SEPARATION AGREEMENT AND
GENERAL RELEASE
This
Separation Agreement and General Release (hereinafter,
“Separation Agreement”) is made and entered into by and
between Lawrence A. Denton (“Denton”), on the one hand,
and Dura Automotive Systems, Inc. and all of its subsidiaries,
related entities and affiliates (collectively referred to as
“Dura” and/or “Company”), on the other
hand.
A. Dura
employed Denton as its Chief Executive Officer pursuant to a Letter
Agreement dated December 23, 2002 (“Letter
Agreement”), and amended May 8, 2008 (“Letter
Agreement Amendment”).
B. Dura
and Denton entered into a Change of Control Agreement dated
June 16, 2004 (“Change of Control Agreement”), and
amended May 8, 2008 (“Change of Control
Amendment”).
C. Dura
established the 2003 Supplemental Executive Retirement Plan, which
was amended on and as of January 15, 2003 and further amended
on May 8, 2008 (“2003 SERP”) which Plan covered
Denton.
On
July 15, 2008, Denton’s employment at Dura as its CEO
(as well as an Officer and Director in all capacities) ended, and
his employment in any capacity with Dura will end on
December 31, 2008. Dura acknowledges that Denton was not
terminated for gross misconduct (as that term is used in the Letter
Agreement) or Cause (as that term is used in the 2003 SERP), and
was unrelated to either a Sale of the Company (as that term is
defined in the Letter Agreement Amendment) or a Change of Control
(as that term is defined in the Change of Control Agreement), nor
in contemplation of a Change of Control (as that term is defined in
the Change of Control Agreement).
D. Denton
is entitled to certain compensation, benefits and severance
payments in connection with his termination of employment with
Dura, and Denton is subject to certain non-competition,
confidentiality and other restrictions; all of these entitlements
and restrictions are solely as provided in this Separation
Agreement.
E. Denton
and Dura desire to enter into this Seperation Agreement to settle
fully and finally all differences between them, including those
arising in any way out of Denton’s employment with Dura and
the cessation thereof, including releases of claims against each
other as set forth in this Separation Agreement.
F. On
July 16, 2008, Denton and Dura entered into a signed, written
term sheet (“Term Sheet”) regarding Denton’s
separation from Dura, which term sheet called for the parties to
reduce the terms to this formal Separation Agreement.
NOW,
THEREFORE, in consideration of the premises and promises herein
contained, IT IS AGREED AS FOLLOWS:
1.
No Admission of Liabilit y: It is agreed that this Agreement
is not to be construed in any way as an admission of any liability
whatsoever by the Released Parties or Denton, and that any such
liability has been expressly denied.
2.
Transition Date/Separation Date : Dura and Denton agree that
Denton’s employment at Dura as its CEO ended by July 15,
2008 (“Transition Date”), and Denton has transitioned
to a consulting role within the Company which role shall continue
until December 31, 2008 (“Separation Date”). As of
the Separation Date, Denton will cease to be employed by the
Company. His cessation of employment will be characterized
as
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a voluntary resignation.
In conjunction with Denton’s transition, Denton has resigned
his membership on Dura’s Board of Directors, as well as being
a Director or Officer of any and all Dura entities/subsidiaries,
and by signing this Separation Agreement hereby reiterates those
resignations.
3.
Consulting Position : Denton will continue as an employee
consultant to Dura, and will continue to be paid his current
monthly rate of base salary (annualized at a gross amount of
$844,000.00 inclusive of flex pay) and to receive all employee
benefits and executive perquisites (including flex pay), from the
Transition Date through and including the Separation Date (the
Transition Date through and including the Separation Date
hereinafter being referenced as the “Consulting
Period”). As a consultant during the Consulting Period,
Denton will perform such duties as reasonably directed by
Dura’s Board of Directors in its sole discretion; provided,
however, Denton shall not be prohibited from obtaining new
employment during the Consulting Period as long as it does not
unreasonably prevent him from performing his duties as a consultant
to Dura. During the Consulting Period, Denton agrees to reasonably
cooperate with the Company and its Board of Directors. During the
Consulting Period, Denton shall be permitted to maintain his
current home offices and Dura shall continue to support such
offices with its current level of office equipment, email address
and access, and technology support, including secretarial
assistance; provided, however, that if Denton obtains new
employment during the Consulting Period, then Dura’s
obligations to support such offices with its current level of
office equipment, email address and access, and technology support,
including secretarial assistance, shall immediately cease, and it
shall be Dura’s sole option whether or not to continue such
(with the understanding that if Dura does not so continue, then
Denton will not be required to
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perform consulting
services that would require the use of such home equipment or
services). At the Separation Date, Denton shall be entitled to
retain any home office equipment at his discretion. As soon as
practicable after the Transition Date, Denton shall return to Dura
the two (2) Company-provided computers/laptops in his
possession (the computers/laptops in his home offices in
Birmingham, MI and Aspen, CO), and Dura shall contemporaneously
provide Denton with two (2) equivalent
computers/laptops.
4.
Bonus : Dura will pay Denton a one-time bonus in the gross
amount of $800,000.00 for having led the Company out of bankruptcy.
This bonus will be paid on the next regularly scheduled Company pay
date following the Transition Date.
5.
Benefits : Upon the Separation Date, Dura will pay Denton
all vested accrued employee benefits as of the Separation Date in
accordance with their terms and conditions, including but not
limited to his vested account balance under the Company’s
401K Plan and his vested accrued pension benefit under the
Company’s qualified defined benefit plan. Denton shall retain
the right to convert any Company-owned life insurance as of the
Separation Date.
6.
SERP : In consideration for Denton’s compliance with
the conditions under Section 2.8 of the SERP (including the
modified non-competition and non-solicitation restrictions), as
well as the terms of this Separation Agreement, Denton will receive
his vested accrued benefits under the 2003 SERP, in accordance with
its terms and conditions, except as modified herein. Such benefits
will be payable as a single life annuity (with 10 years
certain) commencing on January 1, 2009. Notwithstanding the
foregoing, such annuity payments will be delayed for a period not
to exceed six months and one day; provided, such delayed payments
shall be payable in a lump sum
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payment immediately
following the period of delay (which is July 2, 2009), and the
remaining annuity payments shall continue to be paid on their
original annuity payment schedule. In the event of a change in the
ownership or effective control of the Company, or a change in the
ownership of a substantial portion of the assets of the Company,
which qualifies as a “change in control event” as
described in Treasury Regulation Section 1.409A-3(i)(5),
the lump sum present value (calculated using the actuarial factors
specified in the 2003 SERP for lump sum calculations) of
Denton’s remaining unpaid vested accrued benefits under the
2003 SERP shall be paid to Denton in a lump sum on the date of such
change in control event.
7.
Severance Pay : Denton will receive a gross amount of
$1,688,000.00 (twenty-four (24) months of base salary, at his
current monthly rate of base salary, inclusive of flex pay) as
severance pay. Of that amount, the gross amount of $626,667 will be
payable in a lump sum on January 2, 2009, and the remainder
will be payable in a lump sum on July 2, 2009.
8.
Company Car: Dura will convey title to Denton’s
company car to Denton on January 1, 2009, without
charge.
9.
Continuation of Group Health Plan Coverage: Denton will be
eligible for COBRA group health plan continuation coverage as of
January 1, 2009 for himself and his eligible covered
dependents at the same coverage options then available to other
active executive employees at the same group health plan coverage
cost as other active executive employees for a period of up to (but
not more than) 18 months.
10.
Attorneys’ Fees : Dura will reimburse Denton his
reasonable attorneys’ fees in connection with advice and
counseling regarding the Term Sheet and this Separation Agreement.
In addition, to the extent that Dura breaches the terms of
this
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Separation Agreement, then
it will reimburse Denton his attorneys’ fees incurred in
connection with the enforcement thereof.
11.
Full Payment and Taxes : All payments required to be made by
Dura hereunder shall be subject to any and all applicable
withholdings, including any withholdings for any related federal,
state or local taxes. Denton acknowledges that he shall be
responsible for any and all income taxes or other taxes incurred by
him as a result of his receipt of any payments from Dura pursuant
to the terms of this Separation Agreement.
12.
D&O Coverage : Prior to the Separation Date, Denton will
remain covered by Dura’s current D&O insurance policy in
accordance with its terms. Following the Separation Date and for a
period of not less than six (6) years thereafter, Denton will
remain covered as a former director and officer under Dura’s
D&O insurance policies as in effect from time to time. If Dura
terminates its D&O insurance during the foregoing six-year
period, Dura will purchase tail coverage insuring claims involving
Denton made prior to the expiration of such six-year period. In
addition, Dura shall continue to indemnify Denton pursuant to the
provisions contained in Dura’s bylaws as in effect as of the
date of this Agreement (without amendment).
13.
Non-Disparagement : Denton agrees and promises that he will
not, at anytime hereafter, disparage (in any way) the Company
and/or its Board of Directors, officers, employees, agents, and
affiliates. Likewise, members of the Company’s Board of
Directors, as well as the Company’s Section 16 officers,
agree and promise that they will not disparage (in any way)
Denton.
14.
Non-Competition/Non-Solicitation : During the Transition
Period, and for the consecutive twelve (12) month period
immediately following the Separation Date,
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