EX-10.4






Exhibit 10.4




EXECUTIVE EMPLOYMENT AGREEMENT




     This Executive Employment Agreement (“Agreement”), dated for reference purposes only as of the
16th day of December, 2008, is entered into by and between Dana Holding Corporation, a
Delaware corporation, with its principal executive office at 4500 Dorr Street, Toledo, Ohio (the
“Company”), and Gary L. Convis, an individual, residing in California (“Executive”), effective as
of January 1, 2009 (the “Effective Date”).



RECITALS





	 	A.	 	The Company and Executive entered into an Employment Agreement dated April 16,
2008 (the “2008 Agreement”). Under the terms of the 2008 Agreement, Executive has been
employed as Chief Executive Officer and President of the Company. The initial term of
the 2008 Agreement expires on April 15, 2009.
	 
	 	B.	 	The Company wishes to appoint Executive as Vice Chairman of the Board of
Directors of the Company (the “Board”) effective as of January 1, 2009, and wishes to
extend Executive’s employment with the Company beyond the expiration of the initial
term of the 2008 Agreement. . In connection with this appointment, Executive has
informed the Board that he would resign as Chief Executive Officer and President of the
Company effective January 1, 2009.
	 
	 	C.	 	In connection with Executive’s new appointment and the extension of Executive’s
employment, the parties have agreed to amend certain terms of Executive’s employment
with the Company to be effective as of January 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; 2008 Agreement. The Company and Executive hereby agree that as of the
Effective Date Executive will be employed by the Company on the terms set forth in this
Agreement. The Company and Executive intend that the 2008 Agreement shall continue to govern
Executive’s employment until the Effective Date, and that any matters that arise during the
term of the 2008 Agreement before the Effective Date will be governed by the 2008 Agreement.
As of the Effective Date, Executive’s employment with the Company will be governed exclusively
by the terms of this Agreement and will not be governed by the 2008 Agreement.
	 
	2.	 	Term. The employment of Executive by the Company under the terms of this Agreement
will commence on the Effective Date and shall continue in effect for a one (1) year period
(the “Term”), unless earlier terminated as set forth in Section 6 of this Agreement. The Term
may be renewed for additional one-year periods (each to be considered a separate “Term”) upon
mutual agreement of the parties.
	 
	3.	 	Position and Duties. Executive shall serve as Vice Chairman of the Board of
Directors of the Company and shall have such responsibilities and authority commensurate with
such position as may from time to time be assigned to Executive by the Board of




 









 












	 	 	Directors of the Company. Executive shall devote substantially all his working time and
efforts to the business and affairs of the Company.






	4.	 	Directorship Agreement. Executive shall serve as a Director for the Company while
acting as Vice Chairman of the Board of Directors.
	 
	5.	 	Compensation and Related Matters.






	 	5.1	 	Salary. The Company shall pay to Executive a salary of U.S. $1,000,000
per year (the “Base Salary”), which rate may be increased from time to time in
accordance with normal business practices of the Company. The Base Salary shall be
payable by the Company in accordance with the normal payroll practices of the Company
then in effect.
	 
	 	5.2	 	Contract Extension Award. Executive shall receive a one-time cash
contract extension award of U.S. $750,000, which award has been paid to Executive. In
the event Executive is terminated by the Company for Cause or Executive voluntarily
terminates this Agreement without Good Reason before December 31, 2009, Executive shall
repay to the Company the pro-rata amount of this award based on the date of such
termination.
	 
	 	5.3	 	Incentive Compensation. Executive will be eligible to participate in
any annual bonus, stock equity participation and long term incentive programs generally
applicable to senior executives and as approved by the Board of Directors.
	 
	 	5.4	 	Bonus. Executive will be eligible for an annual bonus with a target of
100% of the Base Salary. Executive’s eligibility for the bonus and the amount thereof
will be based on the achievement of performance measures to be set by the Board of
Directors. If the Company terminates Executive’s employment without Cause or if
Executive terminates for Good Reason or if there is a Change in Control during a Term,
Executive will be entitled to payment of the entire annual bonus compensation
applicable for such Term (whether or not the applicable performance measures are
achieved). If the Company terminates Executive’s employment for Cause during a Term,
Executive will not be entitled to payment of any portion of the annual bonus
compensation for such Term. If Executive’s employment terminates for any other reason
during a Term, Executive will at a minimum be entitled to payment of the annual bonus
compensation for such Term pro rated to the effective date of the termination.
	 
	 	5.5	 	Stock Options. The Company has awarded Executive, as of October 31,
2008, a stock option (the “Option”) under the Company’s 2008 Omnibus Incentive Plan
(the “2008 Plan”) to purchase up to 300,000 shares of the Company’s Common Stock (the
“Option Shares”) at an exercise price of $1.90 per share, which is the closing stock
price of shares of the Company’s Common Stock as of the date of the award. The grant
of the Option Shares will be documented in a Nonqualified Stock Option Agreement to be
entered into between the Company and Executive. The Option Shares shall vest and
become exercisable by Executive ratably over a




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	 	 	 	three (3) year period if Executive remains continuously employed by the Company
until Executive is eligible for Normal Retirement; provided, however, that
if Executive dies or becomes disabled, or in the event of a Change in Control, any
unvested Option Shares shall immediately vest and become exercisable. For the
avoidance of doubt, the Option Shares will continue to vest and will not be
forfeited in the event of Executive’s termination of employment if Executive is
eligible for Normal Retirement at the time of the termination. Further, if
Executive is eligible for Normal Retirement at the time of termination, the Option
shall terminate five (5) years after Executive ceases to be an employee or ten (10)
years from the date of the award, whichever is earlier. For purposes of this
Agreement, “Change in Control” and “Normal Retirement” shall have the meaning
provided in the 2008 Plan. The terms of this Agreement will supercede and take
precedence over any terms of the Nonqualified Stock Option Agreement to the extent
the terms of the Nonqualified Stock Option Agreement are contradictory or
inconsistent with the terms of this Agreement.
	 
	 	5.6	 	Performance Shares. The Company grants to Executive 75,000 performance
 shares under the 2008 Plan (the “Performance Shares”), vesting ratably over a three (3)
year period if Executive remains continuously employed by the Company until Executive
is eligible for Normal Retirement; provided, however, that if Executive dies or
becomes disabled, or in the event of a Change in Control, any unvested Performance
Shares shall immediately vest. For the avoidance of doubt, the Performance Shares will
continue to vest and will not be forfeited in the event of Executive’s termination of
employment if Executive is eligible for Normal Retirement at the time of the
termination. The Performance Shares will be awarded based on the attainment of
Management Objectives (as defined in the 2008 Plan), which Management Objectives will
be determined by the Compensation Committee of the Board of Directors in accordance
with its standard practices. The Performance Shares will be earned and paid in shares
of the Company’s Common Stock upon certification by the Compensation Committee that the
applicable Management Objectives have been satisfied.
	 
	 	5.7	 	Restricted Stock Units. The Company grants to Executive 75,000
restricted stock units under the 2008 Plan (the “Restricted Stock Units”), vesting
ratably over a three (3) year period (the “Restriction Period”) if Executive remains
continuously employed by the Company until Executive is eligible for Normal Retirement;
provided, however, that if Executive dies or becomes disabled, or in the event
of a Change in Control, any unvested Restricted Stock Units shall immediately vest.
For the avoidance of doubt, the Restricted Stock Units will continue to vest and will
not be forfeited in the event of Executive’s termination of employment before the
expiration of the Restriction Period if Executive is eligible for Normal Retirement at
the time of the termination. Upon vesting, the Restricted Stock Units will be earned
and paid in shares of the Company’s Common Stock.
	 
	 	5.8	 	Additional Payments.




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	 	5.8.1	 	To the extent any compensation received under the Nonqualified Stock Option
Agreement, under any other awards under the 2008 Plan or under this Agreement would be
subject to the tax imposed by Section 4999 of the Code (the “Excise Tax”), the Company
will pay Executive an additional amount (the “Gross-Up Payment”) such that the net amount
retained by Executive shall be equal to the compensation Executive would have received
had there been no Excise Tax imposed.
	 
	 	5.8.2	 	Upon any payment to Executive in connection with a Change in Control or a
termination of this Agreement, the Company shall, at the Company’s expense, cause an
independent public accounting firm mutually agreeable to the Company and Executive to
determine whether the payment would be subject to any Excise Tax and if so, the amount of
the Gross-Up Payment. Such accounting firm shall provide detailed supporting
calculations to both the Company and Executive within fifteen (15) business days after
receiving notice that such payments have been made (or at such earlier time as requested
by the Company). If the accounting firm determines that no Excise Tax is payable by
Executive, the accounting firm shall provide Executive with a written opinion that the
failure to report an excise tax on Executive’s applicable federal income tax return would
not result in the imposition of any penalty. In the event the Excise Tax is subsequently
determined to be less than the amount taken into account in calculating the Gross-Up
Payment, Executive shall repay to the Company, at the time that the amount of such
reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment
attributable to such reduction. In the event that the Excise Tax is determined to exceed
the amount taken into account (including by reason of any payment the existence or amount
of which cannot be determined at the time of the Gross-Up Payment), the Company shall
make an additional gross-up payment to Executive in respect of such excess (plus any
penalty, interest or Excise Tax payable with respect to such excess) at the time that the
amount of such excess is finally determined, such that Executive retains the same amount
of compensation and benefits Executive would have received had there been no Excise Tax
imposed.
	 
	 	5.8.3	 	The Company shall pay the Gross-Up Payment not later than the fifth day following
the date of termination of this Agreement (or if there is no termination, the fifth day
following the date of the Change in Control); provided, however, that if the amount of
the Gross-Up Payment cannot be finally determined on or before such day, the Company
shall pay Executive on such day an estimate determined in good faith by the Company of
the minimum amount of such payment and shall pay the remainder of such payment as soon as
the amount thereof can be determined but in no event later than the thirtieth day after
the date of termination (or the date of the Change in Control, as the case may be).
	 
	 	5.9	 	Temporary Living Expenses; Travel Expenses. For a period of one (1)
year commencing on the Effective Date, the Company shall provide Executive with full
access to the Company’s guest housing and shall also reimburse Executive for
Executive’s reasonable temporary living expenses in or around Toledo, Ohio.




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	 	 	 	Further, Executive will be reimbursed for reasonable temporary commuting expenses
from his residence in California, including use of private aircraft up to 30
roundtrips in accordance with accepted procedures and disclosures. To the extent
any benefits received by Executive under this Section 5.9 is imputed as taxable
income to Executive, the Company will pay Executive an additional amount to
alleviate all tax burdens associated with these benefits, including the tax
associated with such additional amounts.
	 
	 	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 will promptly
pay Executive any unused vacation days.
	 
	 	5.11	 	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.
	 
	 	5.12	 	Other Benefits. The Company shall keep in full force and effect, and
Executive shall be entitled to participate in all of the Company’s benefit plans or
arrangements generally applicable to senior executives, including (without limitation)
life and disability insurance, bonus pools, stock options and stock ownership programs.
The Company shall not make any changes in such plans and arrangements which would
adversely affect Executive’s rights or benefits thereunder, unless such change occurs
pursuant to a program applicable to all executive officers of the Company and does not
result in a proportionately greater reduction in the rights of or benefits to Executive
as compared with any other executives of the Company.






	6.	 	Termination






	 	6.1	 	Termination Without Cause. Either party may terminate this Agreement
without Cause by giving to the other party thirty (30) days written notice.
	 
	 	6.2	 	Termination Upon Death or Disability. Executive’s employment hereunder
shall terminate upon his death. If, as a result of Executive’s incapacity due to
physical or mental illness, Executive shall have been absent from his duties hereunder
on a full-time basis for the entire period of six consecutive months, and within thirty
(30) days after written notice of termination is given (which may occur before or after
the end of such six-month period), Executive shall not have returned to the performance
of his duties hereunder on a full-time basis, the Company may terminate Executive’s
employment hereunder.




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	 	6.3	 	Termination by the Company For Cause. The Company may terminate this
Agreement for “Cause” at any time. For purposes of this Agreement “Cause” shall mean
and include: (i) a material misappropriation of any monies or assets or properties of
the Company; (ii) a material breach by Executive of the terms of this Agreement 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; (iii) the conviction of, or plea of guilty or nolo contendere, by
Executive to a felony or to any criminal offense involving Executive’s moral turpitude;
or (iv) willful misconduct of Executive in connection with the material duties required
by this Agreement.
	 
	 	6.4	 	Termination by Executive For Good Reason. Executive may terminate this
Agreement for “Good Reason” at any time. Good Reason shall include (a) any material
adverse change by the Company in Executive’s title, position, authority or reporting
relationships with the Company; (b) 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 (c) any material breach
by the Company of this Agreement which is not cured within thirty (30) days of 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	 	Severance Pay. If the Company terminates this Agreement without Cause
under Section 6.1 or if Executive terminates this Agreement for Good Reason under
Section 6.4 or if there is a Change in Control, Company shall pay Executive in a lump
sum within five (5) days of the termination, or such longer period as may be required
by applicable law, severance pay totaling: (i) an amount equal to Executive’s annual
Base Salary for the calendar year in which such termination occurs, plus (ii) the
annual bonus payment as provided in Section 5.3. Severance pay shall be due and
payable regardless of whether or not Executive becomes employed during the remainder of
the Term.
	 
	 	6.6	 	Return of Company Property Following Termination. Upon termination for
whatever reason, Executive shall return all books, documents, papers, materials and any
other property, including any Company vehicles (including the documentation pertaining
thereto) which relates to the business of the Company (or any subsidiary, affiliated,
or holding companies) which may be in Executive’s possession or under Executive’s power
or control.






	7.	 	Confidentiality. Executive covenants and agrees that he shall not, at any time
during or following the term of his employment hereunder, directly or indirectly divulge or
disclose, to any person not employed by the Company or not engaged to render services to the
Company, except as reasonably appropriate to discharge Executive’s responsibilities under this
Agreement, any confidential information of the Company which has been obtained by or disclosed
to him as a result of his employment by the Company, including without limitation, information
relating to the finances, strategy, organization, operations, inventions, processes, formulae,
plans, devices, compilations of




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	 	 	information, methods of distribution, customers, suppliers, client relationships, marketing
strategies or other trade secrets of the Company; provided, however, that this provision
shall not preclude Executive from use or disclosure of information known generally to the
public or of information not considered confidential by persons engaged in the business
conducted by the Company or from disclosure required by law or court order, if, in the case
of such required disclosure, Executive has given the Company reasonable prior notice in
order to permit the Company to take steps to protect the information from public disclosure.
In the event of a breach or threatened breach by Executive of any of the provisions of this
paragraph, the Company, in addition to and not limitation of any rights, remedies or damages
available to the Company at law or in equity, shall be entitled to a permanent injunction in
order to prevent or to restrain any such breach by Executive, or by Executive’s partners,
agents, representatives, servants, employers, Executive and/or any and all persons directly
or indirectly acting for or with him.
	 
	8.	 	Reasonable Cooperation. Executive agrees to make himself reasonably available to,
and to cooperate with the Company and its attorney concerning any pending and future
investigations or litigation matters arising out of or relating to his employment with the
Company or other matters concerning the Company about which Executive had or has knowledge or
involvement. Cooperation for purposes of this provision will include but not be limited to i)
making himself reasonably available for interviews and discussion with the Company’s counsel
as well as depositions and testimony, ii) assisting the Company in the presentation of its
position in an investigation or administrative proceeding and cooperating fully in the
development and presentation of such defense or position. In connection with any cooperation,
consultation and advice rendered under this Agreement after Executive’s termination of
employment, the Company will provide Executive with reasonable compensation and will reimburse
Executive for reasonable expenses incurred by Executive, including but not limited to, travel,
lodging, telephone and similar expenses, as well as reasonable attorneys’ fees (if independent
legal counsel is necessary).
	 
	9.	 	Indemnification; Insurance. To the fullest extent permitted by the Company’s charter
documents and applicable law, the Company agrees to defend and indemnify Executive and hold
Executive harmless against any liability that Executive incur within the scope of his service
as an officer and director of the Company. The Company further agrees to use commercially
reasonable efforts to purchase and maintain adequate Directors’ and Officers’ liability
insurance. The terms applicable to the Company’s indemnification and insurance obligations
are more fully set forth in the Director and Officer Indemnification Agreement between the
Company and Executive entered as January 31, 2008.
	 
	10.	 	Change in Control Agreements. The Company shall include Executive in any existing
and future change in control agreements applicable to any other executive officer or director
of the Company except to the extent Executive and the Company have agreed in writing that such
change in control agreements (or portions thereof) shall not apply to Executive.
	 
	11.	 	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




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	 	 	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.






	12.	 	Miscellaneous.






	 	12.1	 	The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of Delaware.
	 
	 	12.2	 	Sections 5.7, 6.5, 7, 8 and 9 of this Agreement shall remain in full force and
effect and shall survive the termination of this Agreement.
	 
	 	12.3	 	In any action undertaken to enforce the terms of this Agreement, the prevailing
party shall be reimbursed by the non-prevailing party for such prevailing party’s
reasonable attorneys’ fees and expenses, including the costs of enforcing a judgment.
	 
	 	12.4	 	It is the intent of the parties that this Agreement and the 2008 Agreement be
administered so as to comply with Section 409A of the Internal Revenue Code and all
applicable regulations. The parties intend that any payment due hereunder shall be
delayed or adjusted as deemed reasonably necessary by counsel for the Company in order
to avoid 409A penalties. Without limiting the generality of the foregoing and
notwithstanding any provisions in this Agreement or the 2008 Agreement to the contrary,
if any portion of the payments or benefits to be received by Executive under this
Agreement or the 2008 Agreement would be considered deferred compensation under Section
409A, then the following provisions will apply to the relevant portion:






	 	12.4.1	 	For purposes of this Agreement and the 2008 Agreement, no payment that would
otherwise be made and no benefit that would otherwise be provided upon a
termination of employment will be made or provided unless and until such
termination of employment is also a “Separation from Service” (as determined in
accordance with Section 409A of the Code);
	 
	 	12.4.2	 	If the 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 or the 2008 Agreement
upon a Separation from Service during the six-month period immediately
following the Separation from Service will instead be paid or made available on
the earlier of (i) the first business day of the seventh month following the
date the Executive incurs a Separation from Service, and (ii) the Executive’s
death (the applicable date, the “Permissible Payment Date”);
	 
	 	12.4.3	 	With respect to any amount of expenses eligible for reimbursement under this
Agreement or the 2008 Agreement, such expenses will be reimbursed




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	 	 	 	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 the Executive but in no event later than
December 31 of the year following the year in which Executive incurs the
related expense;
	 
	 	12.4.4	 	Payments delayed under this Section 12.4 as a result of the application of
Section 409A will not accrue interest. In no event will 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 will Executive’s right to reimbursement or in-kind benefits
be subject to liquidation or exchange for another benefit;
	 
	 	12.4.5	 	With respect to any “tax gross-up payment” (as determined in accordance with
Section 409A of the Code), subject to any applicable deadlines in Section 5.8,
all tax gross-up payments shall be made no later than December 31 of the year
following the year in which Executive remits the related taxes; and
	 
	 	12.4.6	 	Each payment under this Agreement and the 2008 Agreement will be considered a
“separate payment.”






	13.	 	Validity. 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.





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



	 	 	 	 	 	 	 	 	 
	Dana Holding Corporation	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Robert H. Marcin
 

Robert H. Marcin
	 	 	 	/s/ Gary L. Convis
 

Gary L. Convis
	 	 
	 

	 	Chief Administrative Officer	 	 	 	 	 	 






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