exv10w1






Exhibit 10.1




EXECUTION COPY          




EXECUTIVE EMPLOYMENT AGREEMENT




          This Executive Employment Agreement (“Agreement”) is entered into this May ___, 2009 by
and between Dana Holding Corporation, a Delaware corporation, with its principal executive office
at 4500 Dorr Street, Toledo, Ohio (the “Company”), and James E. Sweetnam, an individual,
residing in Ohio (“Executive”), effective July 1, 2009 (the “Effective Date”).




RECITALS





	 	A.	 	The Company desires to employ Executive as President and Chief Executive
Officer of the Company.
	 
	 	B.	 	The Company and Executive desire to enter into this Agreement as to the terms
of Executive’s employment by the Company to be effective as of July 1, 2009.





          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:





	1.	 	Employment The Company and Executive hereby agree that as of the Effective Date
Executive shall be employed by the Company on the terms set forth in this Agreement.
	 
	2.	 	Term. The employment of Executive by the Company under the terms of this Agreement
shall commence on the Effective Date and shall continue in effect for an initial three (3)
year period. Upon the second anniversary of the Effective Date, and on each successive
anniversary, the period shall be automatically extended by one (1) year (so that on every
anniversary of the Effective Date thereafter the remaining term shall be for two (2) years),
unless either party gives notice to the other party at least ninety (90) days prior to the
second anniversary of the Effective Date or such next anniversary, as applicable, that the
employment period shall expire at the end of the initial three (3) year period or such two
(2)-year period, as applicable, without extension (the initial and each successive employment
period being the “Term”), unless earlier terminated as set forth in Section 6 of this
Agreement. Executive’s employment after expiration of the Term shall be at-will and not
governed by this Agreement (other than by provisions that by their terms survive such
expiration).
	 
	3.	 	Position and Duties. Executive shall serve as President and Chief Executive Officer
of the Company, reporting to the Chairman of the Board of Directors of the Company
(“Board”), and shall have such responsibilities and authority commensurate with such
position as may from time to time be assigned to Executive by the Board. Executive shall
devote substantially all his working time and efforts to the business and affairs of the
Company. However, Executive may devote reasonable time to supervision of his personal
investments and professional, charitable, educational, religious and other similar activities,
and speaking engagements, provided such activities are not competitive with the Company and do
not interfere with Executive’s discharge of his duties to the Company. Executive may serve on
the board of directors of any company or organization with the Board’s prior written consent.
The Board consents to Executive continuing to serve on the board of directors of The Lubrizol
Corporation.
	 
	4.	 	Directorship Agreement. As soon as reasonably possible after the Effective Date,
Executive shall be appointed as a member of the Board. While serving as a Director, the Board
shall re-nominate Executive from term to term while acting as President and Chief Executive
Officer. Upon Executive’s ceasing to be President and Chief Executive Officer, Executive
shall immediately resign as a Director.




 









 






	5.	 	Compensation and Related Matters. During the Term, Executive shall be entitled to
the following amounts and benefits:






	 	5.1	 	Salary. The Company shall pay to Executive a salary of $1,000,000 per
year (the “Base Salary”), which rate may be increased (but not decreased,
except for across-the-board decreases applicable with like proportionate effect to
other senior executives of the Company) from time to time in accordance with normal
business practices of the Company, in the discretion of the Board. The Base Salary
shall be payable by the Company in accordance with the normal payroll practices of the
Company then in effect. Any increase or decrease in the Base Salary amount shall
thereafter be Executive’s “Base Salary” for all purposes hereunder.
	 
	 	5.2	 	Bonus. Executive shall be eligible for an annual bonus with a target
amount equal to 100% of Executive’s Base Salary pursuant to the annual incentive
program under the Company’s 2008 Omnibus Incentive Plan (“Plan”). Executive’s
eligibility for the bonus and the amount thereof shall be based on the achievement of
performance measures set by the Board of Directors. The Executive’s target bonus
percentage will be reviewed by the Board at least annually for its competitiveness and
in light of any new responsibilities assumed by the Executive.
	 
	 	5.3	 	Annual Long Term Incentive Program. Executive shall be eligible for
annual awards pursuant to the long term incentive program under the Plan, commencing
with awards granted to senior executives in fiscal 2010, as determined in the sole
discretion of the Compensation Committee of the Board or the Board. The Company’s
intent is to provide a long term incentive program that is market competitive for
comparable industry positions.
	 
	 	5.4	 	Stock Option. As an inducement to Executive to enter into this
Agreement, on the Effective Date, Executive shall be awarded a nonqualified stock
option pursuant to the Plan to purchase up to 1,500,000 shares of the Company’s Common
Stock at an exercise price equal to the Market Value Per Share (as defined under the
Plan) on the date of award (the “Option”). The Option shall have a 10-year
term, shall vest and become exercisable as to 500,000 shares on each of the first,
second and third anniversaries of the Effective Date provided that Executive remains
continuously employed by the Company until each such date for such respective
installment to so vest, and shall be documented in accordance with the Company’s
standard form of Nonqualified Stock Option Agreement to be entered into between the
Company and Executive that otherwise is consistent with the terms hereof; provided, the
Option shall become fully vested and exercisable upon the first to occur of (i) the
involuntary termination of Executive’s employment by the Company without Cause (and not
due to Disability) or Executive’s voluntary termination for Good Reason and shall
remain exercisable for six months following the date of such termination (or any such
earlier expiration of the Option term) (with such capitalized terms having the meaning
defined below) or (ii) a Change in Control of the Company (as defined under the Plan).
	 
	 	5.5	 	Restricted Stock Units. As a further inducement, on the Effective Date
Executive shall be awarded 200,000 restricted stock units under the Plan (the
“Restricted Stock Units”), vesting on February 28, 2011, provided that
Executive remains continuously employed by the Company until such date for the
Restricted Stock Units to so vest. The Restricted Stock Units shall be paid to
Executive in shares of Company common stock within two and one-half (2-1/2) months
after the date of vesting. Executive shall be entitled to




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	 	 	 	payment of dividend
equivalents on the Restricted Stock Units, subject to vesting above, as and when
dividends are paid to stockholders on the Company’s common stock, which dividend
equivalents shall be converted into further restricted stock units (based on the Market
Value Per Share on the date that dividends are paid to the Company’s stockholders) and
paid, to the extent becoming vested, together with the payment of the Restricted Stock
Units above. The Restricted Stock Units shall be documented in accordance with the
Company’s standard form of Restricted Stock Unit Award Agreement to be entered into
between the Company and Executive that otherwise is consistent with the terms hereof.
The Restricted Stock Units shall vest and become immediately payable upon the first to
occur of (i) an involuntary termination of Executive’s employment by the Company
without Cause (and not due to Disability) or Executive’s voluntary termination for Good
Reason or (ii) a Change in Control of the Company. In the event that Executive
voluntarily terminates his employment (other than for Good Reason) or the Company
involuntary terminates his employment for Cause after the payment of the Restricted
Stock Units and prior to the second anniversary of the Effective Date, he shall within
ten (10) days thereafter repay the Company an amount equal to the product of (A) the
product of the number of shares constituting all of the Restricted Stock Units
previously paid to Executive (including any dividend equivalents thereon) multiplied by
the Market Value Per Share on the date of such termination multiplied by (B) the ratio
of the number of days from the date of termination until such second anniversary to 730
days (the “RSU Repayment Amount”). In the event of a Change in Control of the
Company, Executive shall have no obligation to repay the RSU Repayment Amount upon a
voluntary termination of his employment for any reason thereafter.
	 
	 	5.6	 	Cash Award. As a further inducement, on the Effective Date Executive
shall receive a cash award in the amount of $550,000 (“Cash Award”). In the
event that Executive voluntarily terminates his employment (other than for Good Reason)
or the Company involuntary terminates his employment for Cause prior to the first
anniversary of the Effective Date, he shall within ten (10) days thereafter repay the
Cash Award in full to the Company. In the event that Executive voluntarily terminates
his employment (other than for Good Reason) or the Company involuntary terminates his
employment for Cause after the first anniversary and prior to the second anniversary of
the Effective Date, he shall within ten (10) days thereafter repay a proportionate
amount of the Cash Award to the Company based on the ratio of the number of days from
the date of termination until such second anniversary to 730 days. In the event of a
Change in Control of the Company, Executive shall have no obligation to repay the Cash
Award upon a voluntary termination of his employment for any reason thereafter.
	 
	 	5.7	 	Stock Purchase Award. As a further inducement, on the Effective Date,
Executive shall receive a cash award in the amount of $500,000, provided that Executive
expends the after-tax proceeds of which (based on maximum marginal tax rates) to
purchase 500,000 shares, or such lesser number of shares as can be purchased with the
full amount of such after-tax proceeds, of Company common stock on the Effective Date
(based on the Market Value Per Share on the Effective Date) (the “Stock Purchase
Award”). Executive shall hold the Stock Purchase Award in accordance with the
Company’s stock ownership policy for its officers. In the event that Executive
voluntarily terminates his employment (other than for Good Reason) or the Company
involuntary terminates his employment for Cause prior to the first anniversary of the
Effective Date, he shall within ten (10) days thereafter repay the Company an amount
equal to the product of the number of shares constituting the Stock Purchase Award
multiplied by the Market Value Per Share on the




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	 	 	 	date of such termination (the
“Stock Purchase Repayment Amount”). In the event that Executive voluntarily
terminates his employment (other than for Good Reason) or the Company involuntary
terminates his employment for Cause after the first anniversary and prior to the second
anniversary of the Effective Date, he shall within ten (10) days thereafter repay a
proportionate amount of the Stock Purchase Repayment Amount to the Company based on the
ratio of the number of days from the date of termination until such second anniversary
to 730 days. In the event of a Change in Control of the Company, Executive shall have
no obligation to repay the Stock Purchase Repayment Amount upon a voluntary termination
of his employment for any reason thereafter.
	 
	 	5.8	 	Inducement Award. As a further inducement, on the Effective Date,
Executive shall be entitled to receive a cash award in the amount of $2,000,000
(“Special Cash Award”), payable in two equal installments the first of which
shall be paid on the Effective Date and the second of which shall be paid not later
than July 1, 2010, provided that Executive remains continuously employed until such
date to be entitled to receive such second installment. In the event of a termination
of Executive’s employment by the Company without Cause or Executive’s voluntary
termination of his employment for Good Reason, the second installment of the Special
Cash Award, if then unpaid, shall be paid to Executive within thirty (30) days
following Executive’s such termination (subject to Executive’s entering into a release
of claims provided under Section 6.4). In the event that Executive voluntarily
terminates his employment (other than for Good Reason) or the Company involuntary
terminates his employment for Cause prior to the first anniversary of the Effective
Date, Executive shall within ten (10) days thereafter repay the amount of the Special
Cash Award, previously paid to him, in full to the Company. In the event that Executive
voluntarily terminates his employment (other than for Good Reason) or the Company
involuntary terminates his employment for Cause after the first anniversary and prior
to the second anniversary of the Effective Date, Executive shall within ten (10) days
thereafter repay a proportionate amount of the Special Cash Award to the Company based
on the ratio of the number of days from the date of termination until such second
anniversary to 730 days. In the event of a Change in Control of the Company, the
second installment of the Special Cash Award, if then unpaid, shall be paid immediately
to Executive and he shall have no obligation to repay any portion of the Special Cash
Award upon his voluntary termination for any reason thereafter. Except as provided
above, the unpaid portion of the Special Cash Award shall be forfeited upon a
termination of Executive’s employment.
	 
	 	5.9	 	Relocation Expenses. Executive shall relocate his principal residence
from the metropolitan Cleveland area. Executive shall be entitled to reimbursement of
his reasonable relocation expenses incurred for a relocation of his principal residence
and temporary living expenses in accordance with the Company’s relocation program
applicable to its senior executives.
	 
	 	5.10	 	Vacation. In addition to legal holidays observed by the Company,
Executive shall be entitled to twenty (20) days of paid vacation per year, which
vacation days shall accrue and be useable by Executive in accordance with the Company’s
standard vacation policies. Upon termination of employment, the Company shall promptly
pay Executive any accrued and unused vacation days.




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	 	5.11	 	Supplemental Benefit.






	 	5.11.1	 	To compensate Executive for a lost opportunity to receive future cash
benefits from his previous employer, Executive shall be entitled to a cash
make-whole benefit in the amount of $2,200,000, vesting and becoming payable in
equal annual installments on each of the first six (6) anniversaries of the
Effective Date, provided that Executive is continuously employed by the Company
on each such anniversary for such respective installments to so vest
(“Supplemental Benefit”). Upon each vesting date, the vested
installment shall be paid to Executive within thirty (30) days thereafter. In
the event of the involuntary termination of Executive’s employment by the
Company without Cause or voluntary termination by Executive for Good Reason,
Executive shall thereafter become vested and entitled to payment of such
installments of the Supplemental Benefit, as and when the installments
otherwise are due hereunder, as would have been become vested and payable to
Executive during the period ending on the second anniversary of such
termination had Executive’s employment not so terminated (subject to
Executive’s entering into a release of claims provided under Section 6.4 upon
such termination); provided, Executive shall immediately forfeit any such
unpaid installments upon a breach of any covenant under Section 9
(non-competition) or Section 10 (non-solicitation) hereof. In the event of
Executive’s death or termination of employment due to his Disability, Executive
shall vest in a pro rata portion of the installment otherwise payable on the
next succeeding anniversary date following such death or termination (such
proration shall be based on the ratio of the number of days employed since the
immediately preceding anniversary date to 365) which amount shall be paid to
Executive within thirty (30) days following Executive’s death or termination.
Except as otherwise provided under this Section 5.11, Executive shall forfeit
the unpaid amount of his Supplemental Benefit upon a termination of his
employment.
	 
	 	5.11.2	 	The Company shall use its commercially reasonable best efforts to assist
Executive in the issuance on or about the Effective Date of a letter of credit
in Executive’s favor, in the amount of $1,100,000, from a financial institution
reasonably acceptable to Executive, and expiring sixty (60) days after the
third anniversary of the Effective Date, for the purpose of paying amounts that
may become payable to Executive under this Section 5.11. As a condition of
payment to Executive, as and when each of the first three installments vests
hereunder, Executive shall direct the issuer of the letter of credit to
disburse the gross payment less applicable federal and state income and
employment withholding tax obligations on the gross amount.






	 	5.12	 	Expenses. During the term of Executive’s employment hereunder,
Executive shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by Executive in performing services hereunder, including all expenses of
travel and living expenses while away from home on business or at the request or and in
the service of the Company, provided that such expenses are incurred and accounted for
in accordance with the policies and procedures as reasonably established by the
Company.
	 
	 	5.13	 	Other Benefits. Executive shall be entitled to participate in all of
the Company’s benefit plans or arrangements, subject to the terms and conditions
thereof, as in effect from time to time with respect generally to senior executives;
provided, Executive’s allowance for perquisites under the applicable perquisite program
of the Company shall be in the




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	 	 	 	amount of $100,000 for each fiscal year (which will not
be prorated for fiscal 2009). The Executive shall have access to chartered corporate
aircraft for business travel to the extent provided under the Company’s travel policy.
The Company shall pay the professional fees and costs incurred by Executive in
connection with the negotiation and documentation of his employment arrangements in an
amount not to exceed $25,000.











	6.	 	Termination.






	 	6.1	 	Termination for Any Reason. Anything herein to the contrary
notwithstanding, the Company may terminate Executive’s employment at any time for any
reason with or without notice. Executive may voluntarily terminate his employment at
any time for any reason after giving the Company not less than thirty (30) days prior
notice of such termination. The Term shall terminate upon any such termination of
employment.
	 
	 	6.2	 	Termination Upon Death or Disability. Executive’s employment hereunder
shall terminate upon his death. In the event that Executive’s employment terminates due
to his death or Disability, he shall be entitled to (i) his accrued and unpaid Base
Salary and accrued and unused vacation, payable not later than the first complete
payroll payment date following such termination, (ii) his unreimbursed business
expenses incurred prior to such termination, payable in accordance with the policies
and procedures applicable under Section 5.13, (iii) his accrued and vested benefits
under all employee benefit plans in which Executive is a participant, payable in
accordance with the terms of such plans (collectively, Executive’s “Accrued
Obligations”), and (iv) a bonus based on actual performance under the annual
incentive program and pro rated based on the ratio of the number of days employed
during the fiscal year to 365, and paid when annual bonuses are paid to other senior
executives. Executive shall also be entitled to any unpaid annual and long term cash
bonus earned for a completed previous performance period, payable when such bonuses are
paid to other senior executives (“Prior Bonus”). Upon payment of such amounts
and benefits, the Company shall have no further obligation to Executive. For all
purposes under this Agreement, “Disability” shall have the meaning set forth in
the Company’s Executive Severance Plan (or successor to such plan).
	 
	 	6.3	 	Termination by the Company For Cause. In the event that the Company
terminates Executive’s employment for Cause, Executive shall be entitled to his Accrued
Obligations. Upon payment of such amounts and benefits, the Company shall have no
further obligation to Executive.
	 
	 	6.4	 	Termination by the Company Without Cause; by Executive for Good Reason.






	 	6.4.1	 	In the event that the Company involuntarily terminates
Executive’s employment without Cause (and not due to Disability) or Executive
voluntarily terminates his employment for Good Reason, Executive shall be
entitled to (i) his Accrued Obligations and any Prior Bonus, (ii) severance in
an amount equal to twenty-four (24) months of Executive’s Base Salary, payable
in regular payroll installments over the twenty-four (24) month period
commencing on the date of Executive’s termination, (iii) a bonus based on
actual performance under the annual incentive program and pro rated based on
the ratio of the number of days employed during the fiscal year to 365, and
paid when annual bonuses are paid to other senior executives, (iv) medical,
dental, prescription drug, basic life insurance and employee assistance program
benefits for twenty-four (24) months following the date of Executive’s
termination subject to Executive’s payment of




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	 	 	 	any required employee
contributions consistent with those contributions required of active employees
of the Company (and which benefits shall be coterminous with Executive’s
entitlement to COBRA health benefits continuation), and (v) outplacement
benefits (having a cost not exceeding $50,000); provided, such payments and
benefits provided under clauses (ii), (iii), (iv) and (v) shall be subject to
Executive entering into a complete release of all claims in the form then
applicable for such a termination under the Company’s Executive Severance Plan
(or any successor to such plan); further provided, the severance amount payable
under clause (ii) and the benefit continuation period provided under clause
(iv) shall be reduced to such amount and period as applies by excluding from
any such severance payments and benefit continuation period under clauses (ii)
and (iv) as would apply after the date Executive attains age 65. Upon payment
of such amounts and benefits, the Company shall have no further obligation to
Executive. All amounts payable under this Section 6.4 shall be in lieu of and
not in addition to any amount that otherwise might be payable under the
Company’s Executive Severance Plan (or successor to such plan) upon such a
termination.
	 
	 	6.4.2	 	For all purposes under this Agreement, “Cause” shall
mean and include (i) a willful and material misappropriation of any monies or
assets or properties of the Company; (ii) a willful and material breach by
Executive of the terms of this Agreement that is demonstrably injurious to the
Company and that has not been cured within thirty (30) days after written
notice to Executive of the breach, which notice shall specify the breach and
the nature of conduct necessary to cure such breach; or (iii) the conviction
of, or plea of guilty or nolo contendre, by Executive to a felony or to any
criminal offense involving Executive’s moral turpitude.
	 
	 	6.4.3	 	For all purposes under this Agreement, “Good Reason”
shall mean the occurrence of any of the following without the Executive’s
consent: (i) any material adverse change by the Company in Executive’s title,
position, authority or reporting relationships with the Company; (ii) the
Company’s requirement that Executive relocate to a location in excess of fifty
(50) miles from the Company’s current office location or from any future office
location acceptable to Executive; or (iii) any material breach by the Company
of this Agreement which is not cured within thirty (30) days after written
notice thereof by Executive to the Company, which notice shall specify the
breach and the nature of conduct necessary to cure such breach.






	 	6.5	 	Termination By Executive Other than for Good Reason. In the event that
Executive voluntarily terminates his employment other than due to Disability and other
than for Good Reason, he shall be entitled to his Accrued Obligations. Upon payment of
such amounts and benefits, the Company shall have no further obligation to Executive.
	 
	 	6.6	 	Termination Upon Expiration of the Term. In the event Executive’s
employment is terminated by the Company or Executive upon the expiration of the Term,
Executive shall be entitled to his Accrued Obligations and any Prior Bonus. Upon
payment of such amounts and benefits, the Company shall have no further obligation to
Executive.




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	7.	 	Confidential Information.






	 	7.1	 	During the period of Executive’s employment and at all times thereafter,
Executive shall protect and not disclose Proprietary Information, except as may be
required to discharge his duties hereunder or if Executive is required by law,
regulation, or court order to disclose any Proprietary Information. “Proprietary
Information” is all information, whether or not reduced to writing (or in a form
from which information can be obtained, translated, or derived into reasonably usable
form) or maintained in the mind or memory of Executive and whether compiled or created
by the Company, any of its subsidiaries or any affiliates of the Company or its
subsidiaries (collectively, the “Company Group”), which derives independent
economic value from not being readily known to or ascertainable by proper means by
others who can obtain economic value from the disclosure or use of such information, of
a proprietary, private, secret or confidential (including, without exception,
inventions, products, processes, methods, techniques, formulas, compositions,
compounds, projects, developments, sales strategies, plans, research data, clinical
data, financial data, personnel data, computer programs, customer and supplier lists,
trademarks, service marks, copyrights (whether registered or unregistered), artwork,
and contacts at or knowledge of customers or prospective customers) nature concerning
the Company Group’s business, business relationships or financial affairs; provided
however, that Proprietary Information shall not include any information that (i) has
become generally available to the public other than as a result of a disclosure by
Executive, or (ii) was available or became known to Executive prior to the disclosure
of such information on a non-confidential basis without breach of any duty of
confidentiality from any party to the Company and Executive.
	 
	 	7.2	 	Executive further agrees that his obligation not to disclose or to use
information and materials of the types, and his obligation to return materials and
tangible property, set forth in this Section 7 also extends to such types of
information, materials and tangible property of customers of the Company Group,
consultants for the Company, suppliers to the Company, or other third parties who may
have disclosed or entrusted the same to the Company or to Executive.
	 
	 	7.3	 	Executive’s obligations under this Section 7 are in addition to, and not in
limitation of, all other obligations of confidentiality under the Company’s policies,
general legal or equitable principles or statutes.






	8.	 	Statements to Third Parties.






	 	8.1	 	During the period of Executive’s employment and at all times thereafter, other
than in connection with the performance of his duties hereunder, Executive shall not,
directly or indirectly, make or cause to be made any statements, including but not
limited to, comments in books or printed media, to any third parties criticizing or
disparaging the Company Group or commenting on the character or business reputation of
the Company Group and resulting in a material adverse impact upon the Company. Without
the prior written consent of the Board, unless otherwise required by law, Executive
shall not (i) publicly comment in a manner materially adverse to the Company Group
concerning the status, plans or prospects of the business of the Company Group or (ii)
publicly comment in a manner materially adverse to the Company Group concerning the
status, plans or prospects of any existing, threatened or potential claims or
litigation involving the Company Group; provided, nothing herein shall preclude honest
and good faith reporting by Executive to appropriate Company or legal enforcement
authorities.




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	 	8.2	 	During the period of Executive’s employment and at all times thereafter, other
than in connection with the performance of the duties of Company senior executives
(other than Executive), no senior executive of the Company (other than Executive)
shall, directly or indirectly, make or cause to be made any statements, including but
not limited to, comments in books or printed media, to any third parties criticizing or
disparaging Executive or commenting on the character or business reputation of
Executive, and resulting in a material adverse impact upon Executive. Nothing herein
shall preclude honest and good faith reporting by the Company to appropriate legal
enforcement authorities.






	9.	 	Non-Competition. For a period commencing on the Effective Date and continuing for
twenty-four (24) months following Executive’s termination of employment for any reason (the
“Restricted Period”), Executive covenants and agrees that Executive shall not,
directly or indirectly, engage in any activities on behalf of or have an interest in any
Competitor of the Company Group, whether as an owner, investor, executive, manager, employee,
independent consultant, contractor, advisor, or otherwise, other than ownership of less than
one percent (1%) of any class of stock in a publicly traded corporation. A
“Competitor” is any entity doing business directly or indirectly (as an owner,
investor, provider of capital or otherwise) in the United States including any territory of
the United States (the “Territory”) that provides products or services that are the
same or similar to the products or services that are being provided by any member of the
Company Group at the time of Executive’s termination or that were provided by a member of the
Company Group during the two-year period prior to Executive’s termination of employment.
Executive acknowledges and agrees that due to the continually evolving nature of the Company
Group’s industry, the scope of its business or the identities of Competitors may change over
time. Executive further acknowledges and agrees that the Company Group markets its products
and services on a nationwide basis, encompassing the Territory and that the restrictions
imposed by this covenant, including the geographic scope, are reasonably necessary to protect
the Company Group’s legitimate interests.
	 
	10.	 	Non-Solicitation. Executive hereby covenants and agrees that he shall not during the
Restricted Period, directly or indirectly, individually or on behalf of any other person or
entity:






	 	10.1	 	Hire or employ or assist in hiring or employing any person who was at any time
during the last 6 months of Executive’s employment an employee, representative or agent
of any member of the Company Group or solicit, aid, induce or attempt to solicit, aid,
induce or persuade, directly or indirectly, any person who is an employee,
representative, or agent of any member of the Company Group to leave his or her
employment with any member of the Company Group to accept employment with any other
person or entity provided, however, the foregoing shall not prohibit advertisements for
employment placed in newspapers or other media of general circulation to the general
public; or
	 
	 	10.2	 	Solicit any customer of the Company Group, or any person or entity whose
business the Company Group had solicited during the 180-day period prior to termination
of Executive’s employment for purposes of business which is competitive to the Company
Group within the Territory.






	11.	 	Developments. Executive acknowledges and agrees that he shall make full and prompt
disclosure to the Company of all inventions, improvements, discoveries, methods, developments,
software, mask works, and works of authorship, whether patentable or copyrightable or not,
(i) which relate to the Company’s business and have heretofore been created, made, conceived
or reduced to practice by Executive or under his direction or jointly with others, and not
assigned to




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	 	 	prior employers, or (ii) which have utility in or relate to the Company’s business
and are created, made, conceived or reduced to practice by Executive or under his direction or
jointly with others during his employment with the Company, whether or not during normal
working hours or on the premises of the Company (all of the foregoing of which are
collectively referred to in this Agreement as “Developments”). Executive further
agrees to enter into the Company’s standard form of invention and disclosure agreement that is
required of all new employees. Executive further agrees to cooperate fully with the Company,
both during and his employment with the Company, with respect to the procurement, maintenance
and enforcement of copyrights, patents and other intellectual property rights (both in the
United States and other countries) relating to Developments. Executive shall not be required
to incur or pay any costs or expenses in connection with the rendering of such cooperation.
	 
	12.	 	Remedies. Executive and the Company agree that the covenants contained in Sections
7, 8, 9, 10 and 11 (the “Covenants”) are reasonable under the circumstances, and
further agree that if in the opinion of any court of competent jurisdiction any such Covenant
is not reasonable in any respect, such court shall have the right, power and authority to
sever or modify any provision or provisions of such Covenants as to the court will appear not
reasonable and to enforce the remainder of the covenants as so amended. Executive acknowledges
and agrees that the remedy at law available to the Company for breach of any of Executive’s
obligations under the Covenants would be inadequate and that damages flowing from such a
breach may not readily be susceptible to being measured in monetary terms. Accordingly,
Executive acknowledges, consents and agrees that, in addition to any other rights or remedies
that the Company may have at law, in equity or under this Agreement, upon adequate proof of
Executive’s violation of any Covenant, the Company shall be entitled to immediate injunctive
relief and may obtain a temporary order restraining any threatened or further breach, without
the necessity of proof of actual damage or of posting any bond.
	 
	13.	 	Indemnification; Insurance.






	 	13.1	 	On the Effective Date, the Company and Executive shall enter into the Company’s
standard form of director and officer indemnification agreement.
	 
	 	13.2	 	Executive has advised the Company that he may incur a forfeiture of accrued and
vested pension benefits in the amount of $2,100,000, or a loss of special termination
benefits in the amount of $900,000, or both, in connection with his termination of
employment with his previous employer and commencement of employment with the Company.
To the extent that Executive substantiates such obligation to him and his previous
employer does not pay such amounts to Executive when due to him under the applicable
compensation plan of his previous employer, the Company shall pay such amount to
Executive at such time to make him whole for such forfeiture; provided, that Executive
shall repay to the Company all amounts he thereafter recovers from his previous
employer, Executive shall exercise all reasonable efforts to collect such amount from
his previous employer (provided that the Company reimburses Executive for the expenses
he incurs in connection with such collection efforts), and in all events the Company
shall be subrogated to all rights that Executive has in such amount payable by his
previous employer and the Company shall have a right to offset other compensation
payable to Executive by the amount he recovers from his previous employer in such
circumstances. In the event that Executive voluntarily terminates his employment
(other than for Good Reason) or the Company involuntary terminates his employment for
Cause prior to the first anniversary of the Effective Date, Executive shall within ten
(10) days thereafter repay in full any amount paid by the Company to Executive under
this Section 13.2. In




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	 	 	 	the event that Executive voluntarily terminates his employment
(other than for Good Reason) or the Company involuntary terminates his employment for
Cause after the first anniversary and prior to the second anniversary of the Effective
Date, Executive shall within ten (10) days thereafter repay a proportionate portion of
any amount paid to Executive under this Section 13.2 based on the ratio of the number
of days from the date of termination until such second anniversary to 730 days. In the
event that the Company involuntarily terminates Executive’s employment without Cause,
Executive voluntarily terminates his employment for Good Reason, Executive dies or his
employment terminates due to his Disability, Executive (or the legal representative of
his estate in the event of Executive’s death) shall remain entitled to all amounts
payable to Executive, subject to the obligations of Executive, under this Section 13.2
above. In the event of Executive’s termination of employment other than as provided in
this Section 13.2 above, he shall forfeit all unpaid amounts provided under this
Section 13.2.






	14.	 	Change in Control. Executive shall participate in the Company’s Executive Severance
Plan, other than provisions respecting a termination of employment prior to the occurrence of
a change in control thereunder.
	 
	15.	 	Representation; Legal Restrictions. Executive represents and warrants to the Company
that Executive is not a party to any contract, agreement or understanding, written or oral,
including, without limitation, any agreement containing any non-competition, non-solicitation,
confidentiality or other restrictions on your activities, which could prevent Executive from
entering into this Agreement or performing all of Executive’s duties and obligations
hereunder, other than as has been disclosed by Executive.
	 
	16.	 	Withholding. The Company may withhold from any and all amounts payable under this
Agreement such federal, state and local taxes as may be required to be withheld pursuant to
any applicable law or regulation.
	 
	17.	 	Notice. For the purposes of this Agreement, notices, demands and all other
communications provided for in the Agreement shall be in writing and shall be deemed to have
been duly given when delivered or (unless otherwise specified) mailed by registered mail,
return receipt requested, postage prepaid, addressed as set forth above, or to such other
address as any party may have furnished to the other in writing in accordance herewith, except
that notices of change of address shall be effective only upon receipt.
	 
	18.	 	Miscellaneous.






	 	18.1	 	The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of Delaware.
	 
	 	18.2	 	Sections 6 (respecting any termination of employment occurring prior to
expiration of the Term),7, 8, 9, 10, 11, 12, 13 and 15 (and such provisions of Section
18 as are relevant) of this Agreement shall remain in full force and effect and shall
survive the termination of Executive’s employment and the expiration or other
termination of this Agreement.
	 
	 	18.3	 	If Executive becomes entitled to (including Executive having satisfied his
obligation to enter into a release of claims) and/or is at any time receiving severance
payments under Section 6.4 and, following the commencement of any bankruptcy or
insolvency proceeding, the Company fails to pay any installment of such severance
payments within




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	 	 	 	fifteen (15) days after the date such installment is due and payable,
the provisions of Section 9 and 10.2 hereof shall cease to apply to Executive.
	 
	 	18.4	 	Any dispute, controversy or question arising under, out of, or relating to this
Agreement (or the breach thereof), or, Executive’s employment with the Company or
termination thereof, other than those disputes relating to Executive’s alleged
violations of Sections 7, 8.1, 9, 10 and 11, or the Company’s alleged violation of
Section 8.2, of this Agreement shall be referred for binding arbitration in Toledo,
Ohio. Such arbitration shall be conducted in accordance with the National Rules for
Resolution of Commercial Disputes of the American Arbitration Association
(“Rules”). The parties shall select a neutral arbitrator and this shall be the
sole means for resolving such dispute; provided, if the parties are unable to agree to
an arbitrator, an arbitrator will be selected in accordance with the Rules. Each party
shall be responsible for his or its attorneys fees and litigation expenses, however,
the Company shall pay the costs of the arbitration. Judgment upon the award rendered
by the arbitrator may be entered in any court having jurisdiction thereof. This Section
18.4 shall not apply to any action by the Company to enforce Sections 7, 8.1, 9, 10 or
11, or by Executive to enforce Section 8.2, of this Agreement and shall not in any way
restrict the Company’s remedies under Section 12 of this Agreement.
	 
	 	18.5	 	It is the intent of the parties that this Agreement be administered so as to
comply with Section 409A of the Internal Revenue Code of 1986 (“Section 409A”)
and all applicable regulations. The parties intend that any payment due hereunder shall
be delayed or adjusted as deemed reasonably necessary to avoid the imposition of
Section 409A penalties upon Executive. Without limiting the generality of the foregoing
and any provision in this Agreement to the contrary notwithstanding, if any portion of
the payments or benefits to be received by Executive under this Agreement would be
considered deferred compensation under Section 409A, then the following provisions
shall apply to the relevant portion:






	 	18.5.1	 	For purposes of this Agreement, no payment that would otherwise be made and
no benefit that would otherwise be provided upon a termination of employment
shall be made or provided unless and until such termination of employment is
also a “separation from service” (as determined in accordance with
Section 409A);
	 
	 	18.5.2	 	If Executive is a “specified employee” (within the meaning of Section 409A
and determined pursuant to procedures adopted by the Company) at the time of a
separation from service, each portion of such payments and benefits that would
otherwise be payable pursuant to this Agreement upon a separation from service
during the six (6) month period immediately following the separation from
service shall instead be paid or made available on the earlier of (i) the first
business day of the seventh month following the date Executive incurs a
separation from service, and (ii) Executive’s death (the applicable date, the
“Permissible Payment Date”);
	 
	 	18.5.3	 	With respect to any amount of expenses eligible for reimbursement under this
Agreement, such expenses shall be reimbursed by the Company within 60 calendar
days (or, if applicable, on the Permissible Payment Date) following the date on
which the Company receives the applicable invoice from Executive but




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	 	 	 	in no
event later than December 31 of the year following the year in which Executive
incurs the related expense;
	 
	 	18.5.4	 	Payments delayed under this Section 18.5 as a result of the application of
Section 409A shall not accrue interest. In no event shall the reimbursements or
in-kind benefits to be provided by the Company in one taxable year affect the
amount of reimbursements or in-kind benefits to be provided in any other
taxable year, nor shall Executive’s right to reimbursement or in-kind benefits
be subject to liquidation or exchange for another benefit; and
	 
	 	18.5.5	 	Each payment under this Agreement shall be considered a “separate payment.”






	 	18.6	 	The invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
	 
	 	18.7	 	Any waiver, alteration, amendment or modification of any of the terms of this
Agreement shall be valid only if made in writing and signed by each of the parties
hereto; provided, however, that any such waiver, alteration, amendment or modification
is consented to on the Company’s behalf by the Board or a Committee or member thereof
as may be duly authorized by the Board. No waiver by either of the parties hereto of
their rights hereunder shall be deemed to constitute a waiver with respect to any
subsequent occurrences or transactions hereunder unless such waiver specifically states
that it is to be construed as a continuing waiver.
	 
	 	18.8	 	This Agreement, and Executive’s rights and obligations hereunder, may not be
assigned or delegated by him. The Company may assign its rights, and delegate its
obligations, hereunder to any subsidiary or affiliate of the Company, or any successor
to the Company, specifically including the Covenants. The rights and obligations of
the Company under this Agreement shall inure to the benefit of and be binding upon its
respective successors and assigns. The rights and obligations of Executive under this
Agreement shall inure to the benefit of and be binding upon his heirs and legatees.
	 
	 	18.9	 	This Agreement constitutes the entire understanding and agreement of the
parties hereto regarding the employment of Executive. This Agreement supersedes all
prior negotiations, discussions, correspondence, communications, understandings and
agreements between the parties relating to the subject matter of this Agreement.
	 
	 	18.10	 	The headings of the sections and subsections of this Agreement are inserted
for convenience only and shall not be deemed to constitute a part thereof, affect the
meaning or interpretation of this Agreement or of any term or provision hereof. Words
of one gender shall be interpreted to mean words of another gender when necessary to
construe this Agreement, and in like manner words in singular may be interpreted to be
in the plural, and vice versa. Use of the word “or” shall mean “either or both” and use
of the word “including” shall be “without limitation.”
	 
	 	18.11	 	This Agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original but all of which together shall constitute one and
the same instrument. The execution of this Agreement may be by actual or facsimile
signature.




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          IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.




Dana Holding Corporation




	 	 	 	 	 	 	 	 	 
	By:

	 	/s/John M. Devine
 

John M. Devine
	 	 
	 	/s/ James E. Sweetnam
 

James E. Sweetnam
	 	 
	 

	 	Chief Executive Officer	 	 	 	 	 	 







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