Exhibit 10-N
April 12, 2004
Xx. Xxxxxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Dear Xxxx:
This letter, when executed by both parties, shall constitute an
Agreement between Xxxx Corporation ("Xxxx") and you regarding monies, benefits
and other consideration that will be paid to you in connection with your
retirement from employment at Xxxx and in return for the obligations you have
assumed hereunder.
(1) Mutual Agreement. We both agree that for purposes of calculating your
benefits under all Xxxx benefit, retirement and compensation plans,
your retirement date from Xxxx will be deemed to be April 1, 2004.
(2) Dana's Payments. Xxxx will make payment to you of consideration in the
aggregate amount of $933,000 to be paid in three (3) equal cash
installments.
The first installment will be paid within 30 days after the execution
of this Agreement. The second installment will be paid no later than
August 31, 2004, and the third and final installment will be paid no
later than November 30, 2004.
In the event of your death after the date of execution of this
Agreement but before all three payments have been received, your
surviving spouse (or if you have no surviving spouse, your estate)
shall be entitled to receive a lump sum benefit equal to the amount of
the aggregate payment that remains unpaid as of the date of your death.
(3) Payment Is in Addition to Plan Benefits. The payment described in
Paragraph (2) above shall be in addition to any benefits to which you
are entitled as a retiree pursuant to the provisions of any Xxxx
retirement, benefit or compensation plan, including, without
limitation, the Xxxx Corporation Retirement Plan ("CashPlus"), the Xxxx
Corporation Savings and Investment Plan, the Excess Benefits Plan, the
1999 Restricted Stock Plan, the Supplemental Benefits Plan, the Stock
Incentive Plan and Additional Compensation Plan.
(4) Taxes. It is anticipated that the payment described in Paragraph (2)
above will not be subject to withholding of taxes of any kind and that
a Form 1099 will be issued
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for these payments. Xxxx, however, reserves the right to withhold taxes
in the event that tax counsel of Dana's choosing should provide Xxxx
with a legal opinion that such withholdings are required by any
applicable law. Notwithstanding the foregoing, and regardless of
whether Xxxx satisfies any withholding obligations imposed upon it by
applicable law, you (or, if applicable, your spouse or your estate)
shall be liable for any income or other taxes imposed on any payment
made under this Letter Agreement.
(5) Unfunded Obligation. The payment described in Paragraph (2) above shall
be paid by Xxxx out of its general assets, and shall not be funded in
any manner.
(6) No Assignment. Subject to the provisions of paragraph (7), below, any
attempt, voluntary or involuntary, to alienate or assign any benefit or
right under this Letter Agreement, shall be null, void and of no
effect.
(7) Successors. This Agreement shall be binding upon and shall inure to the
benefit of (a) you and your heirs, successors and assigns, and (b) Xxxx
and any successor of Xxxx including, without limitation, any
corporation or corporations acquiring directly or indirectly all or
substantially all of the assets of Xxxx, whether by merger,
consolidation, sale or otherwise, but shall not otherwise be assignable
by Xxxx.
(8) Non-Disclosure. You shall not disclose to anyone (except your spouse,
attorney, accountant or financial planner, or as required by law) any
information concerning the existence or details of this Agreement,
unless such disclosure is authorized in writing by Xxxx or Xxxx has
previously disclosed this Agreement as required by law. You further
agree to take all reasonable precautions to protect against the
disclosure of the details of this Agreement to any other person (except
for your spouse, attorney, accountant or financial planner, or as
required by law). You acknowledge and agree that Xxxx xxx make such
disclosures of this Agreement as it may determine, in its sole
discretion, are required by law.
(9) Benefit Amounts Not Plan Compensation. Any amounts payable under this
Letter Agreement shall not be deemed salary or other compensation for
purposes of computing benefits to which you may be entitled under any
Xxxx-sponsored pension or other employee benefits, retirement or
compensation arrangement.
(10) Non-Competition; Confidentiality; Non-Solicitation and
Non-Disparagement. You agree that you will not, at any time prior to
March 31, 2005, without the prior 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
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business which is owned by or affiliated with any of them; provided,
however, that nothing contained herein shall preclude you from the
purchase or ownership of stock in any such business, if such stock is
publicly traded and your 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 (10) should these
business entities acquire a company where you are then serving as a
principal, agent, stockholder, employee, consultant or in any other
capacity. Both of us 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. You also agree not to solicit
for employment any employee of Xxxx Corporation during the term of this
agreement not to compete.
You agree at all times to hold all Confidential information that you
acquired during your 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 and which is not available in the public domain.
You further agree not at any time to disparage Xxxx or its affiliates
or their respective officers and directors or otherwise make any
statements or take any actions which would damage the goodwill or
reputation of Xxxx or its affiliates, including without limitation,
making statements to suppliers or customers of any of them which would
damage Dana's or its affiliates' goodwill or reputation and may
adversely affect their relationships with those entities.
Xxxx agrees that its officers and directors will not at any time
disparage you or otherwise make any statements or take any actions that
would damage your goodwill or reputation.
You and Xxxx expressly agree that upon a breach or violation of the
foregoing restrictions in this Paragraph (10), you and Xxxx, in
addition to all other remedies, shall be entitled as a matter of right
to injunctive relief in any court of competent jurisdiction and to the
recovery from the other party of court costs and reasonable attorneys'
fees incurred in connection with such party's rights under this
Paragraph (10) provided that such party prevails in such proceedings.
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You acknowledge that you have agreed to the obligations set forth in
this Paragraph (10) in return for the consideration set forth in this
Agreement.
(11) Indemnification. In the event you are a party or are threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding by reason of the fact you were an officer or employee of
Xxxx or served at the request of Xxxx as a director, officer, employee
or agent of another entity, Xxxx will indemnify you and reimburse your
expenses in connection with any such action, suit or proceeding to the
same extent and subject to the same limitations as Xxxx would indemnify
or reimburse the expenses of a then current officer of Xxxx in similar
circumstances.
(12) Transition Services. You agree to provide transition services to Xxxx,
on an as-needed basis, during the period of April 1, 2004 through
December 3, 2004 ("Transition Services Term"). As such, you agree to
perform such services for Xxxx as may be reasonably requested by Xxxx,
from time to time in connection with the management transition. With
respect to your services, both parties agree that you will not
ordinarily render services to Xxxx for more than eight (8) hours in any
month, during this Transition Services Term. You will not be required
to provide these services at any particular location, and you may
provide these services at home or by telephone or mail, or by any other
means suitable to the services requested and mutually agreeable to Xxxx
and you.
During the Transition Services Term, you will be reimbursed for
reasonable expenses for travel deemed necessary by Xxxx for the
performance of your services to Xxxx.
Xxxx shall pay you $300 for each hour of consulting services that you
perform for Xxxx during the Transition Services Term.
During the Transition Services Term, you will not be entitled to
participate in any company-provided group life insurance,
hospitalization, pension, incentive, salary continuation and other
employee benefit plans that are available to employees of Xxxx or its
affiliates, provided, however, that this provision shall in no way
alter or affect your retirement or other benefits arising solely from
your employment with Xxxx prior to your retirement.
It is agreed that during the Transition Services Term you will not be
an agent or employee of Xxxx (or its affiliates), and that you will be
engaged only in an independent contractor and consultant capacity.
During this period, you will be providing only such advisory services
as may be requested, and you will not be
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subject to Dana's supervision or control. Xxxx will not control the
details and means by which you perform such services under this
Agreement.
(13) Complete Release. In exchange for the obligations that Xxxx has assumed
in this Agreement, you agree, on behalf of yourself, and on behalf of
your heirs, successors, and assigns, to release Xxxx and all of its
past, present and future owners, subsidiaries, affiliates, directors,
officers, employees and representatives, and all of the respective
heirs, successors, and assigns of the foregoing, and all of their
employee benefit plans and plan administrators, from all claims,
damages, demands and liabilities, whether heretofore asserted or not,
that you might otherwise have, based on your employment with, or your
retirement from Xxxx. This includes, but is not limited to, a release
of rights or claims you may have under: (a) the AGE DISCRIMINATION IN
EMPLOYMENT ACT OF 1967, as amended; (b) any and all other federal,
state and local laws, including but not limited to, laws prohibiting
discrimination in employment on the basis of sex, race, national
origin, age, disability or other invidious factor; (c) any and all
theories of contract and tort law, whether based on common law or
otherwise and including but not limited to theories of fraud and
estoppel; and (d) any contracts or agreements whether written or oral
or express or implied. This release covers both claims that you know
about and those you may not know about. This release does not include,
however, a release of your rights, if any, to pension, retiree health
or similar benefits under Dana's retirement, benefit or compensation
plan in which you were participating at the date of your retirement. We
understand that you specifically do not waive or release any rights
that may arise after the date you sign this Agreement.
Notwithstanding anything to the contrary in this Agreement, Executive
is not releasing:
1. Any continuing obligations or liabilities of Xxxx
created by or referenced in this Agreement, including
the payments to be made under Paragraph (2) and any
benefits to which Executive is entitled to as a
retiree as referenced in Paragraph (3).
2. The right to be indemnified as an officer or employee
of Xxxx pursuant to the Virginia Stock Corporation
Act, or the Bylaws or Articles of incorporation of
Xxxx now or hereafter in existence.
3. The right to enforce this Agreement.
You further agree not to xxx Xxxx or any of its past, present and
future owners, subsidiaries, affiliates, directors, officers, employees
and representatives, or any of
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the respective heirs, successors and assigns of the foregoing, and any
of their employee benefit plans and plan administrators, based, in
whole or in part, on any claims related to your employment with Xxxx or
the termination of that employment and your retirement.
You acknowledge that you have been given a period of 21 days from the
date of this Agreement to review and consider this Agreement, including
this Paragraph (13) before signing it. You understand that you may use
as much of this 21-day period as you wish prior to signing this
Agreement. In addition, you are encouraged to consult with an attorney
of your choice before signing this Agreement. You understand that
whether you sign this Agreement is your decision.
You may revoke your acceptance of this Agreement including the release
language contained in this Paragraph by delivering a written notice of
revocation to the Vice President of Human Resources for Xxxx, at the
letterhead address within 7 days of signing this Agreement. If you
revoke your acceptance of this Agreement, it shall not be effective or
enforceable, and you will not receive the benefits described in this
Agreement.
(14) Entire Agreement; Severability; Voluntariness. Upon execution, this
Agreement supersedes all earlier agreements between Xxxx (or its
affiliates) and you with respect to the matters covered herein and all
of the understandings between you and Xxxx (or its affiliates)
regarding your employment and your retirement shall be those set forth
in this Agreement. You acknowledge and agreed that Xxxx has made no
promises to you in consideration for your entering into this Agreement
other than those expressly set forth in this Agreement.
The provisions of this Agreement shall be severable, and the invalidity
of any provision shall not affect the validity of the other provisions.
You acknowledge and agree that your decision to execute this Agreement:
(a) was entirely voluntary on your part; (b) was not made in reliance
on any inducement, promise, or representation, whether express or
implied, other than the inducements, representations, and promises
expressly set forth herein; and (c) did not result from any threats or
other coercive activities to induce acceptance of this Agreement.
(15) Restricted Stock; Stock Options; Additional Compensation; Perquisites.
The 20,000 shares of restricted stock award granted to you on October
21, 2003 will be vested by action of the Compensation Committee as soon
as practicable at such time as we mutually agree based on legal and tax
considerations. Further, the
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18,000 shares of the total restricted stock grant that was made on
February 12, 2001 will vest as of your retirement date in accordance
with your Restricted Stock Agreement for such grant. Distribution of
these shares to the Executive (which shall mean both the 20,000 share
grant and the 18,000 shares of the February 12, 2001 grant) will occur
as soon as practicable but in no event later than October 31, 2004.
Prior grants of Restricted Stock on July 20, 1997 will be distributed
in accordance with the Executive's prior election.
You will also have the rights of a retiree as to stock options that
have previously been granted to you. All such options will be
exercisable no later than the first to occur of the expiration date of
each specific option grant and the date that is 60 months after your
date of retirement.
Any additional compensation that had been earned and deferred by
Executive under the Xxxx Corporation Additional Compensation Plan shall
be distributed to him in a lump sum cash payment in 2004.
Xxxx will pay the cost of any tax, estate and financial planning
services that you incur rendered by individuals or entities referenced
on Attachment B hereto through December 31, 2004, except that tax
services rendered pursuant to this provision shall mean services
related to the tax year ending December 31, 2004. Your entitlement to
reimbursements for the above-described perquisites will be governed by
the terms of those perquisites as applied to similarly situated
retirees. Statements for these services may either be forwarded by
Executive to Xxxx or direct billed to Xxxx.
You will be permitted to retain the use of your current company vehicle
and gas card through June 30, 2004 and shall have the option at that
time to purchase your company car for its fair market value, as
determined under existing Xxxx procedures.
(16) Additional Payment. In addition to the payments described in paragraph
(2) above, you will also be entitled to a payment of $10,000 payable
within 30 days after the execution of this Agreement. The additional
payment described in this Paragraph (16) will be made to you to
encourage and facilitate legal review by counsel of your choosing. We
encourage you to seek the review of legal counsel prior to the
execution of this Agreement. You acknowledge that you have had ample
opportunity to fully discuss the terms of this Agreement with counsel.
(17) No Admission. It is expressly understood and agreed by entering this
Agreement, neither of the parties hereto are admitting any wrongdoing
or liability.
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(18) Amendment. This Agreement cannot be amended or modified in any respect,
except by a subsequent written agreement entered into by both parties
hereto.
(19) Applicable Law. This Agreement shall be construed in accordance with
applicable federal law and, to the extent not preempted thereby, the
laws of the State of Ohio.
Please indicate your acceptance of the terms of this Agreement by
signing in the signature space provided below and returning the signed letter to
Xxxx.
Very truly yours,
XXXX CORPORATION
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President - Human Resources
Accepted & Agreed:
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx
Executive
Date: April 29, 2004
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