Exhibit 10-O
SEPARATION AGREEMENT, GENERAL RELEASE
AND COVENANT NOT TO XXX
This Separation Agreement, General Release and Covenant Not to Xxx is entered
into this 1st day of October, 2004, by and between Xxxxxx X. Xxxxxxxx, an
individual residing at 0000 Xxxxxxxxx Xx., Xxxxxx, Xxxx 00000 ("Xx. Xxxxxxxx")
and Xxxx Corporation, a Virginia corporation with its principal place of
business located at 0000 Xxxx Xxxxxx, Xxxxxx, Xxxx 00000 ("Xxxx").
RECITALS
A. Xx. Xxxxxxxx has been employed by Xxxx since January 1, 1975. Xx.
Xxxxxxxx'x last day as an active employee will be November 30, 2004. He
has been an A Group executive serving at the direction of Xxxx. He has
most recently served in the position of President, Xxxx Xxxxxxxxxxxxx &
Global Initiatives.
B. As a result of a restructuring, the Company has to eliminate Xx.
Xxxxxxxx'x position. There are no other appropriate positions available
to Xx. Xxxxxxxx within Xxxx.
C. Xx. Xxxxxxxx and Xxxx have concluded that it would be in the best
interests of both Xx. Xxxxxxxx and Xxxx to enter into this Separation
Agreement, General Release and Covenant Not to Xxx (the "Agreement") in
order to permit Xx. Xxxxxxxx to separate under mutually agreed terms.
D. In order to recognize the above-described circumstances, and without
either party admitting any liability to the other except for such
obligations as shall be hereinbelow assumed, Xx. Xxxxxxxx and Xxxx have
agreed as set forth below.
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:
1. Employment. Xx. Xxxxxxxx and Xxxx agree that Xx. Xxxxxxxx'x
current duties at Xxxx will end, effective November 30, 2004.
Xx. Xxxxxxxx will receive accrued unused vacation pay in
December, 2004. Xxxx will then pay Xx. Xxxxxxxx the equivalent
of twelve (12) months of his annual salary ($546,000 per year)
beginning as of December 1, 2004 and his target bonus for 2005
(60% of his base annual salary) (the "Separation Pay"). The
Separation Pay will be paid as follows: Xxxx will pay Xx.
Xxxxxxxx in monthly payments his regular salary as of November
30, 2004, of $546,000 per year, along with a portion of Xx.
Xxxxxxxx'x 2005 target bonus divided into twelve equal
installments, for a twelve (12) month period ending November
30, 2005. If Mr.
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Franklin has not accepted suitable employment by the end of
this 12 month period and represents this to Xxxx in writing,
then Xxxx will extend payments of his monthly salary until the
first to occur of the acceptance of such employment by Xx.
Xxxxxxxx or six months, ending no later than May 31, 2006 (the
"Separation Period"). For this purpose, the parties understand
and agree that occasional and part-time consulting assignments
for companies other than those referenced in Attachment A as
well as full time work for non-profit companies or community
services entities will not be considered as suitable work. The
payments referenced above are inclusive of and not in addition
to the ten (10) months of separation benefits to which Xx.
Xxxxxxxx is entitled pursuant to the Xxxx Income Protection
Plan for Management and Certain Other Employees ("IPP"). Xx.
Xxxxxxxx will also be eligible for a pro-rata bonus under the
Additional Compensation Plan payable in 2005 based on actual
2004 performance and prorated for his actual months of service
in 2004. If this incentive is earned and payment is approved
by the Compensation Committee of the Board of Directors, then
payment will be made to Xx. Xxxxxxxx at the time 2004
short-term incentive payments are made to other participants
under this Plan. At the conclusion of the Separation Period,
Xx. Xxxxxxxx intends to retire and will submit the appropriate
paperwork to effectuate his planned retirement.
2. Employment Records. Dana's records will indicate that Xx.
Xxxxxxxx'x employment was terminated by job elimination
followed by retirement. Copies of this Agreement will be
maintained in Xx. Xxxxxxxx'x human resources file.
3. Availability for Assistance. Xx. Xxxxxxxx shall be available
to assist Xxxx on an as-needed basis during the period of
December 1, 2004 through December 31, 2004 at no additional
cost to Xxxx beyond the payments specified in Paragraph 1
above.
4. Payments/Consideration. Xx. Xxxxxxxx shall receive the
following as consideration for Xx. Xxxxxxxx'x acceptance and
execution of this Separation Agreement, General Release and
Covenant Not to Xxx:
a. Xx. Xxxxxxxx will receive as part of the Separation
Pay, up to a maximum of eight months of pay (subject
to all deductions currently authorized by Xx.
Xxxxxxxx or required by law) in excess of that to
which he would otherwise be entitled under the
applicable Xxxx IPP plan and also payments based upon
his 2005 target bonus. Xx. Xxxxxxxx will also receive
continued health care and life insurance coverage
under Dana's group benefit plans during the entire
Separation Period so long as he makes the required
payment of his share of the premiums. Xx. Xxxxxxxx
will also receive payment based upon his projected
2005 target bonus, equal to 60% of his annual base
salary.
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b. Xx. Xxxxxxxx will accrue credited service for pension
purposes throughout the entire Separation Period, as
well as for purposes of vesting or other restrictions
applicable to Xx. Xxxxxxxx'x outstanding equity
grants, including restricted stock, stock options,
and performance shares, described in Paragraph 6
below and the attached Appendix.
c. Xx. Xxxxxxxx shall be entitled to tax preparation
services for the tax year of 2004.
d. On or after December 1, 2004, a lump sum payment will
be made to Xx. Xxxxxxxx in the amount of $30,000
(less applicable taxes) to cover the incidental costs
of the transition including legal fees for the review
of this document and any desired outplacement. This
payment shall be made in December 2004 unless Xx.
Xxxxxxxx notifies Xxxx in writing that he wishes to
defer payment until January 2005.
e. A more specific summary of the rights that Xx.
Xxxxxxxx will have pursuant to various Xxxx benefit
plans is attached hereto as an Appendix. In order to
ensure mutual understanding, this Appendix will also
explain those benefits and/or options which will
cease between November 30, 2004 and Xx. Xxxxxxxx'x
retirement.
5. Medical Insurance Payment. As described above, Xxxx will
provide medical coverage through the Separation Period at
coverage levels that are consistent with Xx. Xxxxxxxx'x
current or subsequent benefit elections, and in accordance
with the provisions of the plan provided to other active
employees. At retirement Xx. Xxxxxxxx may be eligible for
medical coverage as a retiree, in accordance with the terms of
the applicable Xxxx pension plan.
6. Equity Compensation. During the Separation Period, all of Xx.
Xxxxxxxx'x outstanding equity grants will continue to vest in
accordance with the applicable plan documents, grant
agreements, and/or award certificates. Upon Xx. Xxxxxxxx'x
retirement at the conclusion of the Separation Period, the
applicable retirement provisions of all such plans will apply
to any grants then outstanding. As described more fully in the
attached Appendix, as well as in the plan documents, grant
agreements, and/or award certificates outstanding stock
options granted under Dana's Amended and Restated Stock
Incentive Plan that are not exercised or terminated at the
time of retirement will become exercisable in full beginning
on the date of retirement and ending on the earlier of the
expiration date of the option exercise period or 60 months
after the date of retirement. Xx. Xxxxxxxx may also become
eligible to receive any outstanding restricted stock and
performance share awards on a pro-rata basis as of the date of
retirement. To the extent that any inconsistency exists
between this Agreement, statements in the Appendix, or the
terms and conditions set forth in the applicable plan
documents, grant agreements, and/or award certificates,
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the terms and conditions set forth in the plan documents,
grant agreements, and award certificates will govern.
7. General Release. Xx. Xxxxxxxx, on behalf of himself and his
attorneys, agents, representatives, successors, assigns,
heirs, administrators and executors (collectively,
"Releasors") hereby forever releases and discharges Xxxx 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
Xx. Xxxxxxxx'x employment with Xxxx 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. Xx. Xxxxxxxx also
waives any right he may have to damages if any such claims are
brought by the Equal Employment Opportunity Commission
("EEOC") or other government agency. Xx. Xxxxxxxx recognizes
that Xxxx does not have any obligation to reinstate or
reemploy him, and he agrees not to reapply for employment at
Xxxx or at any Xxxx facility. This Release does not prevent
Xx. Xxxxxxxx from suing Xxxx to enforce Dana's obligations
hereunder nor does it preclude Xx. Xxxxxxxx from filing any
claim for workers' compensation.
8. Covenant Not to Xxx. As specific consideration for the payment
described in Paragraph 4 (d) above, Xx. Xxxxxxxx covenants not
to xxx any of the Released Parties as a result of any claim,
demand, suit, liability, charge, or grievance 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 Xx. Xxxxxxxx'x employment with Xxxx 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 statute, code or
ordinance, including, but not limited to, Title VII of the
Civil Rights of 1964, the Age Discrimination in Employment
Act, the Americans with Disabilities Act or the Family Medical
Leave Act or any parallel state or local statute, ordinance or
common law.
9. Non-Compete and Non-Solicitation. Xx. Xxxxxxxx agrees that he
will not, at any time prior to November 30, 2005, without the
written permission of Xxxx, directly or indirectly, whether as
principal, agent, stockholder, employee, consultant or in any
other capacity, engage in or have a financial interest in any
of the companies referenced on Attachment A hereto or any
business which is
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owned by or affiliated with any of them; provided, however,
that nothing contained herein shall preclude Xx. Xxxxxxxx from
the purchase or ownership of stock in any such business, if
such stock is publicly traded and Xx. Xxxxxxxx'x holdings do
not exceed 1% of the amount of such stock at the time issued
and outstanding; and provided, further, that it shall not be a
violation of this Paragraph (9) should these business entities
acquire a company where Xx. Xxxxxxxx is then serving as a
principal, agent, stockholder, employee, consultant or in any
other capacity. Both Xx. Xxxxxxxx and Xxxx agree that if, in
any action before any court or agency legally empowered to
enforce such covenants, any term, restriction, covenant or
promise is found to be unreasonable and for that reason
unenforceable, then such term, restriction, covenant or
promise shall be deemed to be modified to the extent necessary
to make it enforceable by such court or agency.
10. Non-Disclosure. Xx. Xxxxxxxx agrees at all times to hold all
Confidential information that he acquired during his
employment with Xxxx in trust and confidence and not to
discuss or reveal such Confidential information to any third
party without the prior written consent of Xxxx. For purposes
of this Agreement, Confidential Information shall mean all
information with respect to Xxxx and its affiliates and their
businesses (including without limitation their organization,
technology, finances, customers, suppliers and business plans)
whether or not in written or documented form which is not
available in the public domain.
11. Non-Disparagement. Xx. Xxxxxxxx shall not disparage or
criticize Xxxx or any of its businesses or employees to third
parties outside of Xxxx. Further, Xxxx will not disparage or
criticize Xx. Xxxxxxxx to prospective employers or to third
parties outside of Xxxx. Provided however, that neither Xxxx
nor Xx. Xxxxxxxx shall be held in violation of this provision
for any statements believed to be truthful if such statement
is required by law, legal process or made with the consent of
the other party.
12. Confidentiality. The parties agree that this Agreement, and
the terms hereof, and all statements made to Xx. Xxxxxxxx and
his wife, lawyers and tax or financial advisors in connection
with the negotiations of this Agreement or the implementation
of its terms are confidential and may not be disclosed in any
manner to any third party except in a proceeding to enforce
the terms hereof or if required by law (and in such event only
to the extent such disclosure is required by law) or legal
process. Xx. Xxxxxxxx further agrees that he shall not
communicate, either orally or in writing, any negative,
adverse or derogatory information, facts, opinions or beliefs
concerning any of the Released Parties to any third party
provided however that Xx. Xxxxxxxx shall not be held in
violation of this provision for any statement made if required
by law, legal process or with the consent of Xxxx.
13. Consideration of Agreement. Xx. Xxxxxxxx acknowledges that he
has twenty-
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one (21) days from his receipt of this Agreement to decide if
he wishes to agree to its terms, and that he is under no
obligation to communicate his decision whether or not to
execute this Agreement before the 21-day period has expired.
Xx. Xxxxxxxx further acknowledges that he has seven (7) days
after he has signed this Agreement to revoke the Agreement,
and the Agreement shall neither be effective nor enforceable
until after the seven (7) day period has expired. Any
revocation of this Agreement must be in writing and delivered
to Dana's Human Resource Manager at the corporate office
before the expiration of the seven (7) days.
14. Discussion with Counsel. Xx. Xxxxxxxx acknowledges that he has
been given an ample opportunity to fully discuss the terms of
this Agreement with counsel of his own choosing and that, in
fact, Xxxx has suggested to him that he take such opportunity.
Xx. Xxxxxxxx understands and voluntarily accepts the terms of
this Agreement, and believes it to be a fair and reasonable
settlement of any and all outstanding issues between the
parties.
15. No Admission. It is expressly understood and agreed that, by
entering into this Agreement, none of the parties hereto are
admitting any wrongdoing or liability, and that all parties
expressly deny having engaged in any unlawful conduct of any
nature.
16. Severability. Except as specifically provided in Paragraph 9,
should any provision of this Agreement be held to be illegal
or unenforceable by a court of competent jurisdiction, it
shall be deemed severed from the Agreement and the remaining
provisions shall remain fully enforceable.
17. Complete Agreement. This Agreement represents the complete and
entire understanding of the parties, and supersedes all prior
agreements, representations, and understandings, express or
implied, concerning the subject matter hereof. This Agreement
may only be amended in writing signed by the parties.
18. Assignability. Neither this Agreement nor any rights or
obligations hereunder may be assigned by either party without
the express written consent of the other party hereto except
that in the unfortunate and unlikely event of Xx. Xxxxxxxx'x
death before the receipt of all payments under Paragraphs 1,
4a, 4d, 4e and 8, and his receipt of all benefits under
Paragraph 4b, 4c, 5 and 6, Xx. Xxxxxxxx'x heirs,
beneficiaries, and/or representative shall be entitled to all
such payments and benefits on the same terms and conditions as
Xx. Xxxxxxxx would receive them under this Agreement were he
alive, subject to the terms and conditions of the specific
benefit plans referenced in the Appendix hereto.
19. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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20. Choice of Law. This Agreement shall be deemed to have been
made at Toledo, Ohio and shall be interpreted in accordance
with Ohio law without regard to choice of law provisions.
21. Disputes. The parties agree to utilize arbitration for
disputes regarding the interpretation or enforcement of this
Agreement prior to resort to a judicial forum except to
enforce rights under Paragraphs 10, 11 and 12 above. In the
case of such enforcement actions, resort to court for
injunctive remedies shall be immediately available.
Arbitration hereunder shall take place in Toledo, Ohio using
the commercial dispute rules of the American Arbitration
Association.
The parties acknowledge and understand that this Agreement has been
negotiated at arm's length between the parties and that each party has had the
opportunity to fully consult with counsel of their own choosing and is
completely informed with respect to the terms, covenants, conditions, and
obligations contained in this Agreement and the meaning and effect thereof. Each
party has freely and voluntarily entered into this Agreement with the full
knowledge of its impact and effect.
IN WITNESS WHEREOF, the parties have duly executed this Agreement by
their signatures below.
WITNESS: /s/ Xxxx X. Xxxxxx NAME: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
WITNESS: /s/ Xxxx X. Xxxxxx XXXX CORPORATION
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/s/ Xxxxxxx X. Xxxxxxxx
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By: Xxxxxxx X. Xxxxxxxx
Title: V.P. Human Resources
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