within 30 days of the Date of Termination. With respect to the
provision of the Other Benefits, the term “Other Benefits” as utilized in this Section 6(b) shall
include, without limitation, and the Executive’s estate and/or beneficiaries shall be entitled to
receive, benefits (either pursuant to a plan, program, practice or policy or an individual
arrangement) at least equal to the most favorable benefits provided by the Company and the
affiliated companies to the estates and beneficiaries of peer executives of the Company and such
affiliated companies under such plans, programs, practices and policies relating to death benefits,
if any, as in effect with respect to other peer executives and their beneficiaries at any time
during the 120-day period immediately preceding the Effective Date or, if more favorable to the
Executive’s estate and/or the Executive’s beneficiaries, as in effect on the date of the
Executive’s death with respect to other peer executives of the Company and its affiliated companies
and their beneficiaries.




          (c) Disability. If the Executive’s employment is terminated by reason of the
Executive’s Disability during the Employment Period, the Company shall provide the Executive with
the Accrued Obligations and Pro Rata Bonus and the timely payment or delivery of the Other Benefits
in accordance with the terms of the underlying plans or agreements, and shall have no other
severance obligations under this Agreement. The Accrued Obligations (subject to the proviso set
forth in Section 6(a)(1)(A) to the extent applicable) and the Pro Rata Bonus shall be paid to the
Executive in a lump sum in cash within 30 days of the Date of Termination, provided, that
in the event that the Executive is a Specified Employee, the Pro Rata Bonus shall be paid, with
Interest, to the Executive on the Delayed Payment Date. With respect to the provision of the Other
Benefits, the term “Other Benefits” as utilized in this Section 6(c) shall include, and the
Executive shall be entitled after the Disability Effective Date to receive, disability and other
benefits (either pursuant to a plan, program, practice or policy or an individual arrangement) at
least equal to the most favorable of those generally provided by the Company and the affiliated
companies to disabled executives and/or their families in accordance with such plans, programs,
practices and policies relating to disability, if any, as in effect generally with respect to other
peer executives and their families at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive and/or the Executive’s family, as in effect
at any time thereafter generally with respect to other peer executives of the Company and the
affiliated companies and their families.




          (d) Cause; Other than for Good Reason. If the Executive’s employment is terminated
for Cause during the Employment Period, the Company shall provide the Executive with the
Executive’s Annual Base Salary (subject to the proviso set forth in Section 6(a)(1)(A) to the
extent applicable) through the Date of Termination, and the timely payment or delivery of the Other
Benefits, and shall have no other



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severance obligations under this Agreement. If the Executive voluntarily terminates
employment during the Employment Period, excluding a termination for Good Reason, the Company shall
provide to the Executive the Accrued Obligations and the Pro Rata Bonus and the timely payment or
delivery of the Other Benefits and shall have no other severance obligations under this Agreement.
In such case, all the Accrued Obligations (subject to the proviso set forth in Section 6(a)(1)(A)
to the extent applicable) and the Pro Rata Bonus shall be paid to the Executive in a lump sum in
cash within 30 days of the Date of Termination, provided, that in the event that the
Executive is a Specified Employee, the Pro Rata Bonus shall be paid, with Interest, to the
Executive on the Delayed Payment Date.




          7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the
Executive’s continuing or future participation in any plan, program, policy or practice provided by
the Company or any of its affiliated companies and for which the Executive may qualify, nor,
subject to Section 12(f), shall anything herein limit or otherwise affect such rights as the
Executive may have under any other contract or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or which the Executive is otherwise entitled to
receive under any plan, policy, practice or program of or any contract or agreement with the
Company or any of its affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract or agreement except
as explicitly modified by this Agreement. Without limiting the generality of the foregoing, the
Executive’s resignation under this Agreement with or without Good Reason, shall in no way affect
the Executive’s ability to terminate employment by reason of the Executive’s “retirement” under any
compensation and benefits plans, programs or arrangements of the affiliated companies, including
without limitation any retirement or pension plans or arrangements or to be eligible to receive
benefits under any compensation or benefit plans, programs or arrangements of the Company or any of
its affiliated companies, including without limitation any retirement or pension plan or
arrangement of the Company or any of its affiliated companies or substitute plans adopted by the
Company or its successors, and any termination which otherwise qualifies as Good Reason shall be
treated as such even if it is also a “retirement” for purposes of any such plan. Notwithstanding
the foregoing, if the Executive receives payments and benefits pursuant to Section 6(a) of this
Agreement, the Executive shall not be entitled to any severance pay or benefits under any severance
plan, program or policy of the Company and the affiliated companies, unless otherwise specifically
provided therein in a specific reference to this Agreement.




          8. Full Settlement; Legal Fees. The Company’s obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which
the Company may have against the Executive or others. In no event shall the Executive be obligated
to seek other employment or take any other action by way of mitigation of the amounts payable to
the Executive under any of the provisions of this Agreement and except as specifically provided in
Section 6(a)(ii), such amounts shall not be reduced whether or not the Executive obtains other
employment. The Company agrees to pay as incurred (within 10 days following the Company’s receipt
of an invoice from the Executive), at any time from the Effective Date through the Executive’s
remaining lifetime (or, if longer, through the 20th anniversary of the Effective Date) to the full
extent permitted by law, all legal fees and expenses which the Executive may reasonably incur as a
result of any contest (regardless of the



12









 






outcome thereof) by the Company, the Executive or others of the validity or enforceability of,
or liability under, any provision of this Agreement or any guarantee of performance thereof whether
such contest is between the Company and the Executive or between either of them and any third
party, and (including as a result of any contest by the Executive about the amount of any payment
pursuant to this Agreement), plus in each case Interest determined as of the date such legal fees
and expenses were incurred. In order to comply with Section 409A of the Code, in no event shall
the payments by the Company under this Section 8 be made later than the end of the calendar year
next following the calendar year in which such fees and expenses were incurred, provided
that the Executive or the Executive’s estate shall have submitted an invoice for such fees and
expenses at least 10 days before the end of the calendar year next following the calendar year in
which such fees and expenses were incurred. The amount of such legal fees and expenses that the
Company is obligated to pay in any given calendar year shall not affect the legal fees and expenses
that the Company is obligated to pay in any other calendar year, and the Executive’s right to have
the Company pay such legal fees and expenses may not be liquidated or exchanged for any other
benefit.




          9. Certain Additional Payments by the Company.




          (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment or distribution in the nature of compensation (within the meaning of
Section 280G(b)(2) of the Code by the Company to or for the benefit of the Executive (whether paid
or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise,
but determined without regard to any additional payments required under this Section 9) (a
“Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest
or penalties are incurred by the Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively referred to as the
“Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up
Payment”) in an amount such that after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without limitation, any
income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed
upon the Gross-Up Payment, but excluding any income taxes and penalties imposed pursuant to Section
409A of the Code, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.




          (b) Subject to the provisions of Section 9(c), all determinations required to be made under
this Section 9, including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be
made by Pricewaterhouse Coopers L.L.P. or such other certified public accounting firm as may be
designated by the Executive (the “Accounting Firm”), which shall provide detailed supporting
calculations both to the Company and the Executive within 15 business days of the receipt of notice
from the Executive that there has been a Payment, or such earlier time as is requested by the
Company. In the event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change of Control, the Executive may appoint another
nationally recognized accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses
of the Accounting Firm shall be borne solely by



13









 






the Company. Any determination by the Accounting Firm shall be binding upon the Company and
the Executive. As a result of the uncertainty in the application of Section 4999 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 9(c) and the Executive thereafter is
required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to
or for the benefit of the Executive.




          (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by the Company of the Gross-Up Payment.
Such notification shall be given as soon as practicable but no later than ten business days after
the Executive is informed in writing 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. The Executive shall not pay
such claim prior to the expiration of the 30-day period following the date on which the Executive
gives such notice to the Company (or such shorter period ending on the date that any payment of
taxes with respect to such claim is due). If the Company notifies the Executive in writing prior
to the expiration of such period that it desires to contest such claim, the Executive 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,




          (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 the Executive 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 9(c), the Company shall control all proceedings taken in connection with such
contest and, at its sole option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of such claim and may,
at its sole option, either pay the tax claimed to the appropriate taxing authority on behalf of the
Executive and direct the Executive to sue for a refund or contest the claim in any permissible
manner, and the Executive agrees 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 pays such claim
and directs the


14









 






Executive to sue for a refund, the Company shall indemnify and hold the Executive 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 payment or with respect to any imputed income with respect to
such payment; and further provided that any extension of the statute of limitations relating to
payment of taxes for the taxable year of the Executive with respect to which such contested amount
is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s
control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be
payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing authority.




          (d) If, after the receipt by the Executive of a Gross-Up Payment or payment by the Company of
an amount on the Executive’s behalf pursuant to Section 9(c), the Executive becomes entitled to
receive any refund with respect to the Excise Tax to which such Gross-Up Payment relates or with
respect to such claim, the Executive shall (subject to the Company’s complying with the
requirements of Section 9(c)) promptly pay to the Company the amount of such refund (together with
any interest paid or credited thereon after taxes applicable thereto). If, after payment by the
Company of an amount on the Executive’s behalf pursuant to Section 9(c), a determination is made
that the Executive shall not be entitled to any refund with respect to such claim and the Company
does not notify the Executive in writing of its intent to contest such denial of refund prior to
the expiration of 30 days after such determination, then the amount of such payment shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.




          (e) Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the
Company to the Executive within five days of the receipt of the Accounting Firm’s determination;
provided that, the Gross-Up Payment shall in all events be paid no later than the end of
the Executive’s taxable year next following the Executive’s taxable year in which the Excise Tax
(and any income or other related taxes or interest or penalties thereon) on a Payment are remitted
to the Internal Revenue Service or any other applicable taxing authority or, in the case of amounts
relating to a claim described in Section 8(c) that does not result in the remittance of any
federal, state, local and foreign income, excise, social security and other taxes, the calendar
year in which the claim is finally settled or otherwise resolved. Notwithstanding any other
provision of this Section 9, the Company may, in its sole discretion, withhold and pay over to the
Internal Revenue Service or any other applicable taxing authority, for the benefit of the
Executive, all or any portion of any Gross-Up Payment, and the Executive hereby consents to such
withholding.




          10. Confidential Information. The Executive shall hold in a fiduciary capacity for
the benefit of the Company all secret or confidential information, knowledge or data relating to
the Company or any of its affiliated companies, and their respective businesses, which shall have
been obtained by the Executive during the Executive’s employment by the Company or any of its
affiliated companies and which shall not be or become public knowledge (other than by acts by the
Executive or representatives of the Executive in violation of this Agreement). After termination
of the Executive’s employment with the Company, the Executive shall not, without the prior written
consent of the Company or as may otherwise be required by law or legal process, communicate or
divulge any such information, knowledge or data to anyone other than the Company and those persons
designated by it. In no event shall an asserted violation of the



15









 






provisions of this Section 10 constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under this Agreement, but the Company otherwise shall be
entitled to all other remedies that may be available to it at law or equity.




          11. Successors. (a) This Agreement is personal to the Executive and without the
prior written consent of the Company shall not be assignable by the Executive other than by will or
the laws of descent and distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive’s legal representatives.




          (b) This Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns. Except as provided in Section 11(c), without the prior written consent of
the Executive this Agreement shall not be assignable by the Company.




          (c) The Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Company to assume expressly 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. 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.




          12. Miscellaneous. (a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, without reference to principles of conflict of
laws. The captions of this Agreement are not part of the provisions hereof and shall have no force
or effect. Subject to the last sentence of Section 12(g), this Agreement may not be amended or
modified other than by a written agreement executed by the parties hereto or their respective
successors and legal representatives.




          (b) All notices and other communications hereunder shall be in writing and shall be given by
hand delivery to the other party or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:



If to the Executive:



                                                            



                                                            



                                                            



If to the Company:



BorgWarner Inc.



3850 Hamlin Road




16









 




Auburn Hills, Michigan 48326



Attention: General Counsel



or to such other address as either party shall have furnished to the other in writing in accordance
herewith. Notice and communications shall be effective when actually received by the addressee.




          (c) The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement.




          (d) The Company may withhold from any amounts payable under this Agreement such Federal,
state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or
regulation.




          (e) The Executive’s or the Company’s failure to insist upon strict compliance with any
provision hereof or any other provision of this Agreement or the failure to assert any right the
Executive or the Company may have hereunder, including, without limitation, the right of the
Executive to terminate employment for Good Reason pursuant to Section 5(c)(i)-(v) of this
Agreement, shall not be deemed to be a waiver of such provision or right or any other provision or
right of this Agreement.




          (f) The Executive and the Company acknowledge that, except as may otherwise be provided under
any other written agreement between the Executive and the Company, the employment of the Executive
by the Company is “at will” and, subject to Section 1(a) of this Agreement, prior to the Effective
Date, the Executive’s employment may be terminated by either the Executive or the Company at any
time prior to the Effective Date, in which case the Executive shall have no further rights under
this Agreement. From and after the Effective Date this Agreement shall supersede any other
agreement between the parties with respect to the subject matter hereof.




          (g) The Agreement is intended to comply with the requirements of Section 409A of the Code or
an exemption or exclusion therefrom and, with respect to amounts that are subject to Section 409A
of the Code, shall in all respects be administered in accordance with Section 409A of the Code.
Each payment under this Agreement shall be treated as a separate payment for purposes of Section
409A of the Code. In no event may the Executive, directly or indirectly, designate the calendar
year of any payment to be made under this Agreement. If the Executive dies following the Date of
Termination and prior to the payment of the any amounts delayed on account of Section 409A of the
Code, such amounts shall be paid to the personal representative of the Executive’s estate within 30
days after the date of the Executive’s death. All reimbursements and in-kind benefits provided
under this Agreement that constitute deferred compensation within the meaning of Section 409A of
the Code shall be made or provided in accordance with the requirements of Section 409A of the Code,
including, without limitation, that (i) in no event shall reimbursements by the Company under this
Agreement be made later than the end of the calendar year next following the calendar year in which
the applicable fees and expenses were incurred, provided, that the Executive shall have
submitted an invoice for such fees and expenses at least 10 days before the end of the calendar
year next following the calendar year in which such fees



17









 






and expenses were incurred; (ii) the amount of in-kind benefits that the Company is obligated
to pay or provide in any given calendar year shall not affect the in-kind benefits that the Company
is obligated to pay or provide in any other calendar year; (iii) the Executive’s right to have the
Company pay or provide such reimbursements and in-kind benefits may not be liquidated or exchanged
for any other benefit; and (iv) in no event shall the Company’s obligations to make such
reimbursements or to provide such in-kind benefits apply later than the Executive’s remaining
lifetime (or if longer, through the 20th anniversary of the Effective Date). Prior to the
Effective Date but within the time period permitted by the applicable Treasury Regulations, the
Company may, in consultation with the Executive, modify the Agreement, in the least restrictive
manner necessary and without any diminution in the value of the payments to the Executive, in order
to cause the provisions of the Agreement to comply with the requirements of Section 409A of the
Code, so as to avoid the imposition of taxes and penalties on the Executive pursuant to Section
409A of the Code.




          13. Survivorship. Upon the expiration or other termination of this Agreement or the
Executive’s employment, the respective rights and obligations of the parties hereto shall survive
to the extent necessary to carry out the intentions of the parties under this Agreement.




          IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and, pursuant to the
authorization from its Board of Directors, the Company has caused this Agreement to be executed in
its name on its behalf, all as of the day and year first above written.




	 	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	BORGWARNER INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 






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