SEPARATION
AGREEMENT AND GENERAL RELEASE
This
Separation Agreement and General Release is entered into effective
as of the 2nd day of December, 2008, by and between Robert
Fesenmyer, a U.S. citizen resident at Holland, OH
(“Employee”) and Dana Holding Corporation and its
affiliates and subsidiaries (“Dana”).
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A.
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Employee has been employed by Dana
(or its predecessor) in the United States since September 4, 1973.
Employee’s last day as an active employee will be
December 31, 2008. He has most recently been serving as Vice
President of Logistics Planning and Production Control.
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B.
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The
Employee and Dana have mutually agreed to separate under amicable
circumstances after a full discussion and review of current
circumstances and options related to the severe economic conditions
currently existing in Dana’s markets.
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C.
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Employee and Dana have concluded
that it would be in the best interests of both Employee and Dana to
enter into this Separation Agreement, General Release and Covenant
Not to Sue (the “Agreement”) in order to permit
Employee to separate under mutually agreed terms to pursue other
options outside of Dana.
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D.
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In
order to recognize the above-described concerns, and without either
party admitting any liability to the other except for such
obligations as shall be herein below assumed, Employee and Dana
have agreed as set forth below.
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NOW,
THEREFORE, for value received, the receipt and sufficiency of which
is hereby acknowledged, intending to be bound by this Agreement,
the parties agree as follows:
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1.
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Employment . Employee and Dana agree that
Employee’s current duties at Dana will end, effective
December 23 rd , 2008.
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2.
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Employment Records
. Dana’s records
will indicate that Employee’s employment was ended by
retirement effective December 31, 2008. Employee will receive
his final pay as an active employee at that time together with any
accrued unused vacation. Copies of this Agreement will be
maintained in Employee’s human resources file.
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3.
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Payments/Consideration
. Employee shall receive
the following as consideration for Employee’s acceptance and
execution of this Separation Agreement and Release. Employee
acknowledges that each item listed constitutes special
consideration in exchange for the promises made herein and that
Dana was not otherwise obligated to provide these payments or
benefits to Employee:
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a.
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Upon the receipt of an invoice
detailing the charges, Dana will reimburse Employee for up to the
amount of One Thousand, Five Hundred Dollars ($1,500) for legal
services used by Employee in the negotiation and execution of this
Separation Agreement and Release.
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b.
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Dana shall provide Employee with
outplacement services in the U.S. at a cost of up to $15,000 to be
direct billed to Dana with a firm that may be chosen by the
Employee subject to Dana’s reasonable right of
approval.
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c.
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Employee will receive a lump sum
payment equal to fifty six weeks of base compensation with all
deductions required by law. This payment will be made within
30 days after the expiration of the period for revocation
described below in Paragraph 12 except that to the extent any
part of this payment would be considered “deferred
compensation” not exempt from the requirements of
Section 409A of the Internal Revenue Code as referenced in
Paragraph 11 below, that portion (if any) of the lump sum
payment which exceeds the lesser of (A) two times the
Employee’s annualized compensation from Dana for the 2007
calendar year, or (B) $460,000 (i.e. two times the annual limit on
compensation as may be in effect under Section 401(a)(17) of
the Internal Revenue Code for 2008), shall not be paid to Employee
until six months and one day after the Employee’s termination
date (or, if earlier, upon the Employee’s death).
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4.
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Health Insurance & Other
Benefits. Dana will provide group health
insurance for the Employee until December 31, 2008 as the last
day of the month in which his employment terminated. The Employee
will also receive twelve months of subsidized COBRA (requiring
payment of only the employee’s premium (based on the coverage
chosen) from January 1, 2009 through December 31, 2009).
Subsequently, the Employee shall be entitled to an additional
twelve months of COBRA coverage (at the standard COBRA rate) in
accordance with the legal requirements of COBRA.
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5.
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Other Benefits
. Dana shall provide
Employee with the benefits to which he is entitled in accordance
with the provisions of any applicable Dana plans in which he
participates (including but not limited to the 2008 Dana Holding
Corporation Omnibus Stock Incentive Plan) to the extent that such
benefits represent those that Employee is either vested in or
otherwise entitled to receive. The Senior Management Life Insurance
Plan policy will be assigned to the Employee with the 2008 premium
having been paid. The effective date of his termination for the
purposes of such plans shall be December 31, 2008. It is
expected that no Annual Incentive Plan (“AIP”) payout
will occur due to Dana’s performance against applicable
standards. Nonetheless, if Dana’s Board of Directors should,
in the exercise of its sole discretion, declare a bonus to be
payable to senior executives of the Company, then the Employee will
be eligible for any such payout notwithstanding his separation from
Dana. The Employee’s PERQ allowance will continue through
December 31, 2008 as the end of the Employee’s last
month on the active payroll.
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6.
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General Release
. Employee, on behalf of
himself and his attorneys, agents, representatives, successors,
assigns, heirs, administrators and executors (collectively,
“Releasors”) hereby forever releases and discharges
Dana and any of its affiliates, parent or subsidiary entities,
owners, partners, officers, directors, agents, employees,
representatives, employee benefit plans, plan administrators or
plan sponsors, attorneys and executors (collectively,
“Released Parties”), from any and all claims, demands,
suits, liabilities, charges or grievances of any nature whatsoever,
whether known or unknown, arising prior to the execution of this
Agreement by all parties hereto or relating in any way to
Employee’s employment, severance plans, programs or policies
(including but not limited to the 2008 Voluntary Separation
Program), employment agreements or contracts with Dana or the
termination of such employment or the negotiation and execution of
this Agreement, whether the same be sounding in tort, contract or
for the violation of any federal, state or local statute, code,
common law or ordinance, including, but not limited to, Title VII
of the Civil Rights Act of 1964, as amended, the Age
Discrimination in Employment Act , the Americans with
Disabilities Act, the Family Medical Leave Act, or any parallel
federal or state statute, ordinance or court decision and claims
for attorneys fees and costs. It is understood that this Release
constitutes a general release. Notwithstanding the foregoing to the
contrary, however, Employee does not release Dana from any
obligations of indemnification which flow to the Employee as a
senior executive of Dana, whether under the Bylaws, Restated
Certification of Incorporation, other corporate cons
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