EXECUTIVE EMPLOYMENT
AGREEMENT
This
Executive Employment Agreement (“Agreement”), dated for
reference purposes only as of the 16 th day of December, 2008, is entered into by and
between Dana Holding Corporation, a Delaware corporation, with its
principal executive office at 4500 Dorr Street, Toledo, Ohio (the
“Company”), and Robert H. Marcin, an individual,
residing in Michigan (“Executive”), effective as of
January 1, 2009 (the “Effective Date”).
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A.
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The
Company and Executive entered into an Executive Employment
Agreement dated April 16, 2008, effective February 4,
2008 (the “2008 Agreement”). Under the terms of the
2008 Agreement, Executive has been employed as Chief Administrative
Officer of the Company.
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B.
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The
parties wish to amend certain terms of Executive’s employment
with the Company to be effective as of January 1,
2009.
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Therefore,
in consideration of the promises and respective covenants and
agreements of the parties herein contained, and intending to be
legally bound, the parties hereto agree as follows:
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1.
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Employment; 2008
Agreement . The Company and Executive hereby
agree that as of the Effective Date Executive will be employed by
the Company on the terms set forth in this Agreement. The Company
and Executive intend that the 2008 Agreement shall continue to
govern Executive’s employment until the Effective Date, and
that any matters that arise during the term of the 2008 Agreement
before the Effective Date will be governed by the 2008 Agreement.
As of the Effective Date, Executive’s employment with the
Company will be governed exclusively by the terms of this Agreement
and will not be governed by the 2008 Agreement.
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2.
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Term . The employment of Executive by the
Company under the terms of this Agreement will commence on the
Effective Date and shall continue until terminated as set forth in
Section 5 of this Agreement (the
“Term”).
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3.
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Position and Duties
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Executive shall serve as
Chief Administrative Officer of the Company and shall have such
responsibilities and authority commensurate with such position as
may from time to time be assigned to Executive by the Board of
Directors of the Company, the Executive Chair of the Board of
Directors, and/or the Chief Executive Officer. Executive shall
devote substantially all his working time and efforts to the
business and affairs of the Company.
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4.
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Compensation and Related
Matters .
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4.1
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Salary . The Company shall pay to Executive
a salary of U.S. $540,000 per year (the “Base Salary”),
which rate may be increased from time to time in accordance with
normal business practices of the Company. The Base Salary shall be
payable
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by the Company
in accordance with the normal payroll practices of the Company then
in effect.
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4.2
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Annual Bonus, Equity Participation
and Long Term Incentive Plan . Executive will be eligible to
participate in any annual bonus, stock equity participation and
long term incentive programs generally applicable to senior
executives and as approved by the Board of Directors.
Executive’s eligibility for bonuses or other incentives under
any such programs will be based on the recommendation of the
Executive Chair of the Board of Directors or the Chief Executive
Officer of the Company, subject to any other requirements
applicable to such programs. Specifically, Executive will be
eligible for an annual bonus with a target of 75% of the Base
Salary. Executive’s eligibility for the bonus and the amount
thereof will be based on the achievement of performance measures to
be set by the Board of Directors. If the Company terminates
Executive’s employment without Cause or if Executive
terminates for Good Reason or if there is a Change in Control
within eighteen (18) months of the Effective Date, Executive
will be entitled to payment of the entire annual bonus compensation
Executive would otherwise have been eligible to receive for the
twelve-month period following termination (whether or not any
applicable performance measures are achieved). If the Company
terminates Executive’s employment for Cause during a Term,
Executive will not be entitled to payment of any portion of the
annual bonus compensation for the year in which the termination
occurred. If Executive’s employment terminates for any other
reason during the Term, Executive will at a minimum be entitled to
payment of the annual bonus compensation pro rated to the effective
date of the termination.
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4.3
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Stock Options
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The Company has awarded
Executive, as of October 31, 2008, a stock option (the
“Option”) under the Company’s 2008 Omnibus
Incentive Plan (the “2008 Plan”) to purchase up to
125,000 shares of the Company’s Common Stock (the
“Option Shares”) at an exercise price of $1.90 per
share, which is the closing stock price of the shares of the
Company’s Common Stock as of the date of the award. The grant
of the Option Shares will be documented in a Nonqualified Stock
Option Agreement to be entered into between the Company and
Executive. The Option Shares shall vest and become exercisable by
Executive ratably over a three (3) year period if Executive
remains continuously employed by the Company until Executive is
eligible for Normal Retirement; provided , however, that if
Executive dies or becomes disabled, or in the event of a Change in
Control, any unvested Option Shares shall immediately vest and
become exercisable. For the avoidance of doubt, the Option Shares
will continue to vest and will not be forfeited in the event of
Executive’s termination of employment if Executive is
eligible for Normal Retirement at the time of the termination.
Further, if Executive is eligible for Normal Retirement at the time
of termination, the Option shall terminate five (5) years
after Executive ceases to be an employee or ten (10) years from the
date of the award, whichever is earlier. For purposes of this
Agreement, “Change in Control” and “Normal
Retirement” shall have the meaning provided in the 2008 Plan.
The terms of this Agreement will supercede and take precedence over
any terms of the Nonqualified Stock
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Option
Agreement to the extent the terms of the Nonqualified Stock Option
Agreement are contradictory or inconsistent with the terms of this
Agreement.
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4.4
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Performance Shares
. The Company grants to
Executive 31,250 performance shares under the 2008 Plan (the
“Performance Shares”), vesting ratably over a three (3)
year period if Executive remains continuously employed by the
Company until Executive is eligible for Normal Retirement;
provided , however, that if Executive dies or becomes
disabled, or in the event of a Change in Control, any unvested
Performance Shares shall immediately vest. For the avoidance of
doubt, the Performance Shares will continue to vest and will not be
forfeited in the event of Executive’s termination of
employment if Executive is eligible for Normal Retirement at the
time of the termination. The Performance Shares will be awarded
based on the attainment of Management Objectives (as defined in the
2008 Plan), which Management Objectives will be determined by the
Compensation Committee of the Board of Directors in accordance with
its standard practices. The Performance Shares will be earned and
paid in shares of the Company’s Common Stock upon
certification by the Compensation Committee that the applicable
Management Objectives have been satisfied.
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4.5
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Restricted Stock
Units .
The Company grants to Executive 31,250 restricted stock units under
the 2008 Plan (the “Restricted Stock Units”), vesting
ratably over a three (3) year period (the “Restriction
Period”) if Executive remains continuously employed by the
Company until Executive is eligible for Normal Retirement;
provided , however, that if Executive dies or becomes
disabled, or in the event of a Change in Control, any unvested
Restricted Stock Units shall immediately vest. For the avoidance of
doubt, the Restricted Stock Units will continue to vest and will
not be forfeited in the event of Executive’s termination of
employment before the expiration of the Restriction Period if
Executive is eligible for Normal Retirement at the time of the
termination. Upon vesting, the Restricted Stock Units will be
earned and paid in shares of the Company’s Common
Stock.
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4.6
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Additional Payments
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4.6.1
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To
the extent any compensation received under the Nonqualified Stock
Option Agreement, under any other awards under the 2008 Plan or
under this Agreement would be subject to the tax imposed by
Section 4999 of the Code (the “Excise Tax”), the
Company will pay Executive an additional amount (the
“Gross-Up Payment”) such that the net amount retained
by Executive shall be equal to the compensation Executive would
have received had there been no Excise Tax imposed.
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4.6.2
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Upon any payment to Executive in
connection with a Change in Control or a termination of this
Agreement, the Company shall, at the Company’s expense, cause
an independent public accounting firm mutually agreeable to the
Company and Executive to determine whether the payment would be
subject to any Excise Tax and if so, the amount of the Gross-Up
Payment. Such accounting firm shall
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provide detailed supporting
calculations to both the Company and Executive within fifteen
(15) business days after receiving notice that such payments
have been made (or at such earlier time as requested by the
Company). If the accounting firm determines that no Excise Tax is
payable by Executive, the accounting firm shall provide Executive
with a written opinion that the failure to report an excise tax on
Executive’s applicable federal income tax return would not
result in the imposition of any penalty. In the event the Excise
Tax is subsequently determined to be less than the amount taken
into account in calculating the Gross-Up Payment, Executive shall
repay to the Company, at the time that the amount of such reduction
in Excise Tax is finally determined, the portion of the Gross-Up
Payment attributable to such reduction. In the event that the
Excise Tax is determined to exceed the amount taken into account
(including by reason of any payment the existence or amount of
which cannot be determined at the time of the Gross-Up Payment),
the Company shall make an additional gross-up payment to Executive
in respect of such excess (plus any penalty, interest or Excise Tax
payable with respect to such excess) at the time that the amount of
such excess is finally determined, such that Executive retains the
same amount of compensation and benefits Executive would have
received had there been no Excise Tax imposed.
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4.6.3
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The
Company shall pay the Gross-Up Payment not later than the fifth day
following the date of termination of this Agreement (or if there is
no termination, the fifth day following the date of the Change in
Control); provided, however, that if the amount of the Gross-Up
Payment cannot be finally determined on or befo
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