<PAGE> 1
[DANA - LOGO]
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the Fiscal Year Ended December 31, 1997 Commission file number 1-1063
- ------------------------------------------- -------
DANA CORPORATION
- -------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Virginia 34-4361040
- ----------------------------- -------------------------------
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
4500 Dorr Street, Toledo Ohio 43615
- ------------------------------- -------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (419) 535-4500
--------------------
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of each class which registered
- ------------------------------------ ------------------------------------
Common Stock, $1 par value New York, Pacific, London Stock Exchanges
Securities registered pursuant to Section 12(g) of the Act:
None
-------------------------------
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports required
to be flied by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
----- -----
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or Information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. ____
The aggregate market value of the voting stock held by non-affiliates of the
registrant at February 13, 1998, was approximately $5,809,669,000.
---------------
The number of shares of registrant's Common Stock, $1 Par Value, outstanding at
February 13, 1998, was 105,445,427 shares.
DOCUMENTS INCORPORATED BY REFERENCE
Document Where Incorporated
-------------------------------------- ------------------------------
1. Proxy Statement dated February 27, 1998 Part III (Items 10, 11, 12, 13)
for Annual Meeting of Shareholders
to be held on April 1, 1998.
Part I (Item 1)
2. Annual Report to Shareholders Part II (Items 5, 6, 7, 8)
for year ended December 31, 1997. Part IV (Item 14)
- -------------------------------------------------------------------------------
The Exhibit Index is located at pages 25-27 of the sequential numbering system.
1
<PAGE> 2
INDEX
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DANA CORPORATION - FORM 10-K
FOR THE YEAR ENDED DECEMBER 31, 1997
10-K Pages
----------
Cover 1
Index 2
Part 1
- ----------
Item 1 - Business 3-10
-----------------
Geographical Areas, Markets, Customer Dependence,
Products, Material Source and Supply, Seasonality, Backlog,
Competition, Strategy, Patents and Trademarks, Research
and Development, Employment, Environmental
Compliance, and Executive Officers
of the Registrant
Item 2 - Properties 11
-------------------
Item 3 - Legal Proceedings 11
--------------------------
Item 4 - Submission of Matters to a Vote of
--------------------------------------------
Security Holders 11
----------------
Part II
- -------
Item 5 - Market for Registrant's Common Equity and
--------------------------------------------------
Related Stockholder Matters 12
---------------------------
Item 6 - Selected Financial Data 12
---------------------------------
Item 7 - Management's Discussion and Analysis of
------------------------------------------------
Financial Condition and Results of Operations 12
---------------------------------------------
Item 8 - Financial Statements and Supplementary Data 12
----------------------------------------------------
Item 9 - Changes in and Disagreements with Accountants on
----------------------------------------------------------
Accounting and Financial Disclosure 12
------------------------------------
Part III
Item 10 - Directors and Executive Officers of the
-------------------------------------------------
Registrant 13
---------
Item 11 - Executive Compensation 13
--------------------------------
Item 12 - Security Ownership of Certain Beneficial
--------------------------------------------------
Owners and Management 13
---------------------
Item 13 - Certain Relationships and Related Transactions 13
---------------------------------------------------------
Part IV
Item 14 - Exhibits, Financial Statement Schedules,
--------------------------------------------------
and Reports on Form 8-K 14-27
-----------------------
(a)(1) Financial Statements
(2) Financial Statement Schedules
(3) Exhibits
(b) Reports on Form 8-K
Signatures 28-29
- ----------
2
<PAGE> 3
PART I
ITEM I - BUSINESS
- -----------------
Dana Corporation, Incorporated in 1905, is a global leader in the
engineering, manufacturing and distribution of components and systems for
worldwide vehicular and industrial manufacturers. Dana also owns Dana Credit
Corporation (DCC), a leading provider of lease financing services in certain
markets.
Dana's Vehicular segment is comprised of components and parts used on
light, medium and heavy trucks, sport utility vehicles, trailers, vans and
automobiles. The Company's products include components for drivetrain systems,
such as axles and driveshafts; engine parts, such as gaskets and sealing
systems, piston rings, and filtration products; structural components, such as
vehicular frames, engine cradles and rails; and chassis products, such as
steering and suspension components. In 1997, sales from this segment accounted
for 76% of Dana's sales.
The Company's Industrial segment products are used in off-highway
vehicle and stationary equipment applications. These products include components
for industrial power transmission products, such as electrical and mechanical
brakes and clutches, drives and motion control devices and fluid power systems,
such as pumps, cylinders and control valves. Sales from this segment amounted to
24% of the Company's 1997 sales.
Dana's Lease Financing segment is almost exclusively comprised of the
operations of DCC which offers lease financing services in the form of capital
markets specialized lease transactions worldwide and customized equipment
financing programs in the United States (U.S.), Canada, the United Kingdom and
continental Europe. The revenue derived from such services is included in
Revenue from Lease Financing and Other Income in Dana's financial statements and
is not considered a component of net sales.
"Note 16. Business Segments" at pages 34 - 36 of Dana's 1997 Annual
Report is incorporated herein by reference.
GEOGRAPHICAL AREAS
- -------------------
The Company maintains four regional structures - North America, Europe,
South America and Asia/Pacific - to facilitate financial and statutory reporting
and tax compliance on a worldwide basis. The regional structures also provide
administrative support to the six Strategic Business Units (SBUs) - Automotive
Components, Engine Components, Heavy Truck Components, Industrial Components,
Off-Highway Components and Leasing Services - established in 1997 to better
serve Dana's global markets.
The Company's operations are located in the following countries:
<TABLE>
<CAPTION>
North America Europe South America Asia/Pacific
------------- ------ ------------- -------------
<S> <C> <C> <C> <C> <C>
Canada Austria Poland Argentina Australia Malaysia
Mexico Belgium Spain Brazil China Singapore
United States France Sweden Colombia Hong Kong Taiwan
Germany Switzerland Uruguay Japan Thailand
India United Kingdom Venezuela Korea New Zealand
Italy Netherlands
</TABLE>
Dana's international subsidiaries and affiliates manufacture and sell a
number of vehicular and industrial products which are similar to those produced
by Dana in the U.S. In addition to normal business risks, operations outside the
U.S. are subject to other risks including, among others, changing political,
economic and social environments, changing governmental laws and regulations,
currency revaluations and market fluctuations.
Consolidated international sales were $2.3 billion, or 28% of the
Company's 1997 sales. Including U.S. exports of $697 million, international
sales accounted for 36% of 1997 consolidated sales. International operating
income was $109 million, or 17% of consolidated 1997 operating income. In
addition, there was $27 million of equity in earnings of international
affiliates in 1997.
"Note 6. International Operations" at page 30 of Dana's 1997 Annual
Report is incorporated herein by reference. See also "Note 16. Business
Segments" at pages 34-36 of Dana's 1997 Annual Report.
3
<PAGE> 4
MARKETS
- -------
During the past three years, Dana's sales to Vehicular and Industrial
original equipment (OE) manufacturers and the related service parts markets were
as follows:
<TABLE>
<CAPTION>
Market Analysis by Business Segment*
Percentage of Consolidated Sales
-------------------------------------
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
Vehicular Products-
OE Manufacturers 58% 58% 58%
Service Parts 22% 22% 18%
---- ---- ----
Total 80% 80% 76%
Industrial Products-
OE Manufacturers 10% 10% 14%
Service parts 10% 10% 10%
---- ---- ----
Total 20% 20% 24%
</TABLE>
*Note: End use of products is not always identifiable but these are reasonable
estimates derived from expected customer usages.
Sales in the Lease Financing segment consisted of real estate sales and
did not exceed 1% of consolidated sales for 1995, 1996 or 1997. Lease financing
revenues (amounting to less than 5% of Dana's consolidated 1997 total revenues)
have been excluded from this market analysis.
CUSTOMER DEPENDENCE
- -------------------
The Company has thousands of customers around the world and has
developed long-standing business relationships with many of these customers. The
Company's attention to cost, as well as quality, delivery and service, has been
recognized by numerous customers who have awarded the Company supplier quality
awards. Ford Motor Company (Ford) and Chrysler Corporation (Chrysler) were the
only customers accounting for more than 10% of the Company's consolidated sales
in 1997. The Company has been supplying product to Ford, Chrysler and their
subsidiaries for many years. Sales to Ford, as a percentage of the Company's
sales, were 17%, 16% and 17% in 1995, 1996 and 1997, respectively. Sales to
Chrysler, as a percentage of sales, were 13%, 14% and 14% in 1995, 1996 and
1997, respectively. Loss of all or a substantial portion of the Company's sales
to Ford, Chrysler or other large volume customers would have a significant
adverse effect on the Company's financial results until this lost sales volume
could be replaced.
4
<PAGE> 5
PRODUCTS
- --------
The major groups of products within the Vehicular segment are as
follows:
<TABLE>
<CAPTION>
Major Product Groups - Vehicular Segment
Percentage of Consolidated Sales
----------------------------------------
1995 1996 1997
---- ---- ----
Types of Products
- -----------------
<S> <C> <C> <C>
Vehicular products for highway vehicles,
primarily trucks
Front and rear axles 30% 30% 29%
Engine parts and accessories 13% 12% 15%
Driveshafts and universal joints 10% 11% 12%
Frames and other structural components 8% 9% 10%
Other Vehicular products 19% 18% 10%
-- -- --
Total 80% 80% 76%
</TABLE>
No product or product group within the Industrial or Lease Financing
segments exceeded 10% of consolidated sales during these periods.
5
<PAGE> 6
MATERIAL SOURCE AND SUPPLY
- --------------------------
Most raw materials (such as steel) and semi-processed or finished items
(such as forgings and castings) are purchased from long-term suppliers located
within the geographic regions of the Dana operating units. Generally, these
materials are available from numerous sources in quantities needed by the
Company. Temporary shortages of a particular material or part occasionally
occur, but the overall availability of materials is not considered to be a
significant risk factor by the Company.
SEASONALITY
- ------------
Dana's businesses are not considered to be seasonal, but the OE
vehicular businesses are closely related to the vehicle manufacturers'
production schedules.
BACKLOG
- -------
The majority of Dana's products are not on a backlog status. They are
produced from readily available materials and have a relatively short
manufacturing cycle. Each operating unit of the Company maintains its own
inventories and production schedules, and many products are available from more
than one facility. Production capacity is adequate to handle current
requirements; anticipated growth in Dana's product lines is regularly reviewed
to determine when additional capacity may be needed.
COMPETITION
- -----------
In its Vehicular and Industrial segments, the Company competes worldwide
with a number of other manufacturers and distributors which produce and sell
similar products. These competitors include vertically-integrated units of the
Company's major vehicular OE customers and a number of independent U.S. and
international suppliers. The Company's traditional U.S. OE customers, in
response to substantial international competition in the past few years, have
expanded their worldwide sourcing of components while reducing their overall
number of suppliers. The Company has established operations throughout the world
to enable Dana to be a strong global supplier of its core products.
In the Lease Financing segment, the Company's primary focus is on
leasing activities. The Company's competitors include national and regional
leasing and finance organizations.
STRATEGY
- --------
The Company is actively pursuing two broad strategies, focused around
Dana's six customer and market-focused, global SBUs.
The first strategy is to significantly reduce the effects of the
economic cycle by diversifying the Company's products and reducing its
dependence on highway vehicle OE production. Dana's long-term goal is to obtain
50% of sales from highway vehicle OE customers and 50% from distribution,
off-highway, service and industrial markets. In 1997, sales from highway
vehicle OE customers were 58% of Dana's total, while distribution, off-highway,
service and industrial sales were 42%. The Company continues to seek expansion
in its off-highway and distribution businesses by increasing market penetration
and broadening its product offerings through internal growth and acquisition.
The second strategy focuses on obtaining a balance between U.S. and
international sales. Dana has well-defined regional organizations in North
America, South America, Europe and Asia/Pacific in support of this initiative.
In 1997, international sales, including exports from the U.S., totaled 36% of
consolidated sales. The Company's long-term goal is to derive 50% of its sales
(including exports) from customers outside the U.S. Although this strategy is
subject to certain risks, the Company believes broadening its sales base will
enable it to offset effects of economic downturns in specific countries, source
materials from the areas of the world which offer the lowest cost, and provide
access to markets which have the greatest growth potential. To accomplish this
objective, the Company is focusing on meeting OE customers' needs in each of the
local markets in which those customers operate, both through exports and by
locating manufacturing or assembly facilities in markets where key OE customers
have assembly plants.
As part of the continuing efforts to focus on its core businesses, the Company
in 1997 announced or completed nine divestitures of businesses with annual
sales of nearly $900 million. The Company also completed the acquisitions of
the piston ring and cylinder liner operations of SPX Corporation and the assets
of Clark-Hurth Components from Ingersoll-Rand. The Company also announced the
acquisition of the global axle and brake business of Eaton Corporation which
was completed in January 1998. Refer to "Note 21, Acquisitions" for additional
information related to these activities.
6
<PAGE> 7
PATENTS AND TRADEMARKS
- ----------------------
Dana's proprietary drivetrain, engine parts, chassis, structural
components, fluid power systems, and industrial power transmission product
lines have strong identities in the Vehicular and Industrial markets which Dana
serves. Throughout these product lines, Dana also owns or is licensed to
manufacture and sell its products under a number of patents and licenses, which
have been obtained over a period of years and expire at various times, Dana
considers each of them to be of value and agressively protects its rights
throughout the world against infringement. Because the Company is involved with
many product lines, the loss or expiration of any particular patent or license
would not materially affect the sales and profits of the Company.
Dana owns numerous trademarks which are registered in many countries
enabling Dana to market its products worldwide. The Dana(R), Spicer(R),
Parish(R), Perfect Circle(R), Victor Reinz(R), Wix(R), Weatherhead(R), Warner
Electric(R) and Gresen(R) trademarks, among others, are widely recognized in
their respective industries.
RESEARCH AND DEVELOPMENT
- ------------------------
Dana's facilities engage in engineering, research and development, and
quality control activities to improve the reliability, performance and
cost-effectiveness of Dana's products and to design and develop new products for
existing and anticipated applications. The Company employs advanced technology
and methods to achieve these improvements. To promote efficiency and reduce
development costs, Dana's research and engineering people work closely with OE
manufacturing customers on special products and systems designs. Dana's
consolidated worldwide expenditures for engineering, research and development,
and quality control programs were $149 million in 1995, $164 million in 1996 and
$193 million in 1997.
EMPLOYMENT
- -----------
Dana's worldwide employment (including consolidated subsidiaries) was
approximately 47,900 at December 31, 1997.
ENVIRONMENTAL COMPLIANCE
- ------------------------
The Company makes capital expenditures in the normal course of business,
as necessary to ensure that its facilities are in compliance with
applicable environmental laws and regulations. Costs of environmental compliance
did not have a materially adverse effect on the Company's capital expenditures,
earnings or competitive position in 1997, and the Company currently does not
anticipate future environmental compliance costs will be material.
"Environmental Compliance and Remediation" under "Note 1. Summary of Significant
Accounting Policies" on page 28 of Dana's 1997 Annual Report is incorporated
herein by reference.
7
<PAGE> 8
EXECUTIVE OFFICERS OF THE REGISTRANT
- ------------------------------------
The Company's executive officers and their ages, present positions and
other positions within the past five years are as follows. Except as otherwise
indicated, all positions are with Dana. The first five officers listed are the
members of Dana's Policy Committee.
<TABLE>
<CAPTION>
Name Present Position(s) Other Positions
and Age with the Registrant During the Past 5 Years
- ------- ------------------- ------------------------
<S> <C> <C>
S. J. Morcott Chairman of the Board of Chief Operating Officer, 1986-97; President,
(59) Directors since 1990; Chief 1986-95; Director since 1985; Chairman of the
Executive Officer since 1989 Board of Hayes-Dana Inc., 1987-95 (1)
J. M. Magliochetti Chief Operating Officer since President - Dana North American Operations,
(55) 1997; Director and President 1992-95
since 1996
J. S. Simpson Chief Financial Officer since Treasurer, 1996-97; President - Dana Asia
(56) 1997; Vice President of Finance Pacific Operations, 1992-95
since 1996
W. J. Carroll President - Automotive President - Diversified Products & Distribution,
(53) Components Group since 1997 1996-97; President - Dana Distribution Service
Group, 1995-97; President - DTF Trucking,
1985-97; Chairman of the Board of Dana
Canada Inc., 1995-97; President of Dana
Canada Inc., 1993-97 (1)
M. A. Franklin, III President - Dana International President - Dana Europe, 1993-97
(50) since 1997
R. L. Clayton Vice President - Heavy Truck Vice President and General Manager - Spicer
(37) Components Group since 1997 Heavy Axle & Brake Division, 1996-97;
General Manager - Spicer Clutch Division,
1995-96; Director of Planning and
Development - Reinz-Dichtungs GmbH, 1993-
95 (2)
B. N. Cole President - Off-Highway President - Structural Components Group,
(55) Components Group since 1997 1995-97; Vice President - Heavy Vehicle -
Dana North American Operations, 1991-95
T. A. Dattilo Vice President - Sealing President - Victor Products Division, 1993-97
(46) Products and Distribution since
January 1998
C. J. Eterovic President - Dana South America
(63) since 1993
H.E. Ferreira Vice President- Engine Group Vice President - Perfect Circle Engine
(58) Products since 1996 Products Group, 1995-96; Vice President,
Mercosur-Dana South America, 1994-95;
Chairman - Administration Council of Albarus
S.A., 1992-95 (3)
</TABLE>
8
<PAGE> 9
<TABLE>
<CAPTION>
Name Present Position(s) Other Positions
and Age with the Registrant During the Past 5 Years
- -------- --------------------- -------------------------
<S> <C> <C>
R.B. Forde Vice President - Marketing - Group Vice President - Wix Filtration Products
(61) Engine Components Group Group, 1995-97; Vice President and General
since January 1998 Manager - Wix Division, 1987-95
M. F. Greene Vice President - Structural Group Vice President - Parish Structural
(49) Products since 1997 Components Group, 1997; Vice President and
General Manager - Parish Light Vehicle
Structures Division, 1991-97
F. J. Hawes Controller - North American Vice President and Corporate Controller -
(51) Operations since 1996 Dana Canada, Inc., 1995-96; Corporate
Controller - Hayes-Dana Inc., 1992-95 (1)
C. F. Heine President - Dana Asia Pacific Vice President - Asia Pacific
(45) since 1996 Operations, 1995; General Manager - Spicer
Off-Highway Axle Division, 1993-94
C. W. Hinde Vice President and Chief
(59) Accounting Officer since 1992;
Assistant Treasurer since 1986
J. M. Laisure Vice President - Modular Group Vice President - Spicer Modular
(46) Systems since 1997 Systems Group, 1994-97: Vice President and
General Manager - Spicer Transmission
Division, 1991-94
W. M. Lasky Vice President - Filtration Vice President and General Manager - Wix
(50) Products since January 1998 Filtration Products Division, 1995-97; Vice
President and General Manager - Spicer
Clutch Division, 1993-95
C. J. McNamara President - Engine Components President - Victor Reinz Sealing Products
(59) Group since 1997 Group, 1995-97; Vice President - Automotive -
Dana North American Operations, 1993-95
J. I. Melgar Vice President - Driveshaft Executive President - Metalmecanica
(50) Products since 1997 Consolidada, C.A., 1993-97 (4)
E. Mendoza Chairman- Spicer, S.A. since General Director - Spicer, S.A., 1981-93(5)
(60) 1994(5)
W. L. Myers President - Automotive Axle President - Spicer Driveshaft Group 1995-97;
(57) Products since 1997 Vice President and General Manager - Spicer
Driveshaft Division, 1986-95
K. A. Nitsch President - Dana Europe since Vice President and General Manager - Dana
(47) 1997 World Trade, 1996-97; General Manager -
Dana World Trade, 1994-96; Director - Dana
World Trade, 1991-94
A. G. Paton Vice President - Treasurer Vice President - Corporate Planning, 1995-97;
(50) since 1997 Senior Vice President - Finance and
Corporate Secretary, Hayes-Dana Inc., 1995;
Vice President - Finance, Hayes-Dana Inc.,
1987-95 (1)
</TABLE>
9
<PAGE> 10
<TABLE>
<CAPTION>
Name Present Position(s) Other Positions
and Age with the Registrant During the Past 5 Years
- ------- ------------------- -----------------------
<S> <C> <C>
M. A. Plumley Vice President - Industrial Group Vice President - Dana Industrial 1996-
(47) Components Group since 1997 97; General Manager - Plumley Companies,
Inc., 1995-96; Chairman and Chief Executive
Officer - Plumley Companies, Inc., 1988-95 (6)
J. H. Reed Vice President - Manufacturing President - Spicer Axle Group, 1995-97;
(65) since 1997 President - Light Truck Dana North American
Operations, 1995-97; Vice President - Light
Vehicle Dana North American Operations,
1992-95; President and General Manager -
Spicer Axle Division, 1991-95
R. C. Richter Vice President - Administration General Manager - Perfect Circle Sealed
(46) since 1997 Power Europe, 1997; Vice President and
General Manager - Perfect Circle Europe,
1994-97; Dana Corporate Controller, 1989-94;
Dana Vice President - Administration, 1987-94
A. J. Shelbourn President - Dana World Trade Group Vice President - Dana Distribution,
(52) since January 1998 North American Operations, 1996-97; Vice
President and General Manager - Dana
Distribution U.K., 1994-96; General Manager -
Dana Distribution U.K., 1991-94
E. J. Shultz Chairman and President - Dana President - Lease Financing, 1994-95;
(53) Credit Corporation since 1995 President - Financial Services, 1990-94
M. J. Strobel Vice President since 1976;
(57) General Counsel since 1970;
and Secretary since 1982
J. H. Woodward, Jr. Vice President and Corporate Controller - Dana North American Operations,
(45) Controller since 1996 1994-96; Division Controller - Spicer Heavy
Axle & Brake Division, 1992-94
</TABLE>
Notes:
(1) Hayes-Dana Inc., formerly a majority-owned Dana subsidiary located in
Canada, is now a wholly-owned subsidiary and has been renamed Dana Canada Inc.
(2) Reinz-Dichtungs GmbH is a wholly-owned Dana subsidiary located in Germany.
(3) Albarus S.A. is a majority-owned Dana subsidiary located in Brazil.
(4) Metalmecanica Consolidada, C.A. is a Dana affiliate located in Venezuela.
(5) Spicer, S.A. is a Dana affiliate located in Mexico.
(6) Plumley Companies, Inc., formerly a wholly-owned Dana subsidiary located in
the U.S., is now a Dana division.
The Company's officers are elected annually by the Board of Directors
at its first meeting after the Annual Meeting of Shareholders. None of the
officers has a family relationship with any other Dana officer or director or an
arrangement or understanding with any Dana officer or other person pursuant to
which he was elected as an officer of the Company.
10
<PAGE> 11
ITEM 2 - PROPERTIES
- -----------------
Dana owns the majority of the manufacturing facilities and the larger
distribution facilities for its Vehicular and Industrial products. Several
manufacturing facilities and many of the Company's smaller distribution outlets,
service branches, and offices are leased. The facilities, in general, are
well-maintained and adapted to the operations for which they are being used, and
their productive capacity is adjusted as required by market and customer growth.
On a geographic basis, Dana's facilities (including those of
consolidated subsidiaries) are located as follows:
Dana Facilities by Geographic Region
------------------------------------
<TABLE>
<CAPTION>
Type of North South Asia/
Facility America Europe America Pacific Total
- -------- ------- ------ --------------- -----
<S> <C> <C> <C> <C> <C>
Manufacturing 110 56 23 9 198
Distribution 25 2 9 22 58
Service Branches, Offices 46 9 5 13 73
--- -- -- -- ---
Total 181 67 37 44 329
=== == == == ===
</TABLE>
ITEM 3 - LEGAL PROCEEDINGS
- --------------------------
The Company and its consolidated subsidiaries are parties to various
pending judicial and administrative proceedings arising in the ordinary course
of business. The Company's management and legal counsel have reviewed the
probable outcome of these proceedings, the costs and expenses reasonably
expected to be incurred, the availability and limits of the Company's
insurance coverage, and the Company's established reserves for uninsured
liabilities. While the outcome of the pending proceedings cannot be predicted
with certainty, based on its review, management believes that any liabilities
that may result are not reasonably likely to have a material effect on the
Company's liquidity, financial condition or results of operations.
Under the rules of the Securities and Exchange Commission, certain
environmental proceedings are not deemed to be ordinary routine proceedings
incidental to the Company's business and are required to be reported in the
Company's annual and/or quarterly reports. The Company is not currently a party
to any such proceedings.
ITEM 4 - SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
- -------------------------------------------------------------
- - None -
11
<PAGE> 12
PART II
ITEM 5 - MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
- -----------------------------------------------------------------------------
Dana's common stock is listed on the New York, Pacific, and London Stock
Exchanges. On February 13, 1998, there were 32,137 shareholders of record.
Dividends have been paid on the common stock every year since 1936.
Quarterly dividends have been paid since 1942.
"Shareholders' Investment" under "Additional Information" at page 50 of
Dana's 1997 Annual Report is incorporated herein by reference.
ITEM 6 - SELECTED FINANCIAL DATA
- --------------------------------
"Financial Highlights" under "Eleven Year History" at page 51 of Dana's
1997 Annual Report is incorporated herein by reference.
ITEM 7 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
- -------------------------------------------------------------------------------
OF OPERATIONS
- -------------
"Management's Discussion and Analysis of Financial Condition and Results
of Operations" at pages 41-45 of Dana's 1997 Annual Report is incorporated
herein by reference.
ITEM 8 - FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
- ----------------------------------------------------
The financial statements, together with the report thereon of Price
Waterhouse LLP dated January 21, 1998, at pages 22-40 of Dana's 1997 Annual
Report and "Unaudited Quarterly Financial Information" under "Shareholders'
Investment" at page 50 of Dana's 1997 Annual Report are incorporated herein by
reference.
ITEM 9 - CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
- ------------------------------------------------------------------------
FINANCIAL DISCLOSURE
- ---------------------
- - None -
12
<PAGE> 13
PART III
ITEM 10 - DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
- ------------------------------------------------------------
Information regarding Dana's directors and executive officers is set out
in Part I, Item 1 of this Form 10-K and in Dana's Proxy Statement dated February
27,1998, for the Annual Meeting of Shareholders to be held on April 1, 1998 (the
"1998 Proxy Statement"). "Election of Directors" and "Section 16(a) Beneficial
Ownership Reporting Compliance" from the 1998 Proxy Statement are incorporated
herein by reference.
ITEM 11 - EXECUTIVE COMPENSATION
- ---------------------------------
"Compensation" under "The Board and its Committees," "Executive
Compensation," "Compensation Committee Report on Executive Compensation," and
"Comparison of Five-Year Cumulative Total Return" from the 1998 Proxy Statement
are incorporated herein by reference.
ITEM 12 - SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
- ------------------------------------------------------------------------
"Stock Ownership" from the 1998 Proxy Statement is incorporated herein
by reference.
ITEM 13 - CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
- --------------------------------------------------------
"Other Transactions" and "Transactions With Management" from the 1998
Proxy Statement are incorporated herein by reference.
13
<PAGE> 14
ITEM 14 - EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
- -------------------------------------------------------------------------
<TABLE>
<S> <C>
Page in
(a) The following documents are incorporated by reference and Annual Report
filed as part of this report: --------------
(1) Financial Statements:
---------------------
Report of Independent Accountants 22
Statement of Income for each of the three years
in the period ended December 31, 1997 23
Balance Sheet at December 31, 1996 and 1997 24
Statement of Cash Flows for each of the three
years in the period ended December 31, 1997 25
Statement of Shareholders' Equity for each of the
three years in the period ended December 31, 1997 26
Notes to Financial Statements 27 - 40
Unaudited Quarterly Financial Information 50
Page in
Form 10-K
-----------
(2) Financial Statement Schedules:
-------------------------------
Report of Independent Accountants on Financial
Statement Schedule for the three
years ended December 31, 1997 15
Valuation and Qualifying Accounts and
Reserves (Schedule II) 16 - 20
Supplementary Information - Stock Plans 21 - 23
Supplementary Information - Commitments and Contingencies 24
All other schedules are omitted because they are not
applicable or the required information is shown in the
financial statements or notes thereto.
(3) Exhibits - The Exhibits listed in the "Exhibit Index" are filed
as part of this report. 25 - 27
(b) Reports on Form 8-K
-------------------
None
</TABLE>
14
<PAGE> 15
Report of Independent Accountants on
Financial Statement Schedule
To the Board of Directors
of Dana Corporation
Our audits of the consolidated financial statements referred to in our report
dated January 21, 1998 appearing on page 22 of the 1997 Annual Report to
Shareholders of Dana Corporation (which report and consolidated financial
statements are incorporated by reference in this Annual Report on Form 10-K)
also included an audit of Financial Statement Schedule II appearing on pages 16
through 20 of this Form 10-K. In our opinion, this Financial Statement Schedule
presents fairly, in all material respects, the information set forth therein
when read in conjunction with the related consolidated financial statements.
PRICE WATERHOUSE LLP
Toledo, Ohio
January 21, 1998
15
<PAGE> 16
DANA CORPORATION AND CONSOLIDATED SUBSIDIARIES
----------------------------------------------
SCHEDULE II(a) - VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
---------------------------------------------------------------
ALLOWANCE FOR DOUBTFUL ACCOUNTS RECEIVABLE
------------------------------------------
<TABLE>
<CAPTION>
Adjustment
Trade accounts arising
receivable from change
Balance at Additions "written off" in currency Balance at
beginning charged net of exchange rates end of
of period to income recoveries and other items period
----------- ---------- ----------- --------------- -----------
Year ended
<S> <C> <C> <C> <C> <C>
December 31, 1995 $19,646,000 $9,281,000 $(5,322,000) $ (64,000) $23,541,000
December 31, 1996 $23,541,000 $8,900,000 $(6,315,000) $(151,000) $25,975,000
December 31, 1997 $25,975,000 $9,455,000 $(6,682,000) $ 835,000 $29,583,000
</TABLE>
16
<PAGE> 17
DANA CORPORATION AND CONSOLIDATED SUBSIDIARIES
----------------------------------------------
SCHEDULE II(b) - VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
---------------------------------------------------------------
ALLOWANCE FOR CREDIT LOSSES - LEASE FINANCING
---------------------------------------------
<TABLE>
<CAPTION>
Adjustment
arising
Amounts from change
Balance at Additions "written off" in currency Balance at
beginning charged net of exchange rates end of
of period to income recoveries and other items period
----------- ---------- ----------- --------------- -----------
Year ended
<S> <C> <C> <C> <C> <C>
December 31, 1995 $40,789,000 $15,578,000 $ (9,000,000) $ 58,000 $47,425,000
December 31, 1996 $47,425,000 $12,349,000 $ (9,299,000) $ 350,000 $50,825,000
December 31, 1997 $50,825,000 $12,141,000 $ (9,851,000) $(462,000) $52,653,000
</TABLE>
17
<PAGE> 18
DANA CORPORATION AND CONSOLIDATED SUBSIDIARIES
----------------------------------------------
SCHEDULE II(c) - VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
---------------------------------------------------------------
ALLOWANCE FOR LOAN LOSSES
-------------------------
<TABLE>
<CAPTION>
Adjustment
arising
Amounts from change
Balance at Additions "written off" in currency Balance at
beginning charged net of exchange rates end of
of period to income recoveries and other items period
----------- ---------- ----------- --------------- -----------
Year ended
<S> <C> <C> <C> <C> <C>
December 31, 1995 $ 5,639,000 $ 1,551,000 $ (3,265,000) $(548,000) $3,377,000
December 31, 1996 $ 3,377,000 $ 994,000 $ (3,161,000) -- $1,210,000
December 31, 1997 $ 1,210,000 $ 1,843,000 $ (70,000) -- $2,983,000
</TABLE>
18
<PAGE> 19
DANA CORPORATION AND CONSOLIDATED SUBSIDIARIES
----------------------------------------------
SCHEDULE II(d) - VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
--------------------------------------------------------------
VALUATION ALLOWANCE - REAL ESTATE
---------------------------------
<TABLE>
<CAPTION>
Additions Amounts
Balance at charged "written off Balance at
beginning (credited) net of Acquisitions end of
of period to income recoveries and other items period
----------- ---------- ----------- --------------- -----------
Year ended
<S> <C> <C> <C> <C> <C>
December 31, 1995 $38,918,000 $ 292,000 $ (9,291,000) $ (507,000) $29,412,000
December 31, 1996 $29,412,000 $ 63,000 $(24,984,000) $ (71,000) $ 4,420,000
December 31, 1997 $ 4,420,000 $ (642,000) $ (526,000) -- $ 3,252,000
</TABLE>
19
<PAGE> 20
DANA CORPORATION AND CONSOLIDATED SUBSIDIARIES
----------------------------------------------
SCHEDULE II(e) - VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
---------------------------------------------------------------
VALUATION ALLOWANCE FOR DEFERRED TAX ASSETS
-------------------------------------------
<TABLE>
<CAPTION>
Adjustment
arising
Amounts from change
Balance at Additions "written off" in currency Balance at
beginning charged net of exchange rates end of
of Period to income recoveries and other items period
----------- ---------- ----------- --------------- -----------
Year ended
<S> <C> <C> <C> <C> <C>
December 31, 1995 -- -- -- -- --
December 31, 1996 -- $ 4,800,000 -- -- $ 4,800,000
December 31, 1997 $ 4,800,000 $30,400,000 $ (4,800,000) -- $30,400,000
</TABLE>
20
<PAGE> 21
DANA CORPORATION AND CONSOLIDATED SUBSIDIARIES
----------------------------------------------
SUPPLEMENTARY INFORMATION TO FINANCIAL STATEMENTS
-------------------------------------------------
EMPLOYEE STOCK OPTION PLAN
- ---------------------------
The Company's 1997 Amended Stock Option Plan (1997 Plan) provides for
the granting of options and/or stock appreciation rights (SARs) to key
employees to purchase 13,200,000 shares of common stock at exercise prices that
are no less than 100% of the market value of such stock at date of grant; the
exercise periods may extend for no more than ten years from date of grant.
The number of shares above and all references below to the number of
shares and per share prices have been adjusted for all stock splits and
distributions subsequent to the date the plan was approved.
The number of shares subject to options (by year of grant) at December
31, 1997, and the exercise prices per share were as follows:
<TABLE>
<CAPTION>
Number of Average Price
Shares Per Share Total
---------- ------------ -------------
Year granted-
<S> <C> <C> <C> <C>
1988 54,824 $ 18.75 $ 1,028,000
1989 28,650 21.06 602,500
1990 117,044 18.25 2,136,100
1991 84,900 16.38 1,390,200
1992 601,271 20.16 12,119,400
1993 505,748 27.56 13,939,700
1994 830,343 29.06 24,131,800
1995 904,250 31.06 28,084,800
1996 1,316,853 28.13 37,036,500
1997 1,062,900 38.44 40,855,200
---------- ------------
5,506,783 $161,324,200
========== ============
</TABLE>
At December 31, 1997, there were 3,478,026 shares available for future
grants under the 1997 Plan, including 350,000 shares which may, at the
discretion of a Committee of the Board of Directors, be issued for stock
distributions under the Company's Additional Compensation Plan. There were no
SARs outstanding at December 31, 1997.
21
<PAGE> 22
Options becoming exercisable and options exercised, their exercise
prices and their market prices during the three years ended December 31, 1997,
under the 1997 Plan and former plans were as follows:
<TABLE>
<CAPTION>
Exercise Price Market Price
-------------- --------------
No. Of Avg. Per Avg. Per
Shares Share Aggregate Share Aggregate
--------- ----- ---------- ----- ----------
<S> <C> <C> <C> <C> <C>
Options becoming
exercisable
(Market prices
at dates
exercisable):
Year ended
December 31,
1995 814,971 $ 24.32 $ 19,822,000 $ 29.78 $ 24,266,000
1996 1,070,901 27.09 29,016,000 29.08 31,141,000
1997 1,099,888 28.45 31,892,000 36.95 40,638,000
Options exercised
(Market prices
at dates
exercised):
Year ended
December 31,
1995 223,430 $17.93 $ 4,005,000 $28.74 $6,422,000
1996 417,260 19.46 8,119,000 31.53 13,158,000
1997 1,332,210 22.90 30,513,000 41.62 55,447,000
</TABLE>
The amount by which proceeds exceeded the par value of shares issued
under options was credited to additional paid-in capital. No amounts were
charged against income either at the time of granting options or issuing shares.
22
<PAGE> 23
The following table sets forth (1) the aggregate number of shares of the
Company's common stock subject, at December 31, 1997, to outstanding options,
(2) the average exercise price per share of such options, (3) the aggregate
exercise price of such options, (4) the range of expiration dates of such
options, and (5) the aggregate market value of such shares at February 13, 1998,
based on $55.44 per share, the closing price in the New York Stock Exchange
Composite Transactions Index as reported in THE WALL STREET JOURNAL:
<TABLE>
<CAPTION>
Aggregate Aggregate
No. of Shares Average Market
Covered By Exercise Aggregate Range of Value at
Outstanding Price Exercise Expiration February 13,
Options Per Share Price Dates 1998
------------ --------- ----------- ----------- ------------
<S> <C> <C> <C> <C> <C>
1997 Plan 5,506,783 $29.30 $ 161,324,200 7/11/98 $305,282,300
to
7/21/07
</TABLE>
At December 31, 1997, 1,079 employees of the Company and its
subsidiaries and affiliates held exercisable options under the 1997 Plan.
EMPLOYEES' STOCK PURCHASE PLAN
- ------------------------------
The Company has an Employees' Stock Purchase Plan which was approved by
the shareholders in 1994. As of December 31, 1997, approximately 37,800
employees of the Company and its subsidiaries were eligible to participate. Of
such employees, approximately 13,500 were participating at December 31, 1997.
NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
- -----------------------------------------
The Company has a Directors' Stock Option Plan for non-employee
Directors of the Company which was approved by the shareholders in 1993. The
Plan provides for the granting of options to purchase the Company's common stock
at prices equal to the market value of the stock at the date of grant. The
options are exercisable after one year for a period not to exceed ten years from
the date of grant. In 1995, 1996 and 1997, options were granted for 24,000,
21,000 and 24,000 shares, respectively, at per share exercise prices of $24.81
in 1995, $32.25 in 1996 and $31.81 in 1997. The options outstanding under the
plan expire between April 19, 2003 and April 21, 2007. At December 31, 1997,
options for 99,000 shares were outstanding, 75,000 options were exercisable and
there were 22,000 options available for future grant. During 1997, options for
21,000 shares became exercisable, with an aggregate exercise price of $677,250
and an aggregate market price at date of exercisability of $653,625. As of
February 13, 1998, the aggregate exercise price of the 99,000 options
outstanding under the Plan was $2,845,300 and the aggregate market value of
those options was $5,488,300.
23
<PAGE> 24
DANA CORPORATION AND CONSOLIDATED SUBSIDIARIES
----------------------------------------------
SUPPLEMENTARY INFORMATION TO FINANCIAL STATEMENTS
-------------------------------------------------
COMMITMENTS AND CONTINGENCIES
- ------------------------------
The Company and its consolidated subsidiaries are parties to various
legal proceedings (judicial and administrative) arising in the normal course of
business, including proceedings which involve environmental and product
liability claims. "Note 20. Commitments and Contingencies" on pages 38 and 39 of
Dana's 1997 Annual Report is incorporated herein by reference.
With respect to environmental claims, the Company is involved in
investigative and/or remedial efforts at a number of locations, including
"on-site" activities at currently or formerly owned facilities and "off-site"
activities at "Superfund" sites where the Company has been named as a
potentially responsible party. "Environmental Compliance and Remediation" under
"Note 1. Summary of Significant Accounting Policies" at page 28 of Dana's 1997
Annual Report is incorporated herein by reference. Reference is also made to
applicable portions of "Management's Discussion and Analysis of Financial
Condition and Results of Operations" at pages 41-45 of Dana's 1997 annual
report.
With respect to product liability claims, from time to time, the
Company is named in proceedings involving alleged defects in its products.
Currently included in such proceedings are a large number of claims (most of
which are relatively small) based on alleged asbestos-related personal injuries.
At December 31, 1997, approximately 41,000 such claims were outstanding, of
which approximately 3,000 were subject to pending settlement agreements. The
Company has agreements with its insurance carriers providing for the payment of
substantially all of the indemnity costs and the legal and administrative
expenses for these claims. The Company is also a party to a small number of
asbestos-related property damage proceedings. The Company's insurance carriers
are paying the major portion of the defense costs in connection with such cases,
and the Company has incurred no indemnity costs to date.
24
<PAGE> 25
EXHIBIT INDEX
<TABLE>
<CAPTION>
No. Description Method of Filing
- --- ----------- ----------------
<S> <C> <C>
3-A Restated Articles of Incorporation, effective Filed by reference to Exhibit 4 to Registrant's Form
June 1, 1994 8-A/A, Amendment No.3 filed October 4, 1994
3-B Restated By-Laws, effective December 9, Filed by reference to Exhibit 3-B to Registrant's
1996 Form 10-K for the year ended December 31, 1996
4-A Specimen Single Denomination Stock Filed by reference to Exhibit 4-B to Registrant's
Certificate Registration Statement No. 333-18403 filed
December 20, 1996
No class of long-term debt exceeds 10% of
Registrant's total assets. Registrant
will furnish copies of agreements defining
the rights of debt holders to the
Securities and Exchange Commission upon request.
4-B Rights Agreement, dated as of April 25, 1996, Filed by reference to Exhibit 1 to Registrant's Form
between Registrant and ChemicalMellon 8-A filed May 1, 1996
Shareholder Services, L.L.C., Rights Agent
10-A Additional Compensation Plan, effective Filed by reference to Exhibit A to Registrant's Proxy
January 1, 1995 Statement for its Annual Meeting on April 5, 1995
10-A(1) First Amendment to Additional Compensation Filed by reference to Exhibit 10-A(1) to Registrant's
Plan, dated July 17, 1995 Form 10-Q for the quarter ended June 30, 1995
10-A(2) Second Amendment to Additional Filed by reference to Exhibit 10-A(2) to Registrant's
Compensation Plan, effective January 1, 1996 Form 10-K for the year ended December 31, 1995
10-A(3) Third Amendment to Additional Compensation Filed by reference to Exhibit 10-A(3) to Registrant's
Plan, effective October 20, 1996 Form 10-K for the year ended December 31, 1996
10-E 1997 Stock Option Plan Filed by reference to Exhibit A to Registrant's Proxy
Statement for its Annual Meeting on April 2, 1997
10-E(1) First Amendment to 1997 Stock Option Plan, Filed by reference to Exhibit 10-E(2) to Registrant's
dated February 10, 1997 Form 10-Q for the quarter ended June 30, 1997
10-E(2) Second Amendment to 1997 Stock Option Filed with this Report
Plan, dated September 1, 1997
10-F Excess Benefits Plan, amended February 13, Filed by reference to Exhibit 10-F to Registrant's
1995 Form 10-Q for the quarter ended June 30, 1995
10-G Retirement Plan, effective December 13, 1994 Filed by reference to Exhibit 10-G to Registrant's
Form 10-K for the year ended December 31, 1995
10-G(1) First Amendment to Retirement Plan, adopted Filed by reference to Exhibit 10-G(1) to Registrant's
December 19, 1996 Form 10-K for the year ended December 31, 1996
10-G(2) Second Amendment to Retirement Plan, Filed by reference to Exhibit 10-G(2) to Registrant's
effective June 1, 1998 Form 10-Q for the quarter ended June 30, 1997
</TABLE>
25
<PAGE> 26
<TABLE>
<CAPTION>
No. Description Method of Filing
- --- ----------- ----------------
<S> <C> <C>
10-H Directors Retirement Plan, effective December Filed by reference to Exhibit 10-H to Registrant's
31, 1996 Form 10-Q for the quarter ended June 30, 1997
10-I Director Deferred Fee Plan Filed by reference to Exhibit B to Registrant's Proxy
Statement for its Annual Meeting on April 2, 1997
10-J(1) Employment Agreement between Registrant Filed with this Report
and Southwood J. Morcott, dated December 8,
1997
10-J(2) Employment Agreement between Registrant Filed with this Report
and Joseph M. Magliochetti, dated December 8,
1997
10-J(3) Employment Agreement between Registrant Filed with this Report
and Martin J. Strobel, dated December 8,
1997
10-J(4) Change of Control Agreement between Filed with this Report
Registrant and William J. Carroll, dated
December 8, 1997. There are substantially
similar agreements with Messrs. B.N. Cole,
C.J. Eterovic, M.A. Franklin, C.J. McNamara,
W.L Myers, R.C. Richter, E.J. Shultz, and J.S.
Simpson
10-J(5) Collateral Assignment Split-Dollar Insurance Filed by reference to Exhibit 10J(13) to Registrant's
Agreement for Universal Life Policies between Form 10-K for the year ended December 31, 1992
Registrant and Southwood J. Morcott, dated
April 18, 1989. There are substantially similar
agreements with Messrs. Magliochetti and Strobel.
10-K Supplemental Benefits Plan, effective January Filed by reference to Exhibit 10-K to Registrant's
1, 1996 Form 10-K for the year ended December 31, 1996
10-L(1) 1989 Restricted Stock Plan Filed by reference to Exhibit A of Registrant's Proxy
Statement for its Annual Meeting on April 5, 1989
10-L(2) First Amendment to 1989 Restricted Stock Filed by reference to Exhibit 10-L(2) to Registrant's
Plan, adopted December 10, 1990 Form 10-K for the year ended December 31, 1993
10-L(3) Second Amendment to 1989 Restricted Stock Filed by reference to Exhibit 10-L(3) to Registrant's
Plan, adopted October 18, 1993 Form 10-K for the year ended December 31, 1993
10-L(4) Third Amendment to 1989 Restricted Stock Filed by reference to Exhibit 10-L(4) to Registrant's
Plan, effective October 20, 1996 Form 10-K for the year ended December 31, 1996
10-L(5) Fourth Amendment to 1989 Restricted Stock Filed with this Report
Plan, effective July 21, 1997
10-M Directors' Stock Option Plan Filed by reference to Exhibit B to Registrant's Proxy
Statement for its Annual Meeting on April 7, 1993
10-M(1) First Amendment to Directors' Stock Option Filed by reference to Exhibit 10-M(1) to Registrant's
Plan, effective April 18, 1994 Form 10-K for the year ended December 31, 1995
</TABLE>
26
<PAGE> 27
<TABLE>
No. Description Method of Filing
- --- ----------- ----------------
<S> <C> <C>
10-M(2) Second Amendment to the Directors Stock Filed by reference to Exhibit 10-M(2) to Registrant's
Option Plan, effective October 20, 1996 Form 10-K for the year ended December 31, 1996
10-N Supplementary Bonus Plan, effective Filed by reference to Exhibit 10-N to Registrant's
December 12, 1994 Form 10-Q for the quarter ended June 30, 1995
13 The following sections of Registrant's 1997 Filed with this Report
Annual Report to Shareholders, located at
the pages indicated:
"Financial Results," "Financial Statements"
and "Independent Accountant's Report" at
pages 21-40
"Management's Discussion and Analysis of
Financial Condition and Results of Operations"
at pages 41-45 (excluding the charts on these
pages)
"Additional Information - Shareholders'
Investment" at page 50
"Unaudited Quarterly Financial Information"
at page 50
"Eleven Year History - Financial Highlights"
at page 51
21 List of Subsidiaries of Registrant Filed with this Report
23 Consent of Price Waterhouse LLP Filed with this Report
24 Power of Attorney Filed with this Report
27 Financial Data Schedule Filed with this Report
</TABLE>
Note: Exhibit Nos. 10-A through 10-N are exhibits required to be filed
- ---- pursuant to Item 14(c) of Form 10-K.
27
<PAGE> 28
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
DANA CORPORATION
----------------------------------
(Registrant)
Date: February 27, 1998 By: /s/ Martin J. Strobel
----------------------------- -----------------------------------
Martin J. Strobel, Vice President
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the date indicated.
Date: February 27, 1998 /s/ Southwood J. Morcott
----------------------------- -----------------------------------------
Southwood J. Morcott, Chairman of the
Board of Directors and Chief Executive
Officer
Date: February 27, 1998 /s/ John S. Simpson
----------------------------- -----------------------------------------
John S. Simpson, Chief Financial Officer
Date: February 27, 1998 */s/ Charles W. Hinde
----------------------------- -----------------------------------------
Charles W. Hinde, Chief Accounting Officer
Date: February 27, 1998 */s/ B.F. Bailar
----------------------------- -----------------------------------------
B.F. Bailar, Director
Date: February 27, 1998 */s/ E.M. Carpenter
----------------------------- ----------------------------------------
E.M. Carpenter, Director
Date: February 27, 1998 */s/ E. Clark
----------------------------- -----------------------------------------
E. Clark, Director
Date: February 27, 1998 */s/ G.H. Hiner
----------------------------- -----------------------------------------
G.H. Hiner, Director
Date: February 27, 1998 */s/ J.M. Magliochetti
----------------------------- -----------------------------------------
J.M. Magliochetti, Director
28
<PAGE> 29
SIGNATURES (Continued)
Date: February 27, 1998 */s/ M.R.Marks
----------------------------- -----------------------------------------
M.R. Marks, Director
Date: February 27, 1998 */s/ R.B. Priory
----------------------------- ----------------------------------------
R. B. Priory, Director
Date: February 27, 1998 */s/ J.D. Stevenson
----------------------------- -----------------------------------------
J.D. Stevenson, Director
Date: February 27, 1998 */s/ T.B. Sumner
----------------------------- -----------------------------------------
T.B. Sumner, Jr., Director
*By: /s/ Martin J. Strobel
--------------------------------------
Martin J. Strobel, Attorney-in-Fact
29
<PAGE> 1
Exhibit 10-E(2)
The following language was added to the end of Section 10(a) of Dana
Corporation 1997 Stock Option Plan ("Plan"), effective September 1, 1997:
"For purposes of the Plan, a transfer of an
Optionee's employment between the Company (or a
Subsidiary) and an affiliate of the Company in which
the Company owns between 1% and 50% of the voting
interest of the affiliate, or a situation where an
Optionee becomes immediately employed by such an
affiliate following his termination of employment
with the Company (or a Subsidiary), shall not be
deemed to be a termination of employment for
purposes of this Section 10(a)."
<PAGE> 1
EXHIBIT 10-J(1)
EMPLOYMENT AGREEMENT
BETWEEN
DANA CORPORATION
AND
SOUTHWOOD J. MORCOTT
DATED DECEMBER 8, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
Recitals....................................................................................................1
1. EMPLOYMENT AND TERM................................................................................1
2. POSITION AND DUTIES OF THE EXECUTIVE...............................................................2
(A)POSITION...............................................................................2
(B)DUTIES.................................................................................3
(C)LOCATION OF OFFICE.....................................................................3
3. COMPENSATION.......................................................................................4
(A)SALARY.................................................................................4
(B)ADDITIONAL COMPENSATION................................................................4
(C)INCENTIVE, STOCK AND SAVINGS PLANS.....................................................5
(D)RETIREMENT AND WELFARE BENEFIT PLANS...................................................5
(E)EXPENSES...............................................................................6
(F)FRINGE BENEFITS........................................................................6
(G)OFFICE AND SUPPORT STAFF...............................................................6
(H)VACATION AND OTHER ABSENCES............................................................6
(i)Benefits Shall Not Be Reduced Under Certain
Circumstances............................................................................7
(J)SUPPLEMENTAL RETIREMENT ANNUITY........................................................8
4. TERMINATION OF EMPLOYMENT.........................................................................11
(A)DEATH OR DISABILITY...................................................................11
(B)CAUSE.................................................................................12
(C)GOOD REASON...........................................................................13
(D)NOTICE OF TERMINATION.................................................................15
(E)DATE OF TERMINATION...................................................................15
5A OBLIGATIONS OF THE CORPORATION UPON TERMINATION...................................................15
(A)TERMINATION OTHER THAN FOR CAUSE......................................................15
(b)Termination On or After Change of Control.............................................18
(C)CAUSE; OTHER THAN FOR GOOD REASON.....................................................18
(D)DEATH OR DISABILITY...................................................................19
(E)RESOLUTION OF DISPUTES................................................................20
(i)Right of Election by Executive to Arbitrate or Sue...........................20
(II) THIRD-PARTY STAKEHOLDER....................................................20
(f) Benefits are in Addition to Supplemental
Retirement Annuity.......................................................................21
6A NON-EXCLUSIVITY OF RIGHTS.........................................................................21
7A FULL SETTLEMENT...................................................................................22
8A GOLDEN PARACHUTE TAX PAYMENTS.....................................................................22
9A CONFIDENTIAL INFORMATION..........................................................................24
10A COMPETITION.......................................................................................24
11A SUCCESSORS........................................................................................26
12A CERTAIN DEFINITIONS...............................................................................27
(A)BENEFICIARY...........................................................................27
(B)CHANGE OF CONTROL.....................................................................27
(C)CHANGE OF CONTROL DATE................................................................29
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
(D)CHANGE OF CONTROL PERIOD..............................................................29
13A AMENDMENT OR MODIFICATION; WAIVER................................................................29
14A MISCELLANEOUS.....................................................................................29
Exhibit A..................................................................................................34
</TABLE>
<PAGE> 4
DEFINED TERMS
-------------
<TABLE>
<CAPTION>
DEFINED TERMS* SECTION PAGE
- -------------- ------- ----
<S> <C> <C>
Accounting Firm 8(b) 23
Accrued Obligation 5(a)(i)(3) 16
ACP 3(b) 5
Affiliate 2(a) 3
Affiliated Company 3(a) 4
Agreement Introduction 1
Annual Base Salary 3(a) 4
Annual Bonus 3(b) 4
Beneficiary 12(a) 28
Board 3(a) 4
Cause 4(b) 12
Change of Control 12(b) 28
Change of Control Date 12(c) 30
Change of Control Period 12(d) 30
Code 5(a)(ii) 17
Competition 10(c) 26
Corporation Introduction 1
11(b) 27
14(e) 31
Date of Termination 4(e) 16
Disability 4(a)(ii) 12
Disability Effective Date 4(a)(ii) 12
Employment Period 1(a) 1
Excise Tax 8(a) 23
Executive Introduction 1
Gross-Up Payment 8(a) 23
</TABLE>
- --------
*Each listed term is intended to include both the singular and
plural form of the term.
<PAGE> 5
DEFINED TERMS
-------------
<TABLE>
<CAPTION>
DEFINED TERMS* SECTION PAGE
- -------------- ------- ----
<S> <C> <C>
Highest Average Monthly Compensation 3(j)(v) 11
Notice of Termination 4(d) 15
Other Benefits 5(a)(v) 19
Payment 8(a) 23
Pension and Retirement Program of the Corporation 3(j)(vi) 11
Renewal Date 1(c) 2
Service 3(j)(vii) 11
Subsidiary 2(a) 3
Target Annual Bonus 3(b) 5
Terminal Date 1(b) 1
Termination 5(a) 16
Termination Period 5(a)(ii) 17
Welfare Benefit Continuation 5(a)(iii) 18
</TABLE>
- --------
*Each listed term is intended to include both the singular and
plural form of the term. *Each listed term is intended to include both
the singular and plural form of the term.
*Each listed term is intended to include both the singular and
plural form of the term.
<PAGE> 6
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement")
made and entered into as of this 8th day of December, 1997, by and between DANA
CORPORATION, a Virginia corporation whose principal place of business is located
at 4500 Dorr Street, Toledo, Ohio (the "Corporation"), and Southwood J.
Morcott (the "Executive");
WHEREAS, the Executive is a principal executive officer of the
Corporation and an integral part of its management; and
WHEREAS, the Corporation wishes to assure itself of the
continuing services of the Executive and to assure the Executive of continued
employment during the period of employment hereunder; and
WHEREAS, the Executive is willing to commit himself to remain
in the employ of the Corporation during such period on terms and conditions
substantially similar to those on which other senior executive officers of the
Corporation are employed, and to forego opportunities elsewhere during such
period; and
WHEREAS, the parties have entered into an Agreement dated
December 14, 1992, as amended from time to time thereafter (the "Prior
Agreement"); and
WHEREAS, the parties wish to amend and restate the Prior
Agreement in its entirety;
NOW, THEREFORE, IN CONSIDERATION of the mutual promises,
covenants and agreements set forth below, it is hereby agreed as follows:
1. EMPLOYMENT AND TERM.
(a) The Corporation agrees to continue the employment of the
Executive, and the Executive agrees to remain in the employ of the Corporation,
in accordance with the terms and provisions of this Agreement, for the period
set forth below (the "Employment Period").
(b) The Employment Period under this Agreement shall commence
as of December 8, 1997, and, subject only to the provisions of Section 4 below
relating to termination of employment, shall continue until (i) the close of
business on December 31, 2000 or (ii) such later date as shall result from the
operation of subparagraph (c) below (the "Terminal Date").
(c) Commencing on December 31, 1998, and on each anniversary
of such date (such date and each such annual anniversary thereof, the "Renewal
Date") the Terminal Date set forth in subparagraph (b) above shall be extended
so as to occur
<PAGE> 7
three (3) years from the Renewal Date unless either party shall have given
notice to the other party that the Terminal Date is not to be extended or
further extended.
2. POSITION AND DUTIES OF THE EXECUTIVE.
(a) POSITION. It is contemplated that during the Change of
Control Period (as defined in Section 12(d), below), the Executive will continue
to serve as a principal officer of the Corporation and as a member of its Board
of Directors if serving as a member of the Board of Directors immediately prior
to the Change of Control Date, with the office(s) and title(s), reporting
responsibility, and duties and responsibilities of the Executive immediately
prior to the Change of Control Date. The Executive hereby agrees that at any
time prior to the Change of Control Date, the Board of Directors of the
Corporation (or the individual to whom the Executive reports) may, without the
Executive's consent, change the Executive's office(s), title(s), reporting
responsibility, and duties or responsibilities.
The office(s), title(s), reporting responsibility, duties and
responsibilities of the Executive on the date of this Agreement, as the same may
be changed from time to time after the date of this Agreement in accordance with
the provisions of the previous paragraph, shall be summarized in Exhibit A to
this Agreement, it being understood and agreed that if, as and when the
office(s), title(s), reporting responsibility, duties or responsibilities of the
Executive shall be so changed after the date of this Agreement, Exhibit A shall
be deemed to be, and shall be updated by the parties to reflect such change;
PROVIDED, HOWEVER, that Exhibit A is intended only as a memorandum for the
convenience of the parties and shall be disregarded if, and to the extent that,
Exhibit A shall fail to reflect accurately the office(s), title(s), reporting
responsibility, duties or responsibilities of the Executive as so changed after
the date of this Agreement because the parties shall have failed to update
Exhibit A as aforesaid.
At all times during the Change of Control Period, the
Executive shall hold a position of responsibility and importance and a position
of scope, with the functions, duties and responsibilities attached thereto, at
least equal in responsibility and importance and in scope to and commensurate
with his position described in general terms above in this Section 2(a) and
intended to be summarized in Exhibit A to this Agreement.
During the Employment Period the Executive shall, without
compensation other than that herein provided, also serve and continue to serve,
if and when elected and re-elected, as an officer or director, or both, of any
United States Subsidiary, division or Affiliate of the Corporation.
<PAGE> 8
For all purposes of this Agreement, (i) a Subsidiary shall
mean a corporation or other entity, of which 50% or more of the voting
securities or other equity interests is owned directly, or indirectly through
one or more intermediaries, by the Corporation, and (ii) an Affiliate shall mean
a corporation or other entity which is not a Subsidiary and which directly, or
indirectly, through one or more intermediaries, controls, or is controlled by,
or is under common control with, the Corporation. For the purpose of this
definition, the terms "control," "controls" and "controlled" mean the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a corporation or other entity, whether through
the ownership of voting securities, by contract, or otherwise.
(b) DUTIES. Throughout the Employment Period the Executive
shall devote his full time and undivided attention during normal business hours
to the business and affairs of the Corporation except for reasonable vacations
and except for illness or incapacity, but nothing in this Agreement shall
preclude the Executive from devoting reasonable periods required for:
(i) serving as a director or member of a committee or any
organization involving no conflict of interest with the interests of
the Corporation;
(ii) delivering lectures, fulfilling speaking engagements,
teaching at educational institutions;
(iii) engaging in charitable and community activities; and
(iv)..managing his personal investments;
provided that such activities do not materially interfere with the regular
performance of his duties and responsibilities under this Agreement.
(c) LOCATION OF OFFICE. During the Change of Control Period,
the office of the Executive shall be located at the principal offices of the
Corporation, within the greater Toledo, Ohio area, and the Executive shall not
be required to locate his office elsewhere without his prior written consent,
nor shall he be required to be absent therefrom on travel status or otherwise
more than thirty (30%) of the working days in any calendar year nor for more
than ten (10) consecutive days at any one time.
3. COMPENSATION.
<PAGE> 9
The Executive shall receive the following compensation for his
services:
(a) SALARY. So long as the Executive is employed by the
Corporation, he shall be paid an annual base salary, payable not less often than
monthly, at the rate of not less than $82,916.66 per month with such increases
as shall be awarded from time to time in accordance with the Corporation's
regular administrative practices of other salary increases applicable to
executives of the Corporation, subject to any and all required withholdings and
deductions for Social Security, income taxes and the like (the "Annual Base
Salary"). The Board of Directors of the Corporation (the "Board") may from time
to time direct such upward adjustments to Annual Base Salary as the Board deems
to be necessary or desirable; PROVIDED, HOWEVER, that during the Change of
Control Period (as defined in Section 12(d) below), the Annual Base Salary shall
be reviewed at least annually and shall be increased at any time and from time
to time but not less often than annually and shall be substantially consistent
with increases in base salary generally awarded in the ordinary course of
business to other senior executives of the Corporation and its Affiliated
Companies (a term which, as used in this Agreement, shall mean a Subsidiary or
Affiliate of the Corporation) and, in addition, shall be adjusted effective as
of January lst of each calendar year commencing in the Change of Control Period
to reflect increases in the cost of living during the preceding calendar year.
Annual Base Salary shall not be reduced after any increase thereof pursuant to
this Section 3(a). Any increase in Annual Base Salary shall not serve to limit
or reduce any other obligation of the Corporation under this Agreement.
(b) ADDITIONAL COMPENSATION. So long as the Executive is
employed by the Corporation, he shall be eligible to receive annual short-term
incentive awards or bonuses (such award or bonus is hereinafter referred to as
"Short-Term Award" or "Annual Bonus") from the Dana Corporation Additional
Compensation Plan, and from any successor or replacement plan (the Dana
Corporation Additional Compensation Plan and such successor or replacement plans
being referred to herein collectively as the "ACP"), in accordance with the
terms thereof; PROVIDED, HOWEVER, that, with respect to each fiscal year of the
Corporation ending during the Change of Control Period, the Executive shall be
awarded (whether under the terms of the ACP or otherwise) an Annual Bonus in an
amount that shall not be less than fifty percent (50%) of his Annual Base Salary
rate in effect on the last day of such fiscal year (which amount shall be
prorated if such fiscal year shall be less than 12 months) (the "Target Annual
Bonus"). Each Annual Bonus shall be paid no later than the end of the third
month of the fiscal year next following the fiscal year for which the Annual
Bonus is
<PAGE> 10
awarded, unless the receipt of such Annual Bonus is deferred in accordance with
the terms of the ACP.
(c) INCENTIVE, STOCK AND SAVINGS PLANS. So long as the
Executive is employed by the Corporation, he shall be and continue to be a full
participant in the Dana Corporation 1997 Stock Option Plan, the ACP (providing
for Short-Term Awards) and in any and all other incentive, stock, savings or
retirement plans, practices or policies in which executives of the Corporation
participate that are in effect on the date hereof and that may hereafter be
adopted, including, without limitation, any stock option, stock purchase or
stock appreciation plans, or any successor plans that may be adopted by the
Corporation with, except in the case of the ACP after the commencement of the
Change of Control Period, at least the same reward opportunities, if any, that
have heretofore been provided to the Executive. Nothing in this Agreement shall
preclude improvement of reward opportunities in such plans or other plans in
accordance with the practice of the Corporation on or after the date of this
Agreement. Any provision of the ACP or of this Agreement to the contrary
notwithstanding, any Short-Term Awards made to the Executive during the Change
of Control Period (whether for services rendered prior to or after the Change of
Control Date) shall be paid wholly in cash as soon as practicable after the
awards are made.
(d) RETIREMENT AND WELFARE BENEFIT PLANS. The Executive, his
dependents and Beneficiary, including, without limitation, any beneficiary of a
joint and survivor or other optional method of payment applicable to the payment
of benefits under the Pension and Retirement Program of the Corporation, as
defined in Section 3(j)(vi) below, shall be entitled to all payments and
benefits and service credit for benefits during the Employment Period to which
other senior executives of the Corporation, their dependents and their
beneficiaries are entitled under the terms of employee retirement and welfare
benefit plans and practices of the Corporation, including, without limitation,
the Pension and Retirement Program of the Corporation (as defined in Section
3(j)(vi) below), the Corporation's Savings and Investment Plan, its Stock
Purchase Plan, its Stock Award Plan, its Income Protection Plan for Management
and Certain Other Employees providing layoff and severance benefits, its 1989
Restricted Stock Plan, its Excess Benefits Plan, its Supplemental Benefits Plan,
its death benefit plans (consisting of its Group Insurance Plan for Management
Employees providing life insurance, accidental death and dismemberment
insurance, and travel accident insurance), its disability benefit plans
(consisting of its salary continuation, sickness and accident and long-term
disability benefits programs), its medical, dental and health and welfare plans
and other present or equivalent successor plans and practices of the
Corporation, its Subsidiaries and divisions, for active and
<PAGE> 11
retired employees, for which officers, their dependents and beneficiaries, are
eligible, and to all payments or other benefits under any such plan or practice
subsequent to the Employment Period as a result of participation in such plan or
practice during the Employment Period.
(e) EXPENSES. So long as the Executive is employed by the
Corporation, he shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by the Executive in accordance with the polices,
practices and procedures of the Corporation and its Affiliated Companies from
time to time in effect, commensurate with his position and on a basis at least
comparable to that of other senior executives of the Corporation.
(f) FRINGE BENEFITS. So long as the Executive is employed by
the Corporation, he shall be entitled to fringe benefits, including, without
limitation, the business and personal use of an automobile, and payment or
reimbursement of club initiation fees and dues, in accordance with the plans,
practices, programs and policies of the Corporation and its Affiliated Companies
from time to time in effect, commensurate with his position and at least
comparable to those received by other senior executives of the Corporation.
(g) OFFICE AND SUPPORT STAFF. So long as the Executive is
employed by the Corporation, he shall be entitled to an office or offices of a
size and with furnishings and other appointments, and to exclusive personal
secretarial and other assistance, commensurate with his position and at least
comparable to those received by other senior executives of the Corporation.
(h) VACATION AND OTHER ABSENCES. So long as the Executive is
employed by the Corporation, he shall be entitled to paid vacation and such
other paid absences whether for holidays, illness, personal time or any similar
purposes, in accordance with the plans, policies, programs and practices of the
Corporation and its Affiliated Companies in effect from time to time,
commensurate with his position and at least comparable to those received by
other senior executives of the Corporation.
(i) BENEFITS SHALL NOT BE REDUCED UNDER CERTAIN CIRCUMSTANCES.
Nothing in this Agreement shall preclude the Corporation from amending or
terminating any employee benefit or welfare plan or practice, but, it being the
intent of the parties that the Executive shall continue to be entitled during
the Employment Period to perquisites as set forth in this Section 3 and to
benefits and service credit for benefits under Section 3(d) above at least equal
to those attached to his position on February 13, 1984, the date of the original
agreement between the parties, and except as provided in the
<PAGE> 12
last sentence of this Section 3(i), nothing in this Agreement shall operate or
be construed to reduce, or authorize a reduction without the Executive's written
consent in, the level of such perquisites, benefits or service credit for
benefits; in the event of any such reduction, by amendment or termination of any
plan or practice or otherwise, the Executive, his dependents and Beneficiary,
shall continue to be entitled to perquisites, benefits and service credit for
benefits at least equal to the perquisites, benefits and service credit for
benefits under such plans or practices that he or his dependents and Beneficiary
would have received if such reduction had not taken place. If and to the extent
that such perquisites, benefits and service credits are not payable or provided
under any such plans or practices by reason of such amendment or termination
thereof, the Corporation itself shall pay or provide therefor. Notwithstanding
the foregoing provisions of this Section 3(i), the Executive hereby waives the
benefit of the foregoing minimum benefit protection only as it applies to the
Dana Corporation Savings and Investment Plan, and to its medical, dental and
health plans for active and retired employees. The Executive expressly does not
waive the application of the foregoing minimum benefit protection to any of the
other benefit plans, programs or practices enumerated in Section 3 above,
including, without limitation, the Pension and Retirement Program of the
Corporation (including the lump sum discount factor in effect on February 13,
1984), its death benefit plans, its disability benefit plans, and its Income
Protection Plan for Management and Certain Other Employees. The Executive
reserves the right to cancel the above waiver, prospectively, at any future time
by giving written notice to the Corporation of such cancellation. Nothing in
this Section 3(i) shall be construed to prohibit the Corporation from amending
or terminating any employee benefit or welfare plan or practice to reduce
benefits, so long as such reduction applies to all salaried Corporation
employees covered by such plan or practice equally and such reduction is adopted
prior to the commencement of the Change of Control Period.
(j) SUPPLEMENTAL RETIREMENT ANNUITY.
(i) If the Service of the Executive, including, without
limitation, the period set forth in Section 5(a)(iv)(2) below, relating
to the period between the Date of Termination and the end of the
Termination Period, shall terminate other than for death or Cause as
defined in Section 4(b) below, and if the Executive shall have a total
of not less than fifteen (15) years of Service, as defined in
subparagraph (vii) of this Section 3(j), whether or not consecutive,
the Executive, subject to compliance with the provisions of Sections 9
and 10 below, relating to confidential information and Competition,
respectively, shall be entitled to the supplemental retirement annuity
provided by this Section 3(j) in addition to all other
<PAGE> 13
benefits to which the Executive may be entitled including, without
limitation, benefits under the Pension and Retirement Program of the
Corporation. Notwithstanding the foregoing provisions of this
paragraph, the Executive shall not be entitled to receive the
supplemental retirement annuity provided by this Section 3(j) if his
Service shall terminate prior to his attainment of age 55 and prior to
the Change of Control Date.
Such supplemental retirement annuity shall be payable by the
Corporation on a straight life annuity basis commencing on the first day of the
month coinciding with or next following the latest of
(1) termination of Service;
(2) attainment by the Executive of age 55; and
(3) if the Executive had not previously retired with 15
years or more of Service, the expiration of the
Employment Period;
and continuing on the first day of each month thereafter during his lifetime.
(ii) The monthly payment provided for in Section 3(j)(i) above
shall be equal to fifty percent (50%) (or if higher, the percentage
which is the product of 1.6% multiplied by the Executive's Credited
Service at retirement, as such Credited Service is determined by
application of the definition of Credited Service under the Dana
Corporation Retirement Plan), of the Executive's Highest Average
Monthly Compensation, as defined in Section 3(j)(v), less the sum of
(1) commencing at the earliest date that it could be
payable on or after termination of Service, the
aggregate monthly retirement benefit payable to the
Executive for life on a straight life annuity basis
under the Pension and Retirement Program of the
Corporation to the extent attributable to
contributions of the Corporation, its Subsidiaries
and Affiliates;
(2) commencing at the earliest date that it could be
payable on or after termination of Service, the
aggregate monthly retirement or disability benefit
payable to the Executive for life on a straight life
annuity basis following his retirement from
employment by the Corporation, its Subsidiaries and
Affiliates, to the extent attributable to
contributions other than by the
<PAGE> 14
Executive under pension or retirement plans of all
corporations, organizations or entities other than
the Corporation, its Subsidiaries and Affiliates;
(3) commencing at the earliest date payable on or after
termination of Service, 50% of the monthly primary
Social Security benefit that would be or would have
been payable to the Executive in the absence of any
compensation that may at the time be or have been
earned by him; and
(4) commencing at the earliest date payable on or after
termination of Service and continuing until no longer
payable, the aggregate monthly disability benefit
payable to the Executive under disability benefit
plans and pension plans of the Corporation, its
Subsidiaries and Affiliates to the extent
attributable to contributions of the Corporation, its
Subsidiaries and Affiliates.
(iii) The Executive may elect to receive payment of the
supplemental retirement annuity provided by this Section 3(j), under a
joint and survivor or any other optional method of payment available
under the Dana Corporation Retirement Plan, including, without
limitation, any deferment in the time of payment thereof. The amount of
the benefit payable pursuant to any form of payment under this Section
3(j) shall be determined by applying the mortality assumptions,
interest rates, and other factors contained in the Dana Corporation
Retirement Plan that would be applicable to the form of payment elected
by the Executive (subject, however, to any actuarial factor that may
apply as a result of the operation of Section 3(i)); PROVIDED THAT, if
a lump sum distribution is made hereunder, the amount of the lump sum
distribution shall be actuarially equivalent to the monthly benefit
prescribed by Section 3(j)(ii), calculated using the basis described in
subparagraph (1) or (2), below, whichever produces the larger lump sum
amount:
(1) the lump sum amount calculated on the basis of the
"applicable interest rate" (as in effect for the
November preceding the calendar year in which the
calculation is made) and the "applicable mortality
table," both as defined in Section 417(e) of the
Internal Revenue Code; or
(2) the lump sum amount calculated on the basis of the
actuarial equivalent factor used to convert the
Executive's Earned Benefit Account into a
<PAGE> 15
life annuity under the Dana Corporation Retirement
Plan at the time the calculation is made, subject to
any lump sum discount factor that might apply as a
result of the operation of Section 3(i) of this
Agreement.
If it is determined that the Executive is subject to federal income
taxation on an amount in respect of the supplemental retirement annuity
prior to the distribution of all of such amount to him, the Corporation
shall forthwith pay to the Executive all (or the balance) of such
amount as is includable in the Executive's federal gross income and
correspondingly reduce future payments, if any, of the supplemental
retirement annuity.
(iv) In the event that the Corporation defaults in payment of
all or any part of the supplemental retirement annuity provided above
in this Section 3(j) and fails to remedy such default within thirty
days after having received notice from the Executive or his
Beneficiary, the Corporation shall thereupon pay to the Executive or
his Beneficiary, as the case may be, in full discharge of its
obligations under this Section 3(j), (1) a lump sum amount actuarially
equivalent (based on the same assumptions and discount factors as would
be applicable under the Dana Corporation Retirement Plan) to the future
payments otherwise payable under this Section 3(j), and (2) an amount
equal to any and all past due payments under this Section 3(j).
(v) The term "Highest Average Monthly Compensation" shall mean
the sum of (1) one-twelfth (1/12) of the Annual Base Salary provided in
Section 3(a) at the rate being paid at the time the Executive's
termination of employment occurred, and (2) one-twelfth (1/12) of the
average of the highest Annual Bonuses payable to the Executive for any
three (3) consecutive full or partial fiscal years during his
employment by the Corporation, PROVIDED, HOWEVER, that with respect to
1994 and subsequent years' Annual Bonuses, only that portion of the
Employee's Annual Bonus as does not exceed 125% of his Annual Base
Salary will be considered.
(vi) The term "Pension and Retirement Program of the
Corporation" shall mean the Dana Corporation Retirement Plan, the Dana
Corporation Excess Benefits Plan, the Dana Corporation Supplemental
Benefits Plan, and any other supplemental, early retirement and similar
plan or plans of the Corporation, its Subsidiaries and Affiliates,
providing for pension or retirement benefits that may be applicable to
the Executive and that are in effect on the date hereof or may
hereafter be adopted or substituted for
<PAGE> 16
any such plan, but exclusive of the Dana Corporation Savings and
Investment Plan and any similar plan or plans.
(vii) The term "Service" shall mean employment as an employee
by the Corporation, any Subsidiary or Affiliate thereof or any
corporation the capital stock or assets of which have been acquired by,
or which has been merged into or consolidated with the Corporation or
any Subsidiary or Affiliate thereof.
4. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY.
(i) The Executive's employment shall terminate automatically
upon the Executive's death during the Employment Period.
(ii) If the Corporation determines in good faith that the
Disability (as defined below) of the Executive has occurred during the
Employment Period, it may give to the Executive written notice in
accordance with Section 14(b) below of its intention to terminate the
Executive's employment. In such event, the Employment Period shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), PROVIDED, that within the
30 days after such receipt, the Executive shall not have returned to
full-time performance of the Executive's duties. For purposes of this
Agreement, "Disability" shall mean the absence of the Executive from
the Executive's duties with the Corporation on a full-time basis for
180 consecutive business days as a result of incapacity due to mental
or physical illness which is determined to be total and permanent by a
physician selected by the Corporation or its insurers and acceptable to
the Executive or the Executive's legal representative (such agreement
as to acceptability not to be withheld unreasonably).
(b) CAUSE. The Corporation may terminate the Executive's
employment during the Employment Period for Cause. For purposes of this
Agreement, the termination of the Executive's employment shall be deemed to have
been for "Cause" only
(i) if termination of his employment shall have been the
result of his conviction of, or plea of guilty or nolo contendere to,
the charge of having committed a felony (whether or not such conviction
is later reversed for any reason), or
(ii) if there has been a breach by the Executive during the
Employment Period of the provisions of
<PAGE> 17
Section 2(b), relating to the time to be devoted to the affairs of the
Corporation, or of Section 9, relating to confidential information, and
such breach results in demonstrably material injury to the Corporation,
and, with respect to any alleged breach of Section 2(b) hereof, the
Executive shall have either failed to remedy such alleged breach within
thirty days from his receipt of written notice from the Secretary of
the Corporation pursuant to resolution duly adopted by the Board of
Directors of the Corporation after notice to the Executive and an
opportunity to be heard demanding that he remedy such alleged breach,
or shall have failed to take all reasonable steps to that end during
such thirty-day period and thereafter; PROVIDED, that there shall have
been delivered to the Executive a certified copy of a resolution of the
Board of Directors of the Corporation adopted by the affirmative vote
of not less than three-fourths of the entire membership of the Board of
Directors called and held for that purpose and at which the Executive
was given an opportunity to be heard, finding that the Executive was
guilty of conduct set forth in subparagraph (i) or (ii) above,
specifying the particulars thereof in detail.
Anything in this Section 4(b) or elsewhere in this Agreement
to the contrary notwithstanding, the employment of the Executive shall in no
event be considered to have been terminated by the Corporation for Cause if
termination of his employment took place
(1) as the result of bad judgment or negligence on the
part of the Executive, or
(2) because of an act or omission believed by the
Executive in good faith to have been in or not
opposed to the interests of the Corporation, or
(3) for any act or omission in respect of which a
determination could properly be made that the
Executive met the applicable standard of conduct
prescribed for indemnification or reimbursement or
payment of expenses under (A) the Bylaws of the
Corporation, or (B) the laws of the State of
Virginia, or (C) the directors' and officers'
liability insurance of the Corporation, in each case
either as in effect at the time of this Agreement or
in effect at the time of such act or omission, or
(4) as the result of an act or omission which occurred
more than twelve calendar months prior to the
Executive's having been given notice of the
termination of his employment for such act or
<PAGE> 18
omission unless the commission of such act or such
omission could not at the time of such commission or
omission have been known to a member of the Board of
Directors of the Corporation (other than the
Executive, if he is then a member of the Board of
Directors), in which case more than twelve calendar
months from the date that the commission of such act
or such omission was or could reasonably have been so
known, or
(5) as the result of a continuing course of action which
commenced and was or could reasonably have been known
to a member of the Board of Directors of the
Corporation (other than the Executive, if he is then
a member of the Board of Directors) more than twelve
calendar months prior to notice having been given to
the Executive of the termination of his employment.
(c) GOOD REASON. Following a Change of Control (as defined in
Section 12(b) below), the Executive may terminate his employment for Good
Reason. For purposes of this Agreement, "Good Reason" shall mean the occurrence
after the Change of Control Date of any of the following events:
(i) Failure to elect or reelect the Executive to the Board of
Directors of the Corporation, if the Executive shall have been a member
of the Board of Directors on the date of this Agreement or at any time
thereafter during the Employment Period, or failure to elect or reelect
the Executive to, or removal of the Executive from, the office(s)
described in Section 2(a) above and intended to be summarized in
Exhibit A to this Agreement.
(ii) A significant change in the nature or scope of the
authorities, powers, functions or duties attached to the position
described in Section 2 above and intended to be summarized in Exhibit A
to this Agreement, or a reduction in compensation, which is not
remedied within 30 days after receipt by the Corporation of written
notice from the Executive.
(iii) A determination by the Executive made in good faith that
as a result of a Change of Control, and a change in circumstances
thereafter and since the date of this Agreement significantly affecting
his position, he is unable to carry out the authorities, powers,
functions or duties attached to his position and contemplated by
Section 2 of this Agreement and the situation is not remedied within 30
days after receipt by the Corporation of written notice from the
Executive of such determination.
<PAGE> 19
(iv) A breach by the Corporation of any provision of this
Agreement not embraced within the foregoing clauses (i), (ii) and (iii)
of this Section 4(c) which is not remedied within 30 days after receipt
by the Corporation of written notice from the Executive.
(v) The liquidation, dissolution, consolidation or merger of
the Corporation or transfer of all or a significant portion of its
assets unless a successor or successors (by merger, consolidation or
otherwise) to which all or a significant portion of its assets have
been transferred shall have assumed all duties and obligations of the
Corporation under this Agreement but without releasing the corporation
that is the original party to this Agreement;
PROVIDED, that in any event set forth in this Section 4(c), the Executive shall
have elected to terminate his employment under this Agreement, upon not less
than ten and not more than ninety days' advance written notice to the
Corporation, attention of the Secretary, given, except in the case of a
continuing breach, within three calendar months after (A) failure to be so
elected or reelected, or removal, (B) expiration of the thirty-day cure period
with respect to such event, or (C) the closing date of such liquidation,
dissolution, consolidation, merger or transfer of assets, as the case may be.
An election by the Executive to terminate his employment given
under the provisions of this Section 4(c) shall not be deemed a voluntary
termination of employment by the Executive for the purpose of this Agreement or
any plan or practice of the Corporation.
(d) NOTICE OF TERMINATION. Any termination by the Corporation
for Cause, or by the Executive for Good Reason, shall be communicated by Notice
of Termination to the other party hereto given in accordance with Section 14(b)
below. For purposes of this Agreement, a "Notice of Termination" means a written
notice which
(i) indicates the specific termination provision in this
Agreement relied upon,
(ii) to the extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination
of the Executive's employment under the provision so indicated and
(iii) if the Date of Termination (as defined in Section 4(e)
below) is other than the date of receipt of such notice, specifies the
termination date (which date shall be not more than fifteen days after
the giving of such notice).
<PAGE> 20
(e) DATE OF TERMINATION. "Date of Termination" means
(i) if the Executive's employment is terminated by the
Corporation for Cause, or by the Executive for Good Reason, the date of
receipt of the Notice of Termination or any later date specified
therein, as the case may be,
(ii) if the Executive's employment is terminated by the
Corporation other than for Cause or Disability, the Date of Termination
shall be the date on which the Corporation notifies the Executive of
such termination and
(iii) if the Executive's employment is terminated by
reason of death or Disability, the Date of Termination shall be the
date of death of the Executive or the Disability Effective Date, as the
case may be.
5 OBLIGATIONS OF THE CORPORATION UPON TERMINATION.
(a) TERMINATION OTHER THAN FOR CAUSE. If, during the
Employment Period, the Corporation shall terminate the Executive's employment
other than for Cause or the Executive shall terminate his employment following a
Change of Control for Good Reason (termination in any such case referred to as
"Termination"):
(i) the Corporation shall pay the Executive in a lump sum in
cash within 30 days after the Date of Termination the sum of
(1) the Executive's Annual Base Salary through the Date
of Termination to the extent not theretofore paid,
(2) the product of (x) the Target Annual Bonus and (y) a
fraction, the numerator of which is the number of
days in the current fiscal year through the Date of
Termination, and the denominator of which is 365, and
(3) any compensation previously deferred by the Executive
(together with any accrued interest or earnings
thereon) and any accrued vacation pay, in each case
to the extent not theretofore paid (the sum of the
amounts described in clauses (1), (2), and (3) shall
be hereinafter referred to as the "Accrued
Obligations"); and
(ii) at the end of the month next following the
Termination, and at the end of each month thereafter until the earliest
of the end of the Employment Period, three
<PAGE> 21
years following the Date of Termination, or until the Executive shall
attain the age of 65 years, but in no event beyond the end of the month
in which the death of the Executive shall have occurred or the end of
the sixth month following the Disability Effective Date (such period to
be called the "Termination Period"), the Corporation shall pay to the
Executive an amount equal to the Highest Average Monthly Compensation;
PROVIDED, HOWEVER, that such amount shall be reduced by any other
amounts payable to the Executive in respect of salary or bonus
continuation to be received by the Executive under any severance plan,
policy or arrangement of the Corporation; and, PROVIDED, FURTHER, that
if the Date of Termination occurs on or after the occurrence of a
Change of Control, such amount shall be paid as a lump-sum within 30
days following the Date of Termination, such lump-sum calculated based
upon the present value (within the meaning of Section 28OG(d)(4) of the
Internal Revenue Code of 1986 as amended (the "Code")) of the payments
which would be made absent the Change of Control; and
(iii) During the Termination Period, or such longer period as
any plan, program, practice or policy may provide, the Corporation
shall continue benefits to the Executive and/or the Executive's family
at least equal to those which would have been provided to them in
accordance with the plans, programs, practices and policies described
in Section 3(d) above if the Executive's employment had not been
terminated in accordance with the most favorable plans, practices,
programs or policies of the Corporation and its Affiliated Companies as
in effect and applicable generally to other senior executives of the
Corporation and its Affiliated Companies and their families during the
90-day period immediately preceding the Date of Termination or, if more
favorable to the Executive, as in effect at any time thereafter or, if
more favorable to the Executive, as in effect generally at any time
thereafter with respect to other senior executives of the Corporation
and its Affiliated Companies and their families, PROVIDED, HOWEVER,
that if the Executive becomes reemployed with another employer and is
eligible to receive medical or other welfare benefits under another
employer-provided plan, the medical and other welfare benefits
described herein shall be secondary to those provided under such other
plan during such applicable period of eligibility (such continuation of
such benefits for the applicable period herein set forth shall be
hereinafter referred to as "Welfare Benefit Continuation"). For
purposes of determining eligibility of the Executive for retiree
benefits pursuant to such plans, practices, programs and policies, the
Executive shall be considered to have remained employed until the end
of the Termination Period and to have retired on the date of the
<PAGE> 22
end of the Termination Period. To the extent that any benefits referred
to in this Section 5(a)(iii) shall not be payable or provided under any
such plan by reason of the Executive's no longer being an employee of
the Corporation as the result of Termination, the Corporation shall
itself pay, or provide for payment of, such benefits and the service
credit for benefits provided for in Section 5(a)(iv) below, to the
Executive, his dependents and Beneficiary; and
(iv) The period from the Date of Termination until the end of
the Termination Period shall be considered:
(1) Service with the Corporation for the purpose of
continued credits under the employee benefit plans
referred to in Section 3(d) above and all other
benefit plans of the Corporation applicable to the
Executive or his Beneficiary as in effect immediately
prior to Termination but prior to any reduction of
benefits thereunder as the result of amendment or
termination during the Employment Period;
(2) Service within the meaning of Section 3(j) (vii)
above for purposes of Section 3(j) above; and
(3) Employment with the Corporation for purposes of
determining payments and other rights in respect of
awards made or accrued and award opportunities
granted prior to Termination under the executive
incentive plans referred to in Section 3(c) above and
all other incentive plans of the Corporation in which
the Executive was a participant prior to Termination;
and
(v) to the extent not theretofore paid or provided, the
Corporation shall timely pay or provide to the Executive and/or the
Executive's family any other amounts or benefits required to be paid or
provided or which the Executive and/or the Executive's family is
eligible to receive pursuant to this Agreement and under any plan,
program, policy or practice or contract or agreement of the Corporation
and its Affiliated Companies as in effect and applicable generally to
other senior executives of the Corporation and its Affiliated Companies
and their families during the 90-day period immediately preceding the
Date of Termination or, if more favorable to the Executive, as in
effect generally thereafter with respect to other senior executives of
the Corporation and its Affiliated Companies and their families (such
other
<PAGE> 23
amounts and benefits shall be referred to below as the "Other
Benefits").
(b) TERMINATION ON OR AFTER CHANGE OF CONTROL. If Termination
shall have occurred coincidental with a Change of Control or during the Change
of Control Period, any provision of Section 5(a)(iv) above or of the ACP to the
contrary notwithstanding, upon such Termination, the Corporation shall pay or
distribute to the Executive on an accelerated basis, to the extent, if any, not
theretofore accelerated, any and all outstanding Short-Term Awards, or
installments thereof, under the ACP that shall have been awarded to the
Executive prior to Termination and deferred for payment subsequent to
termination of employment, with any such accelerated payment based on the value,
determined in accordance with such plan (or successor plan), of such awards or
installments (and any increments thereon) on the Termination Date, and such
accelerated payment or distribution shall constitute a complete discharge of the
Corporation's obligation in respect of the Short-Term Awards so paid or
distributed.
(c) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's
employment shall be terminated for Cause during the Employment Period, the
Corporation shall have no further obligations to the Executive under this
Agreement other than the obligation to pay the Executive's Annual Base Salary,
any compensation previously deferred by the Executive (together with any
accrued interest or earnings thereon), and accrued vacation pay through the
Date of Termination, in each case to the extent not theretofore paid, and any
other amounts or benefits to which the Executive and/or the Executive's family
is otherwise entitled under the terms of any employee benefit or incentive plan
of the Corporation. If the Executive terminates employment during the
Employment Period, excluding a termination for Good Reason following a Change
of Control, the Corporation shall have no further obligations to the Executive,
other than to pay the Executive's Annual Base Salary, any compensation
previously deferred by the Executive (together with any accrued interest or
earnings thereon), and accrued vacation pay through the termination date, in
each case to the extent not theretofore paid, any other benefits to which the
Executive and/or the Executive's family is otherwise entitled under the terms
of any employee benefit or incentive plan of the Corporation, and, if the
Executive is otherwise eligible under the provisions of Section 3(j) of this
Agreement, he shall also be entitled to receive the supplemental retirement
annuity described in such Section 3(j).
(d) DEATH OR DISABILITY.
(i) In the event of the death of the Executive during the
Employment Period, the legal representative of
<PAGE> 24
the Executive shall be entitled to the compensation provided for in
Sections 3(a) and 3(b) above for the month in which death shall have
taken place, at the rate being paid at the time of death, and the
Employment Period shall be deemed to have ended as of the close of
business on the last day of the month in which death shall have
occurred but without prejudice to any payments due in respect of the
Executive's death.
(ii) In the event of the Disability of the Executive during
the Employment Period, the Executive shall be entitled to the
compensation provided for in Sections 3(a) and 3(b) above, at the rate
being paid on the Disability Effective Date, for the period of such
Disability but not in excess of six months. The amount of any payments
due under this Section 5(d)(ii) shall be reduced by any payments to
which the Executive may be entitled for the same period because of
disability under any disability or pension plan of the Corporation or
of any Subsidiary or Affiliate thereof.
(e) RESOLUTION OF DISPUTES.
(i) RIGHT OF ELECTION BY EXECUTIVE TO ARBITRATE OR SUE. In the
event that the Executive's employment shall be terminated by the
Corporation during the Employment Period and such termination is
alleged to be for Cause, or the Executive's right to terminate his
employment under Section 4(c) above shall be questioned by the
Corporation, or the Corporation shall withhold payments or provision of
benefits for any other reason, the Executive shall have the right, in
addition to all other rights and remedies provided by law, at his
election either to seek arbitration within the Toledo, Ohio area under
the rules of the American Arbitration Association by serving a notice
to arbitrate upon the Corporation or to institute a judicial
proceeding, in either case within ninety days after having received
notice of termination of his employment or notice in any form that the
termination of his employment under Section 4(b) above is subject to
question or that the Corporation is withholding or proposes to withhold
payments or provision of benefits.
(ii) THIRD-PARTY STAKEHOLDER. In the event that the
Corporation defaults on any obligation set forth in Section 5(a) above,
relating to Termination, and shall have failed to remedy such default
within thirty (30) days after having received written notice of such
default from the Executive, in addition to all other rights and
remedies that the Executive may have as a result of such default, the
Executive may demand and the Corporation shall thereupon be required to
deposit, with the third-party
<PAGE> 25
stakeholder hereinafter described, an amount equal to the undiscounted
value of any and all undischarged, future obligations of the
Corporation under Section 5(a) above and such amount shall thereafter
be held, paid, applied or distributed by such third-party stakeholder
for the purpose of satisfying such undischarged, future obligations of
the Corporation when and to the extent that they become due and
payable. Any interest or other income on such amount shall be retained
by the third-party stakeholder and applied, if necessary, by it to
satisfy such obligations, PROVIDED, HOWEVER, that any interest or other
income that is earned on such undischarged, future obligations after
the date that the third-party stakeholder determines, in its sole
discretion, that such obligations are due and owing to the Executive,
shall be paid to the Executive as earned. To the extent not theretofore
expended, such amount (including any remaining unexpended interest or
other income) shall be repaid to the Corporation at such time as the
third-party stakeholder, in its sole discretion, reasonably exercised,
determines, upon the advice of counsel and after consultation with the
Corporation and the Executive or, in the event of his death, his
Beneficiary, that all obligations of the Corporation under Section 5(a)
above have been substantially satisfied.
Such amount shall, in the event of any question, be determined
jointly by the firm of certified public accountants regularly employed
by the Corporation and a firm of certified public accountants selected
by the Executive, in each case upon the advice of actuaries to the
extent the certified public accountants consider necessary, and, in the
event such two firms of accountants are unable to agree on a resolution
of the question, such amount shall be determined by an independent firm
of certified public accountants selected jointly by both firms of
accountants.
The third-party stakeholder, the fees and expenses of which
shall be paid by the Corporation, shall be a national or state bank or
trust company having a combined capital, surplus and undivided profits
and reserves of not less than Ten Million Dollars ($10,000,000) which
is duly authorized and qualified to do business in the state in which
the Executive resides at the time of such default.
(f) BENEFITS ARE IN ADDITION TO SUPPLEMENTAL RETIREMENT
ANNUITY. Any provision of this Agreement to the contrary notwithstanding, the
payments, benefits, service credit for benefits and other matters provided by
this Section 5, including without limitation Section 5(a) above, in the event of
a Termination, are in addition to any payments, benefits, service credit for
benefits and other matters provided by Section 3(j)
<PAGE> 26
above relating to a supplemental retirement annuity that may apply in such
event.
6 NON-EXCLUSIVITY OF RIGHTS.
Except as provided in Sections 5(a)(ii), 5(b) and 5(c) above,
nothing in this Agreement shall prevent or limit the Executive's continuing or
future participation in any plan, program, policy or practice provided by the
Corporation or any of its Affiliated Companies and for which the Executive may
qualify, nor shall anything herein limit or otherwise affect such rights as the
Executive may have under any contract or agreement entered into after the date
hereof with the Corporation or any of its Affiliated Companies. Amounts which
are vested benefits or which the Executive is otherwise entitled to receive
under any plan, policy, practice or program of, or any contract or agreement
entered into after the date hereof with, the Corporation or any of its
Affiliated Companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement.
7 FULL SETTLEMENT.
The Corporation's obligation to make the payments provided for
in this Agreement and otherwise to perform its obligations hereunder shall not
be affected by any set-off, counterclaim, recoupment, defense or other claim,
right or action which the Corporation may have against the Executive or others.
In no event shall the Executive be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to the Executive
under any of the provisions of this Agreement and, except as provided in Section
5(a)(iii) above, such amounts shall not be reduced whether or not the Executive
obtains other employment.
8 GOLDEN PARACHUTE TAX PAYMENTS.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution involving a change of control of the Corporation, by the
Corporation or any other person or entity, to or for the benefit of the
Executive (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 8) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Code (or any successor
provision) or any interest or penalties are incurred by the Executive with
respect to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
the Executive shall be entitled to receive
<PAGE> 27
an additional payment (a "Gross-Up Payment") from the Corporation in an amount
such that, after payment by the Executive of all taxes (including any interest
or penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.
(b) All calculations and determinations required to be made
under this Section 8, including whether and when a Gross-Up Payment is required
and the amount of such Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by Price Waterhouse (or any
successor thereto by merger or operation of law) (the "Accounting Firm"). In the
event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the change of control, the Executive shall
appoint another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Corporation. Any Gross-Up Payment, as determined pursuant
to this Section 8, shall be paid by the Corporation to the Executive within five
days of the receipt of the Accounting Firm's determination. If the Accounting
Firm determines that no Excise Tax is payable by the Executive, it shall furnish
the Executive with a written opinion that failure to report the Excise Tax on
the Executive's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon the Corporation and the Executive.
(c) The Executive shall promptly notify the Corporation in
writing of any claim by the Internal Revenue Service that, if successful, would
require the payment by the Corporation of the Gross-Up Payment.
The Corporation shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such claim and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 8(c), the Corporation shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and sue for a refund or to contest
the claim in any
<PAGE> 28
permissible manner, and the Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Corporation shall
determine; PROVIDED, HOWEVER, that if the Corporation directs the Executive to
pay such claim and sue for a refund, the Corporation shall advance the amount of
such payment to the Executive, on an interest-free basis and shall indemnify and
hold the Executive harmless, on an after-tax basis, from any Excise Tax or
income tax (including interest or penalties with respect thereto) imposed with
respect to such advance or with respect to any imputed income with respect to
such advance. Furthermore, the Corporation's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and the Executive shall be entitled to settle or contest, as the case
may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
9 CONFIDENTIAL INFORMATION.
(a) The Executive agrees not to disclose, either while in the
Corporation's employ or at any time thereafter, to any person not employed by
the Corporation, or not engaged to render services to the Corporation, except
with the prior written consent of an officer authorized to act in the matter by
the Board of Directors of the Corporation, any confidential information obtained
by him while in the employ of the Corporation, including, without limitation,
information relating to any of the Corporation's inventions, processes,
formulae, plans, devices, compilations of information, methods of distribution,
customers, client relationships, marketing strategies or trade secrets;
PROVIDED, HOWEVER, that this provision shall not preclude the 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
Corporation or from disclosure required by law or Court order. The agreement
herein made in this Section 9(a) shall be in addition to, and not in limitation
or derogation of, any obligations otherwise imposed by law upon the Executive in
respect of confidential information and trade secrets of the Corporation, its
Subsidiaries and Affiliates.
(b) The Executive also agrees that upon leaving the
Corporation's employ he will not take with him, without the prior written
consent of an officer authorized to act in the matter by the Board of Directors
of the Corporation, and he will surrender to the Corporation any record, list,
drawing, blueprint, specification or other document or property of the
Corporation, its Subsidiaries and Affiliates, together with any copy and
reproduction thereof, mechanical or otherwise, which is of a confidential nature
relating to the Corporation, its Subsidiaries and Affiliates, or, without
limitation, relating to
<PAGE> 29
its or their methods of distribution, client relationships, marketing strategies
or any description of any formulae or secret processes, or which was obtained by
him or entrusted to him during the course of his employment with the
Corporation.
10 COMPETITION.
(a) Subject to the provisions of Section 5(e) above relating
to resolution of disputes, there shall be no obligation on the part of the
Corporation to make any further payments provided for in Section 3(j) above
relating to payment of a supplemental retirement annuity, if the Executive
shall, during the period that such payments are being made or benefits provided,
engage in Competition with the Corporation as hereinafter defined, provided all
of the following shall have taken place:
(i) the Secretary of the Corporation, pursuant to resolution
of the Board of Directors of the Corporation, shall have given written
notice to the Executive that, in the opinion of the Board of Directors,
the Executive is engaged in such Competition, specifying the details;
(ii) the Executive shall have been given a reasonable
opportunity upon reasonable notice to appear before and to be heard by
the Board of Directors prior to the determination of the Board
evidenced by such resolution;
(iii) the Executive shall neither have ceased to engage in
such Competition within thirty days from his receipt of such notice nor
diligently taken all reasonable steps to that end during such
thirty-day period and thereafter.
Notwithstanding any provision to the contrary contained
herein, in the event of a Termination, as defined in Section 5(a) above, this
Section 10(a) shall not apply following a Change of Control.
(b) The Executive agrees in addition to the provisions
relating to Competition set forth in Section 10(a) above that he will not engage
in Competition at any time (i) during the Employment Period, and (ii) except in
the event of a Termination, during the thirty-six (36) months immediately
following the termination of his employment with the Corporation.
(c) The word "Competition" for the purposes of this Agreement
shall mean
<PAGE> 30
(i) taking a management position with or control of a business
engaged in the design, development, manufacture, marketing or
distribution of products, which constituted 15% or more of the sales of
the Corporation and its Subsidiaries and Affiliates during the last
fiscal year of the Corporation preceding the termination of the
Executive's employment, in any geographical area in which the
Corporation, its Subsidiaries or Affiliates is at the time engaging in
the design, development, manufacture, marketing or distribution of such
products; PROVIDED, HOWEVER, that in no event shall ownership of less
than 5% of the outstanding capital stock entitled to vote for the
election of directors of a corporation with a class of equity
securities held of record by more than 500 persons, standing alone, be
deemed Competition with the Corporation within the meaning of this
Section 10,
(ii) soliciting any person who is a customer of the businesses
conducted by the Corporation, or any business in which the Executive
has been engaged on behalf of the Corporation and its Subsidiaries or
Affiliates at any time during the term of this Agreement on behalf of a
business described in clause (i) of this Section 10,
(iii) inducing or attempting to persuade any employee of the
Corporation or any of its Subsidiaries or Affiliates to terminate his
employment relationship in order to enter into employment with a
business described in clause (i) of this Subsection 10(c), or
(iv) making or publishing any statement which is, or may
reasonably be considered to be, disparaging of the Corporation or any
of its Subsidiaries or Affiliates, or directors, officers, employees or
the operations or products of the Corporation or any of its
Subsidiaries or Affiliates, except to the extent the Executive, during
the Employment Period, makes the statement to employees or other
representatives of the Corporation or any of its Subsidiaries or
Affiliates in furtherance of the Corporation's business and the
performance of his services hereunder.
11 SUCCESSORS.
Except as otherwise provided herein,
(a) This Agreement shall be binding upon and shall inure to
the benefit of the Executive, his heirs and legal representatives, and the
Corporation and its successors as provided in this Section 11.
<PAGE> 31
(b) This Agreement shall be binding upon and inure to the
benefit of the Corporation and any successor of the Corporation, including,
without limitation, any corporation or corporations acquiring, directly or
indirectly, 50% or more of the outstanding securities of the Corporation, or all
or substantially all of the assets of the Corporation, whether by merger,
consolidation, sale or otherwise (and such successor shall thereafter be deemed
embraced within the term "the Corporation" for the purposes of this Agreement),
but shall not otherwise be assignable by the Corporation.
12 CERTAIN DEFINITIONS.
The following defined terms used in this Agreement shall have
the meanings indicated:
(a) BENEFICIARY. The term "Beneficiary" as used in this
Agreement shall, in the event of the death of the Executive, mean an individual
or individuals and/or an entity or entities, including, without limitation, the
Executive's estate, duly designated on a form filed with the Corporation by the
Executive to receive any amount that may be payable after his death or, if no
such individual, individuals, entity or entities has or have been so designated,
or is at the time in existence or able to receive any such amount, the
Executive's estate.
(b) CHANGE OF CONTROL. A "Change of Control" shall be deemed
to have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
(i) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Corporation (not including in the
securities Beneficially Owned by such Person any securities acquired
directly from the Corporation or its Affiliates) representing 20% or
more of the combined voting power of the Corporation's then outstanding
securities, excluding any Person who becomes such a Beneficial Owner in
connection with a transaction described in clause (1) of paragraph
(iii) below; or
(ii) the following individuals cease for any reason to
constitute a majority of the number of directors then serving:
individuals who, on the date hereof, constitute the Board and any new
director whose appointment or election by the Board or nomination for
election by the Corporation's stockholders was approved or recommended
by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors on the date hereof or whose
appointment, election or nomination for election was previously so
approved or recommended. For
<PAGE> 32
purposes of the preceding sentence, any director whose initial
assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation,
relating to the election of directors of the Corporation, shall not be
counted; or
(iii) there is consummated a merger or consolidation of the
Corporation or any direct or indirect Subsidiary of the Corporation
with any other corporation, other than (1) a merger or consolidation
which would result in the voting securities of the Corporation
outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or any parent
thereof) at least 50% of the combined voting power of the securities of
the Corporation or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation, or (2) a
merger or consolidation effected to implement a recapitalization of the
Corporation (or similar transaction) in which no Person is or becomes
the Beneficial Owner, directly or indirectly, of securities of the
Corporation (not including in the securities Beneficially Owned by such
Person any securities acquired directly from the Corporation or its
Affiliates) representing 20% or more of the combined voting power of
the Corporation's then outstanding securities; or
(iv) the stockholders of the Corporation approve a plan of
complete liquidation or dissolution of the Corporation or there is
consummated an agreement for the sale or disposition by the Corporation
of all or substantially all of the Corporation's assets, other than a
sale or disposition by the Corporation of all or substantially all of
the Corporation's assets to an entity, at least 50% of the combined
voting power of the voting securities of which are owned by
stockholders of the Corporation in substantially the same proportions
as their ownership of the Corporation immediately prior to such sale.
"Beneficial Owner" shall have the meaning set forth in Rule 13d-3 under the
Exchange Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from
time to time.
"Person" shall have the meaning given in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d) and 14(d)
<PAGE> 33
thereof, except that such term shall not include (i) the Corporation or any of
its Subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Corporation or any of its Affiliates, (iii) an
underwriter temporarily holding securities pursuant to an offering of such
securities or (iv) a corporation owned, directly or indirectly, by the
stockholders of the Corporation in substantially the same proportions as their
ownership of stock of the Corporation.
(c) CHANGE OF CONTROL DATE. The "Change of Control Date" shall
mean the first date on which a Change of Control occurs. Anything in this
Agreement to the contrary notwithstanding, if a Change of Control occurs and if
the Executive's employment with the Corporation is terminated or the Executive
ceases to have the position with the Corporation set forth in Section 2(a) above
prior to the date on which the Change of Control occurs, and if it is reasonably
demonstrated by the Executive that such termination or cessation (i) was at the
request of a third party who has taken steps reasonably calculated to effect the
Change of Control or (ii) otherwise arose in connection with or anticipation of
the Change of Control, then for all purposes of this Agreement the "Change of
Control Date" shall mean the date immediately prior to the date of such
termination or cessation.
(d) CHANGE OF CONTROL PERIOD. The "Change of Control Period"
shall mean the period commencing on the Change of Control Date and ending on the
last day of the Employment Period.
13 AMENDMENT OR MODIFICATION; WAIVER.
No provision of this Agreement may be amended, modified or
waived unless such amendment, modification or waiver shall be authorized by the
Board of Directors of the Corporation or any authorized committee of the Board
of Directors and shall be agreed to in writing, signed by the Executive and by
an officer of the Corporation thereunto duly authorized. Except as otherwise
specifically provided in this Agreement, no waiver by either party hereto of any
breach by the other party hereto of any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of a subsequent
breach of such condition or provision or a waiver of a similar or dissimilar
provision or condition at the same time or at any prior or subsequent time.
14 MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without reference to principles
of conflict of laws. The captions of
<PAGE> 34
this Agreement are not part of the provisions hereof and shall have no force or
effect.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
<PAGE> 35
IF TO THE EXECUTIVE: COPY TO:
- -------------------- --------
Mr. Southwood J. Morcott Mr. Southwood J. Morcott
c/o Dana Corporation 29765 Durham Circle
4500 Dorr Street Perrysburg, Ohio 43551
Toledo, Ohio 43615
IF TO THE CORPORATION:
- ----------------------
Dana Corporation
4500 Dorr Street
Toledo, Ohio 43615
Attention: Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Corporation may withhold from any amounts payable
under this Agreement such Federal, state or local taxes as it determines is
required to be withheld pursuant to any applicable law or regulation.
(e) When used herein in connection with plans, programs and
policies relating to the Executive, employees, compensation, benefits,
perquisites, executive benefits, services and similar words and phrases, the
word "Corporation" shall be deemed to include all wholly-owned Subsidiaries of
the Corporation.
(f) This instrument contains the entire agreement of the
parties concerning the subject matter, and all promises, representations,
understandings, arrangements and prior agreements concerning the subject matter
are merged herein and superseded hereby, including, without limitation, the
agreements between the parties dated February 13, 1984, December 10, 1990 and
December 14, 1992.
(g) No right, benefit or interest hereunder, shall be subject
to anticipation, alienation, sale, assignment, encumbrance, charge, pledge,
hypothecation, or set-off in respect of any claim, debt or obligation, or to
execution, attachment, levy or similar process, or assignment by operation of
law. Any attempt, voluntary or involuntary, to effect any action specified in
the immediately preceding sentence shall, to the full extent permitted by law,
be null, void and of no effect.
<PAGE> 36
(h) The Executive shall not have any right, title, or interest
whatsoever in or to any investments which the Corporation may make to aid it in
meeting its obligations under this Agreement.
(i) Subject to the provisions of Section 5(e) above, all
payments to be made under this Agreement shall be paid from the general funds of
the Corporation and no special or separate fund shall be established and no
segregation of assets shall be made to assure payment of amounts payable under
this Agreement.
(j) The Corporation and the Executive recognize that each
party will have no adequate remedy at law for breach by the other of any of the
agreements contained in this Agreement and, in the event of any such breach, the
Corporation and the Executive hereby agree and consent that the other shall be
entitled to a decree of specific performance, mandamus or other appropriate
remedy to enforce performance of such agreements.
(k) Subject to the provisions of Section 5(e) above, nothing
contained in this Agreement shall create or be construed to create a trust of
any kind, or a fiduciary relationship between the Corporation and the Executive
or any other person.
(l) Subject to the provisions of Section 5(e) above, to the
extent that any person acquires a right to receive payments from the Corporation
under this Agreement, except to the extent provided by law such right shall be
no greater than the right of an unsecured general creditor of the Corporation.
(m) In the event of the Executive's death or a judicial
determination of his incompetence, reference in this Agreement to the Executive
shall be deemed, where appropriate, to refer to his legal representative or,
where appropriate, to his Beneficiary.
(n) If any event provided for in this Agreement is scheduled
to take place on a legal holiday, such event shall take place on the next
succeeding day that is not a legal holiday.
IN WITNESS WHEREOF, the Executive and, pursuant to due
authorization from its Board of Directors, the Corporation have caused this
Agreement to be executed as of the day and year first above written.
<PAGE> 37
DANA CORPORATION
By:/s/ Martin J. Strobel
----------------------
Name: Martin J. Strobel
Title: Vice President
General Counsel
By:/s/ Theodore B. Sumner
-----------------------
Chairman of the
Compensation Committee
Attest:
Assistant Secretary
/s/ Sue A. Griffin
/s/ Southwood J. Morcott
------------------------
Executive
<PAGE> 38
Exhibit A Exhibit A to Agreement made as of December 8, 1997
between Dana Corporation and Southwood J. Morcott
-------------------------------------------------
As of December 8, 1997, for purposes of Section 2(a),
the office(s) and title(s) of the Executive are Chairman of
the Board of Directors and Chief Executive Officer;
the reporting responsibility of the Executive is to report
directly and only to the Board of Directors of the Corporation; and
the duties and responsibilities of the Executive are:
The Executive shall continue to serve as the principal officer
of the Corporation and as general manager of all operations
and affairs of the Corporation, its subsidiaries, affiliates
and divisions, at all times having the authority, powers and
duties of the person charged with the general management of
the business and affairs of the Corporation, with authority to
manage and direct all operations and affairs of the
Corporation, its subsidiaries, affiliates and divisions, and
to employ and discharge all employees thereof subject to
approval of the Board of Directors of the Corporation with
respect to elected officers of the Corporation. The Executive
shall serve as Chairman of the Policy Committee of the
Corporation. The Executive shall continue to report to and be
responsible only to the Board of Directors of the Corporation,
with all employees of the Corporation, its subsidiaries,
affiliates and divisions reporting directly or indirectly to
him.
<PAGE> 1
Exhibit 10-J(2)
EMPLOYMENT AGREEMENT
BETWEEN
DANA CORPORATION
AND
JOE M. MAGLIOCHETTI
DATED DECEMBER 8, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
------- ----
Recitals 1
<S> <C> <C>
1. EMPLOYMENT AND TERM......................................................................................1
2. POSITION AND DUTIES OF THE EXECUTIVE.....................................................................2
(a) POSITION............................................................................................2
(b) DUTIES..............................................................................................3
(c) LOCATION OF OFFICE..................................................................................3
3. COMPENSATION.............................................................................................3
(a) SALARY..............................................................................................3
(b) ADDITIONAL COMPENSATION.............................................................................4
(c) INCENTIVE, STOCK AND SAVINGS PLANS..................................................................4
(d) RETIREMENT AND WELFARE BENEFIT PLANS................................................................5
(e) EXPENSES............................................................................................5
(f) FRINGE BENEFITS.....................................................................................5
(g) OFFICE AND SUPPORT STAFF............................................................................6
(h) VACATION AND OTHER ABSENCES.........................................................................6
(i) BENEFITS SHALL NOT BE REDUCED UNDER CERTAIN CIRCUMSTANCES...........................................6
(j) SUPPLEMENTAL RETIREMENT ANNUITY.....................................................................7
4. TERMINATION OF EMPLOYMENT...............................................................................10
(a) DEATH OR DISABILITY................................................................................10
(b) CAUSE..............................................................................................11
(c) GOOD REASON........................................................................................12
(d) NOTICE OF TERMINATION..............................................................................14
(e) DATE OF TERMINATION................................................................................14
5 OBLIGATIONS OF THE CORPORATION UPON TERMINATION.........................................................14
(a) TERMINATION OTHER THAN FOR CAUSE...................................................................14
(b) TERMINATION ON OR AFTER CHANGE OF CONTROL..........................................................17
(c) CAUSE; OTHER THAN FOR GOOD REASON..................................................................17
(d) DEATH OR DISABILITY................................................................................18
(e) RESOLUTION OF DISPUTES.............................................................................18
(i) RIGHT OF ELECTION BY EXECUTIVE TO ARBITRATE OR SUE........................................18
(ii) THIRD-PARTY STAKEHOLDER..................................................................19
(f) BENEFITS ARE IN ADDITION TO SUPPLEMENTAL RETIREMENT ANNUITY........................................20
6 NON-EXCLUSIVITY OF RIGHTS...............................................................................20
7 FULL SETTLEMENT.........................................................................................20
8 GOLDEN PARACHUTE TAX PAYMENTS...........................................................................21
9 CONFIDENTIAL INFORMATION................................................................................22
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
10 COMPETITION.............................................................................................23
11 SUCCESSORS..............................................................................................24
12 CERTAIN DEFINITIONS.....................................................................................25
(a) BENEFICIARY........................................................................................25
(b) CHANGE OF CONTROL..................................................................................25
(c) CHANGE OF CONTROL DATE.............................................................................27
(d) CHANGE OF CONTROL PERIOD...........................................................................27
13 AMENDMENT OR MODIFICATION; WAIVER......................................................................27
14 MISCELLANEOUS...........................................................................................27
Exhibit A........................................................................................................31
</TABLE>
ii
<PAGE> 4
DEFINED TERMS
-------------
<TABLE>
<CAPTION>
DEFINED TERMS* SECTION PAGE
- -------------- ------- ----
<S> <C> <C>
Accounting Firm 8(b) 24
Accrued Obligation 5(a)(i)(3) 17
ACP 3(b) 5
Affiliate 2(a) 3
Affiliated Company 3(a) 4
Agreement Introduction 1
Annual Base Salary 3(a) 4
Annual Bonus 3(b) 4
Beneficiary 12(a) 29
Board 3(a) 4
Cause 4(b) 12
Change of Control 12(b) 29
Change of Control Date 12(c) 31
Change of Control Period 12(d) 31
Code 5(a)(ii) 18
Competition 10(c) 27
Corporation Introduction 1
11(b) 29
14(e) 32
Date of Termination 4(e) 16
Disability 4(a)(ii) 12
Disability Effective Date 4(a)(ii) 12
Employment Period 1(a) 1
Excise Tax 8(a) 24
Executive Introduction 1
</TABLE>
- --------
*Each listed term is intended to include both the singular and plural form
of the term.
iii
<PAGE> 5
DEFINED TERMS
-------------
<TABLE>
<CAPTION>
DEFINED TERMS* SECTION PAGE
- -------------- ------- ----
<S> <C> <C>
Gross-Up Payment 8(a) 24
Highest Average Monthly Compensation 3(j)(v) 11
Notice of Termination 4(d) 16
Other Benefits 5(a)(v) 20
Payment 8(a) 24
Pension and Retirement Program of the 3(j)(vi) 11
Corporation
Renewal Date 1(c) 2
Service 3(j)(vii) 12
Subsidiary 2(a) 3
Target Annual Bonus 3(b) 5
Terminal Date 1(b) 1
Termination 5(a) 17
Termination Period 5(a)(ii) 18
Welfare Benefit Continuation 5(a)(iii) 19
</TABLE>
- --------
*Each listed term is intended to include both the singular and plural form
of the term.
iv
<PAGE> 6
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") made and
entered into as of this 8th day of December, 1997, by and between DANA
CORPORATION, a Virginia corporation whose principal place of business is located
at 4500 Dorr Street, Toledo, Ohio (the "Corporation"), and Joe M. Magliochetti
(the "Executive");
WHEREAS, the Executive is a principal executive officer of the
Corporation and an integral part of its management; and
WHEREAS, the Corporation wishes to assure itself of the continuing
services of the Executive and to assure the Executive of continued employment
during the period of employment hereunder; and
WHEREAS, the Executive is willing to commit himself to remain in the
employ of the Corporation during such period on terms and conditions
substantially similar to those on which other senior executive officers of the
Corporation are employed, and to forego opportunities elsewhere during such
period; and
WHEREAS, the parties have entered into an Agreement dated December 14,
1992, as amended from time to time thereafter (the "Prior Agreement"); and
WHEREAS, the parties wish to amend and restate the Prior Agreement in
its entirety;
NOW, THEREFORE, IN CONSIDERATION of the mutual promises, covenants and
agreements set forth below, it is hereby agreed as follows:
1. EMPLOYMENT AND TERM.
(a) The Corporation agrees to continue the employment of the
Executive, and the Executive agrees to remain in the employ of the Corporation,
in accordance with the terms and provisions of this Agreement, for the period
set forth below (the "Employment Period").
(b) The Employment Period under this Agreement shall commence as of
December 8, 1997, and, subject only to the provisions of Section 4 below
relating to termination of employment, shall continue until (i) the close of
business on December 31, 2000 or (ii) such later date as shall result from the
operation of subparagraph (c) below (the "Terminal Date").
(c) Commencing on December 31, 1998, and on each anniversary of such
date (such date and each such annual anniversary thereof, the "Renewal Date")
the Terminal Date set forth in subparagraph (b) above shall be extended so as to
occur three (3) years from the Renewal Date unless either party shall have given
notice to the other party that the Terminal Date is not to be extended or
further extended.
1
<PAGE> 7
2. POSITION AND DUTIES OF THE EXECUTIVE
(a) POSITION. It is contemplated that during the Change of Control
Period (as defined in Section 12(d), below), the Executive will continue to
serve as a principal officer of the Corporation and as a member of its Board of
Directors if serving as a member of the Board of Directors immediately prior to
the Change of Control Date, with the office(s) and title(s), reporting
responsibility, and duties and responsibilities of the Executive immediately
prior to the Change of Control Date. The Executive hereby agrees that at any
time prior to the Change of Control Date, the Board of Directors of the
Corporation (or the individual to whom the Executive reports) may, without the
Executive's consent, change the Executive's office(s), title(s), reporting
responsibility, and duties or responsibilities.
The office(s), title(s), reporting responsibility, duties and
responsibilities of the Executive on the date of this Agreement, as the same may
be changed from time to time after the date of this Agreement in accordance with
the provisions of the previous paragraph, shall be summarized in Exhibit A to
this Agreement, it being understood and agreed that if, as and when the
office(s), title(s), reporting responsibility, duties or responsibilities of the
Executive shall be so changed after the date of this Agreement, Exhibit A shall
be deemed to be, and shall be updated by the parties to reflect such change;
PROVIDED, HOWEVER, that Exhibit A is intended only as a memorandum for the
convenience of the parties and shall be disregarded if, and to the extent that,
Exhibit A shall fail to reflect accurately the office(s), title(s), reporting
responsibility, duties or responsibilities of the Executive as so changed after
the date of this Agreement because the parties shall have failed to update
Exhibit A as aforesaid.
At all times during the Change of Control Period, the Executive
shall hold a position of responsibility and importance and a position of scope,
with the functions, duties and responsibilities attached thereto, at least equal
in responsibility and importance and in scope to and commensurate with his
position described in general terms above in this Section 2(a) and intended to
be summarized in Exhibit A to this Agreement.
During the Employment Period the Executive shall, without
compensation other than that herein provided, also serve and continue to serve,
if and when elected and re-elected, as an officer or director, or both, of any
United States Subsidiary, division or Affiliate of the Corporation.
For all purposes of this Agreement, (i) a Subsidiary shall mean a
corporation or other entity, of which 50% or more of the voting securities or
other equity interests is owned directly, or indirectly through one or more
intermediaries, by the Corporation, and (ii) an Affiliate shall mean a
corporation or other entity which is not a Subsidiary and which directly, or
2
<PAGE> 8
indirectly, through one or more intermediaries, controls, or is controlled by,
or is under common control with, the Corporation. For the purpose of this
definition, the terms "control," "controls" and "controlled" mean the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a corporation or other entity, whether through
the ownership of voting securities, by contract, or otherwise.
(b) DUTIES. Throughout the Employment Period the Executive shall
devote his full time and undivided attention during normal business hours to the
business and affairs of the Corporation except for reasonable vacations and
except for illness or incapacity, but nothing in this Agreement shall preclude
the Executive from devoting reasonable periods required for:
(i) serving as a director or member of a committee or any
organization involving no conflict of interest with the interests of the
Corporation;
(ii) delivering lectures, fulfilling speaking engagements,
teaching at educational institutions;
(iii) engaging in charitable and community activities; and
(iv) managing his personal investments;
provided that such activities do not materially interfere with the regular
performance of his duties and responsibilities under this Agreement.
(c) LOCATION OF OFFICE. During the Change of Control Period, the
office of the Executive shall be located at the principal offices of the
Corporation, within the greater Toledo, Ohio area, and the Executive shall not
be required to locate his office elsewhere without his prior written consent,
nor shall he be required to be absent therefrom on travel status or otherwise
more than thirty (30%) of the working days in any calendar year nor for more
than ten (10) consecutive days at any one time.
3. COMPENSATION.
The Executive shall receive the following compensation for his
services:
(a) SALARY. So long as the Executive is employed by the Corporation,
he shall be paid an annual base salary, payable not less often than monthly, at
the rate of not less than $43,333.33 per month with such increases as shall be
awarded from time to time in accordance with the Corporation's regular
administrative practices of other salary increases applicable to executives of
the Corporation, subject to any and all required withholdings and deductions for
Social Security, income taxes and the like (the
3
<PAGE> 9
"Annual Base Salary"). The Board of Directors of the Corporation (the "Board")
may from time to time direct such upward adjustments to Annual Base Salary as
the Board deems to be necessary or desirable; PROVIDED, HOWEVER, that during the
Change of Control Period (as defined in Section 12(d) below), the Annual Base
Salary shall be reviewed at least annually and shall be increased at any time
and from time to time but not less often than annually and shall be
substantially consistent with increases in base salary generally awarded in the
ordinary course of business to other senior executives of the Corporation and
its Affiliated Companies (a term which, as used in this Agreement, shall mean a
Subsidiary or Affiliate of the Corporation) and, in addition, shall be adjusted
effective as of January lst of each calendar year commencing in the Change of
Control Period to reflect increases in the cost of living during the preceding
calendar year. Annual Base Salary shall not be reduced after any increase
thereof pursuant to this Section 3(a). Any increase in Annual Base Salary shall
not serve to limit or reduce any other obligation of the Corporation under this
Agreement.
(b) ADDITIONAL COMPENSATION. So long as the Executive is employed by
the Corporation, he shall be eligible to receive annual short-term incentive
awards or bonuses (such award or bonus is hereinafter referred to as "Short-Term
Award" or "Annual Bonus") from the Dana Corporation Additional Compensation
Plan, and from any successor or replacement plan (the Dana Corporation
Additional Compensation Plan and such successor or replacement plans being
referred to herein collectively as the "ACP"), in accordance with the terms
thereof; PROVIDED, HOWEVER, that, with respect to each fiscal year of the
Corporation ending during the Change of Control Period, the Executive shall be
awarded (whether under the terms of the ACP or otherwise) an Annual Bonus in an
amount that shall not be less than fifty percent (50%) of his Annual Base Salary
rate in effect on the last day of such fiscal year (which amount shall be
prorated if such fiscal year shall be less than 12 months) (the "Target Annual
Bonus"). Each Annual Bonus shall be paid no later than the end of the third
month of the fiscal year next following the fiscal year for which the Annual
Bonus is awarded, unless the receipt of such Annual Bonus is deferred in
accordance with the terms of the ACP.
(c) INCENTIVE, STOCK AND SAVINGS PLANS. So long as the Executive is
employed by the Corporation, he shall be and continue to be a full participant
in the Dana Corporation 1997 Stock Option Plan, the ACP (providing for
Short-Term Awards) and in any and all other incentive, stock, savings or
retirement plans, practices or policies in which executives of the Corporation
participate that are in effect on the date hereof and that may hereafter be
adopted, including, without limitation, any stock option, stock purchase or
stock appreciation plans, or any successor plans that may be adopted by the
Corporation with, except in the case of the ACP after the commencement of the
Change of Control Period, at least the same reward opportunities, if any, that
have heretofore been provided to the Executive. Nothing in this Agreement shall
4
<PAGE> 10
preclude improvement of reward opportunities in such plans or other plans in
accordance with the practice of the Corporation on or after the date of this
Agreement. Any provision of the ACP or of this Agreement to the contrary
notwithstanding, any Short-Term Awards made to the Executive during the Change
of Control Period (whether for services rendered prior to or after the Change of
Control Date) shall be paid wholly in cash as soon as practicable after the
awards are made.
(d) RETIREMENT AND WELFARE BENEFIT PLANS. The Executive, his
dependents and Beneficiary, including, without limitation, any beneficiary of a
joint and survivor or other optional method of payment applicable to the payment
of benefits under the Pension and Retirement Program of the Corporation, as
defined in Section 3(j)(vi) below, shall be entitled to all payments and
benefits and service credit for benefits during the Employment Period to which
other senior executives of the Corporation, their dependents and their
beneficiaries are entitled under the terms of employee retirement and welfare
benefit plans and practices of the Corporation, including, without limitation,
the Pension and Retirement Program of the Corporation (as defined in Section
3(j)(vi) below), the Corporation's Savings and Investment Plan, its Stock
Purchase Plan, its Stock Award Plan, its Income Protection Plan for Management
and Certain Other Employees providing layoff and severance benefits, its 1989
Restricted Stock Plan, its Excess Benefits Plan, its Supplemental Benefits Plan,
its death benefit plans (consisting of its Group Insurance Plan for Management
Employees providing life insurance, accidental death and dismemberment
insurance, and travel accident insurance), its disability benefit plans
(consisting of its salary continuation, sickness and accident and long-term
disability benefits programs), its medical, dental and health and welfare plans
and other present or equivalent successor plans and practices of the
Corporation, its Subsidiaries and divisions, for active and retired employees,
for which officers, their dependents and beneficiaries, are eligible, and to all
payments or other benefits under any such plan or practice subsequent to the
Employment Period as a result of participation in such plan or practice during
the Employment Period.
(e) EXPENSES. So long as the Executive is employed by the
Corporation, he shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by the Executive in accordance with the polices,
practices and procedures of the Corporation and its Affiliated Companies from
time to time in effect, commensurate with his position and on a basis at least
comparable to that of other senior executives of the Corporation.
(f) FRINGE BENEFITS. So long as the Executive is employed by the
Corporation, he shall be entitled to fringe benefits, including, without
limitation, the business and personal use of an automobile, and payment or
reimbursement of club initiation fees and dues, in accordance with the plans,
practices, programs and policies of the Corporation and its Affiliated
5
<PAGE> 11
Companies from time to time in effect, commensurate with his position and at
least comparable to those received by other senior executives of the
Corporation.
(g) OFFICE AND SUPPORT STAFF. So long as the Executive is employed
by the Corporation, he shall be entitled to an office or offices of a size and
with furnishings and other appointments, and to exclusive personal secretarial
and other assistance, commensurate with his position and at least comparable to
those received by other senior executives of the Corporation.
(h) VACATION AND OTHER ABSENCES. So long as the Executive is
employed by the Corporation, he shall be entitled to paid vacation and such
other paid absences whether for holidays, illness, personal time or any similar
purposes, in accordance with the plans, policies, programs and practices of the
Corporation and its Affiliated Companies in effect from time to time,
commensurate with his position and at least comparable to those received by
other senior executives of the Corporation.
(i) BENEFITS SHALL NOT BE REDUCED UNDER CERTAIN CIRCUMSTANCES.
Nothing in this Agreement shall preclude the Corporation from amending or
terminating any employee benefit or welfare plan or practice, but, it being the
intent of the parties that the Executive shall continue to be entitled during
the Employment Period to perquisites as set forth in this Section 3 and to
benefits and service credit for benefits under Section 3(d) above at least equal
to those attached to his position on December 10, 1990, the date of the original
agreement between the parties (except that, in converting a monthly retirement
benefit, which is payable under any plan that is a component of the Pension and
Retirement Program of the Corporation, into a lump sum payment, the lump sum
conversion basis to be used shall be the basis that is described in Section
3(j)(iii) below, regardless of whether such basis is more favorable or less
favorable than the one in effect on December 10, 1990), and except as provided
in the last sentence of this Section 3(i), nothing in this Agreement shall
operate or be construed to reduce, or authorize a reduction without the
Executive's written consent in, the level of such perquisites, benefits or
service credit for benefits; in the event of any such reduction, by amendment or
termination of any plan or practice or otherwise, the Executive, his dependents
and Beneficiary, shall continue to be entitled to perquisites, benefits and
service credit for benefits at least equal to the perquisites, benefits and
service credit for benefits under such plans or practices that he or his
dependents and Beneficiary would have received if such reduction had not taken
place. If and to the extent that such perquisites, benefits and service credits
are not payable or provided under any such plans or practices by reason of such
amendment or termination thereof, the Corporation itself shall pay or provide
therefor. Notwithstanding the foregoing provisions of this Section 3(i), the
Executive hereby waives the benefit of the foregoing minimum benefit protection
only as it applies to the Dana Corporation Savings and Investment Plan, and to
its medical, dental
6
<PAGE> 12
and health plans for active and retired employees. The Executive expressly does
not waive the application of the foregoing minimum benefit protection to any of
the other benefit plans, programs or practices enumerated in Section 3 above,
including, without limitation, the Pension and Retirement Program of the
Corporation, its death benefit plans, its disability benefit plans, and its
Income Protection Plan for Management and Certain Other Employees. The Executive
reserves the right to cancel the above waiver, prospectively, at any future time
by giving written notice to the Corporation of such cancellation. Nothing in
this Section 3(i) shall be construed to prohibit the Corporation from amending
or terminating any employee benefit or welfare plan or practice to reduce
benefits, so long as such reduction applies to all salaried Corporation
employees covered by such plan or practice equally and such reduction is adopted
prior to the commencement of the Change of Control Period.
(j) SUPPLEMENTAL RETIREMENT ANNUITY.
(i) If the Service of the Executive, including, without
limitation, the period set forth in Section 5(a)(iv)(2) below, relating
to the period between the Date of Termination and the end of the
Termination Period, shall terminate other than for death or Cause as
defined in Section 4(b) below, and if the Executive shall have a total
of not less than fifteen (15) years of Service, as defined in
subparagraph (vii) of this Section 3(j), whether or not consecutive, the
Executive, subject to compliance with the provisions of Sections 9 and
10 below, relating to confidential information and Competition,
respectively, shall be entitled to the supplemental retirement annuity
provided by this Section 3(j) in addition to all other benefits to which
the Executive may be entitled including, without limitation, benefits
under the Pension and Retirement Program of the Corporation.
Notwithstanding the foregoing provisions of this paragraph, the
Executive shall not be entitled to receive the supplemental retirement
annuity provided by this Section 3(j) if his Service shall terminate
prior to his attainment of age 55 and prior to the Change of Control
Date.
Such supplemental retirement annuity shall be payable by the Corporation
on a straight life annuity basis commencing on the first day of the month
coinciding with or next following the latest of
(1) termination of Service;
(2) attainment by the Executive of age 55; and
(3) if the Executive had not previously retired with 15
years or more of Service, the expiration of the
Employment Period; and continuing
7
<PAGE> 13
on the first day of each month thereafter during his
lifetime.
(ii) The monthly payment provided for in Section 3(j)(i) above
shall be equal to fifty percent (50%) (or if higher, the percentage
which is the product of 1.6% multiplied by the Executive's Credited
Service at retirement, as such Credited Service is determined by
application of the definition of Credited Service under the Dana
Corporation Retirement Plan), of the Executive's Highest Average Monthly
Compensation, as defined in Section 3(j)(v), less the sum of
(1) commencing at the earliest date that it could be payable
on or after termination of Service, the aggregate
monthly retirement benefit payable to the Executive for
life on a straight life annuity basis under the Pension
and Retirement Program of the Corporation to the extent
attributable to contributions of the Corporation, its
Subsidiaries and Affiliates;
(2) commencing at the earliest date that it could be payable
on or after termination of Service, the aggregate
monthly retirement or disability benefit payable to the
Executive for life on a straight life annuity basis
following his retirement from employment by the
Corporation, its Subsidiaries and Affiliates, to the
extent attributable to contributions other than by the
Executive under pension or retirement plans of all
corporations, organizations or entities other than the
Corporation, its Subsidiaries and Affiliates;
(3) commencing at the earliest date payable on or after
termination of Service, 50% of the monthly primary
Social Security benefit that would be or would have been
payable to the Executive in the absence of any
compensation that may at the time be or have been earned
by him; and
(4) commencing at the earliest date payable on or after
termination of Service and continuing until no longer
payable, the aggregate monthly disability benefit
payable to the Executive under disability benefit plans
and pension plans of the Corporation, its Subsidiaries
and Affiliates to the extent attributable to
contributions of the Corporation, its Subsidiaries and
Affiliates.
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(iii) The Executive may elect to receive payment of the
supplemental retirement annuity provided by this Section 3(j), under a
joint and survivor or any other optional method of payment available
under the Dana Corporation Retirement Plan, including, without
limitation, any deferment in the time of payment thereof. The amount of
the benefit payable pursuant to any form of payment under this Section
3(j) shall be determined by applying the mortality assumptions, interest
rates, and other factors contained in the Dana Corporation Retirement
Plan that would be applicable to the form of payment elected by the
Executive; PROVIDED THAT, if a lump sum distribution is made hereunder,
the amount of the lump sum distribution shall be actuarially equivalent
to the monthly benefit prescribed by Section 3(j)(ii), calculated using
the basis described in subparagraph (1) or (2), below, whichever
produces the larger lump sum amount:
(1) the lump sum amount calculated on the basis of the
"applicable interest rate" (as in effect for the
November preceding the calendar year in which the
calculation is made) and the "applicable mortality
table," both as defined in Section 417(e) of the
Internal Revenue Code; or
(2) the lump sum amount calculated on the basis of the
actuarial equivalent factor used to convert the
Executive's Earned Benefit Account into a life annuity
under the Dana Corporation Retirement Plan at the time
the calculation is made.
If it is determined that the Executive is subject to
federal income taxation on an amount in respect of the
supplemental retirement annuity prior to the distribution of all
of such amount to him, the Corporation shall forthwith pay to
the Executive all (or the balance) of such amount as is
includable in the Executive's federal gross income and
correspondingly reduce future payments, if any, of the
supplemental retirement annuity.
(iv) In the event that the Corporation defaults in payment of
all or any part of the supplemental retirement annuity provided above in
this Section 3(j) and fails to remedy such default within thirty days
after having received notice from the Executive or his Beneficiary, the
Corporation shall thereupon pay to the Executive or his Beneficiary, as
the case may be, in full discharge of its obligations under this Section
3(j), (1) a lump sum amount actuarially equivalent (based on the same
assumptions and discount factors as would be applicable
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under the Dana Corporation Retirement Plan as then in effect) to the
future payments otherwise payable under this Section 3(j), and (2) an
amount equal to any and all past due payments under this Section 3(j).
(v) The term "Highest Average Monthly Compensation" shall mean
the sum of (1) one-twelfth (1/12) of the Annual Base Salary provided in
Section 3(a) at the rate being paid at the time the Executive's
termination of employment occurred, and (2) one-twelfth (1/12) of the
average of the highest Annual Bonuses payable to the Executive for any
three (3) consecutive full or partial fiscal years during his employment
by the Corporation, PROVIDED, HOWEVER, that with respect to 1994 and
subsequent years' Annual Bonuses, only that portion of the Employee's
Annual Bonus as does not exceed 125% of his Annual Base Salary will be
considered.
(vi) The term "Pension and Retirement Program of the
Corporation" shall mean the Dana Corporation Retirement Plan, the Dana
Corporation Excess Benefits Plan, the Dana Corporation Supplemental
Benefits Plan, and any other supplemental, early retirement and similar
plan or plans of the Corporation, its Subsidiaries and Affiliates,
providing for pension or retirement benefits that may be applicable to
the Executive and that are in effect on the date hereof or may hereafter
be adopted or substituted for any such plan, but exclusive of the Dana
Corporation Savings and Investment Plan and any similar plan or plans.
(vii) The term "Service" shall mean employment as an employee by
the Corporation, any Subsidiary or Affiliate thereof or any corporation
the capital stock or assets of which have been acquired by, or which has
been merged into or consolidated with the Corporation or any Subsidiary
or Affiliate thereof.
4. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY.
(i) The Executive's employment shall terminate automatically
upon the Executive's death during the Employment Period.
(ii) If the Corporation determines in good faith that the
Disability (as defined below) of the Executive has occurred during the
Employment Period, it may give to the Executive written notice in
accordance with Section 14(b) below of its intention to terminate the
Executive's employment. In such event, the Employment Period shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective
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Date"), PROVIDED, that within the 30 days after such receipt, the
Executive shall not have returned to full-time performance of the
Executive's duties. For purposes of this Agreement, "Disability" shall
mean the absence of the Executive from the Executive's duties with the
Corporation on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness which is
determined to be total and permanent by a physician selected by the
Corporation or its insurers and acceptable to the Executive or the
Executive's legal representative (such agreement as to acceptability not
to be withheld unreasonably).
(b) CAUSE. The Corporation may terminate the Executive's employment
during the Employment Period for Cause. For purposes of this Agreement, the
termination of the Executive's employment shall be deemed to have been for
"Cause" only
(i) if termination of his employment shall have been the result
of his conviction of, or plea of guilty or nolo contendere to, the
charge of having committed a felony (whether or not such conviction is
later reversed for any reason), or
(ii) if there has been a breach by the Executive during the
Employment Period of the provisions of Section 2(b), relating to the
time to be devoted to the affairs of the Corporation, or of Section 9,
relating to confidential information, and such breach results in
demonstrably material injury to the Corporation, and, with respect to
any alleged breach of Section 2(b) hereof, the Executive shall have
either failed to remedy such alleged breach within thirty days from his
receipt of written notice from the Secretary of the Corporation pursuant
to resolution duly adopted by the Board of Directors of the Corporation
after notice to the Executive and an opportunity to be heard demanding
that he remedy such alleged breach, or shall have failed to take all
reasonable steps to that end during such thirty-day period and
thereafter;
PROVIDED, that there shall have been delivered to the Executive a certified copy
of a resolution of the Board of Directors of the Corporation adopted by the
affirmative vote of not less than three-fourths of the entire membership of the
Board of Directors called and held for that purpose and at which the Executive
was given an opportunity to be heard, finding that the Executive was guilty of
conduct set forth in subparagraph (i) or (ii) above, specifying the particulars
thereof in detail.
Anything in this Section 4(b) or elsewhere in this Agreement to the
contrary notwithstanding, the employment of the Executive shall in no event be
considered to have been terminated by the Corporation for Cause if termination
of his employment took place
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(1) as the result of bad judgment or negligence on the part
of the Executive, or
(2) because of an act or omission believed by the Executive
in good faith to have been in or not opposed to the
interests of the Corporation, or
(3) for any act or omission in respect of which a
determination could properly be made that the Executive
met the applicable standard of conduct prescribed for
indemnification or reimbursement or payment of expenses
under (A) the Bylaws of the Corporation, or (B) the laws
of the State of Virginia, or (C) the directors' and
officers' liability insurance of the Corporation, in
each case either as in effect at the time of this
Agreement or in effect at the time of such act or
omission, or
(4) as the result of an act or omission which occurred more
than twelve calendar months prior to the Executive's
having been given notice of the termination of his
employment for such act or omission unless the
commission of such act or such omission could not at the
time of such commission or omission have been known to a
member of the Board of Directors of the Corporation
(other than the Executive, if he is then a member of the
Board of Directors), in which case more than twelve
calendar months from the date that the commission of
such act or such omission was or could reasonably have
been so known, or
(5) as the result of a continuing course of action which
commenced and was or could reasonably have been known to
a member of the Board of Directors of the Corporation
(other than the Executive, if he is then a member of the
Board of Directors) more than twelve calendar months
prior to notice having been given to the Executive of
the termination of his employment.
(c) GOOD REASON. Following a Change of Control (as defined in
Section 12(b) below), the Executive may terminate his employment for Good
Reason. For purposes of this Agreement, "Good Reason" shall mean the occurrence
after the Change of Control Date of any of the following events:
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(i) Failure to elect or reelect the Executive to the Board of
Directors of the Corporation, if the Executive shall have been a member
of the Board of Directors on the date of this Agreement or at any time
thereafter during the Employment Period, or failure to elect or reelect
the Executive to, or removal of the Executive from, the office(s)
described in Section 2(a) above and intended to be summarized in Exhibit
A to this Agreement.
(ii) A significant change in the nature or scope of the
authorities, powers, functions or duties attached to the position
described in Section 2 above and intended to be summarized in Exhibit A
to this Agreement, or a reduction in compensation, which is not remedied
within 30 days after receipt by the Corporation of written notice from
the Executive.
(iii) A determination by the Executive made in good faith that
as a result of a Change of Control, and a change in circumstances
thereafter and since the date of this Agreement significantly affecting
his position, he is unable to carry out the authorities, powers,
functions or duties attached to his position and contemplated by Section
2 of this Agreement and the situation is not remedied within 30 days
after receipt by the Corporation of written notice from the Executive of
such determination.
(iv) A breach by the Corporation of any provision of this
Agreement not embraced within the foregoing clauses (i), (ii) and (iii)
of this Section 4(c) which is not remedied within 30 days after receipt
by the Corporation of written notice from the Executive.
(v) The liquidation, dissolution, consolidation or merger of the
Corporation or transfer of all or a significant portion of its assets
unless a successor or successors (by merger, consolidation or otherwise)
to which all or a significant portion of its assets have been
transferred shall have assumed all duties and obligations of the
Corporation under this Agreement but without releasing the corporation
that is the original party to this Agreement; PROVIDED, that in any
event set forth in this Section 4(c), the Executive shall have elected
to terminate his employment under this Agreement, upon not less than ten
and not more than ninety days' advance written notice to the
Corporation, attention of the Secretary, given, except in the case of a
continuing breach, within three calendar months after (A) failure to be
so elected or reelected, or removal, (B) expiration of the thirty-day
cure period with respect to such event, or (C) the closing date of such
liquidation, dissolution, consolidation, merger or transfer of assets,
as the case may be.
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An election by the Executive to terminate his employment given under
the provisions of this Section 4(c) shall not be deemed a voluntary termination
of employment by the Executive for the purpose of this Agreement or any plan or
practice of the Corporation.
(d) NOTICE OF TERMINATION. Any termination by the Corporation for
Cause, or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 14(b)
below. For purposes of this Agreement, a "Notice of Termination" means a written
notice which
(i) indicates the specific termination provision in this
Agreement relied upon,
(ii) to the extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination
of the Executive's employment under the provision so indicated and
(iii) if the Date of Termination (as defined in Section 4(e)
below) is other than the date of receipt of such notice, specifies the
termination date (which date shall be not more than fifteen days after
the giving of such notice).
(e) DATE OF TERMINATION. "Date of Termination" means
(i) if the Executive's employment is terminated by the
Corporation for Cause, or by the Executive for Good Reason, the date of
receipt of the Notice of Termination or any later date specified
therein, as the case may be,
(ii) if the Executive's employment is terminated by the
Corporation other than for Cause or Disability, the Date of Termination
shall be the date on which the Corporation notifies the Executive of
such termination and
(iii) if the Executive's employment is terminated by reason of
death or Disability, the Date of Termination shall be the date of death
of the Executive or the Disability Effective Date, as the case may be.
5 OBLIGATIONS OF THE CORPORATION UPON TERMINATION.
(a) TERMINATION OTHER THAN FOR CAUSE. If, during the Employment
Period, the Corporation shall terminate the Executive's employment other than
for Cause or the Executive shall terminate his employment following a Change of
Control for Good Reason (termination in any such case referred to as
"Termination"):
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(i) the Corporation shall pay the Executive in a lump sum in
cash within 30 days after the Date of Termination the sum of
(1) the Executive's Annual Base Salary through the Date of
Termination to the extent not theretofore paid,
(2) the product of (x) the Target Annual Bonus and (y) a
fraction, the numerator of which is the number of days
in the current fiscal year through the Date of
Termination, and the denominator of which is 365, and
(3) any compensation previously deferred by the Executive
(together with any accrued interest or earnings thereon)
and any accrued vacation pay, in each case to the extent
not theretofore paid (the sum of the amounts described
in clauses (1), (2), and (3) shall be hereinafter
referred to as the "Accrued Obligations"); and
(ii) at the end of the month next following the Termination, and
at the end of each month thereafter until the earliest of the end of the
Employment Period, three years following the Date of Termination, or
until the Executive shall attain the age of 65 years, but in no event
beyond the end of the month in which the death of the Executive shall
have occurred or the end of the sixth month following the Disability
Effective Date (such period to be called the "Termination Period"), the
Corporation shall pay to the Executive an amount equal to the Highest
Average Monthly Compensation; PROVIDED, HOWEVER, that such amount shall
be reduced by any other amounts payable to the Executive in respect of
salary or bonus continuation to be received by the Executive under any
severance plan, policy or arrangement of the Corporation; and, PROVIDED,
FURTHER, that if the Date of Termination occurs on or after the
occurrence of a Change of Control, such amount shall be paid as a
lump-sum within 30 days following the Date of Termination, such lump-sum
calculated based upon the present value (within the meaning of Section
28OG(d)(4) of the Internal Revenue Code of 1986 as amended (the "Code"))
of the payments which would be made absent the Change of Control; and
(iii) During the Termination Period, or such longer period as
any plan, program, practice or policy may provide, the Corporation shall
continue benefits to the Executive and/or the Executive's family at
least equal to those which would have been provided to them in
accordance with the plans, programs, practices and policies described in
Section 3(d) above if the Executive's employment had not been terminated
in accordance
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with the most favorable plans, practices, programs or policies of the
Corporation and its Affiliated Companies as in effect and applicable
generally to other senior executives of the Corporation and its
Affiliated Companies and their families during the 90-day period
immediately preceding the Date of Termination or, if more favorable to
the Executive, as in effect at any time thereafter or, if more favorable
to the Executive, as in effect generally at any time thereafter with
respect to other senior executives of the Corporation and its Affiliated
Companies and their families, PROVIDED, HOWEVER, that if the Executive
becomes reemployed with another employer and is eligible to receive
medical or other welfare benefits under another employer-provided plan,
the medical and other welfare benefits described herein shall be
secondary to those provided under such other plan during such applicable
period of eligibility (such continuation of such benefits for the
applicable period herein set forth shall be hereinafter referred to as
"Welfare Benefit Continuation"). For purposes of determining eligibility
of the Executive for retiree benefits pursuant to such plans, practices,
programs and policies, the Executive shall be considered to have
remained employed until the end of the Termination Period and to have
retired on the date of the end of the Termination Period. To the extent
that any benefits referred to in this Section 5(a)(iii) shall not be
payable or provided under any such plan by reason of the Executive's no
longer being an employee of the Corporation as the result of
Termination, the Corporation shall itself pay, or provide for payment
of, such benefits and the service credit for benefits provided for in
Section 5(a)(iv) below, to the Executive, his dependents and
Beneficiary; and
(iv) The period from the Date of Termination until the end of
the Termination Period shall be considered:
(1) Service with the Corporation for the purpose of
continued credits under the employee benefit plans
referred to in Section 3(d) above and all other benefit
plans of the Corporation applicable to the Executive or
his Beneficiary as in effect immediately prior to
Termination but prior to any reduction of benefits
thereunder as the result of amendment or termination
during the Employment Period;
(2) Service within the meaning of Section 3(j) (vii) above
for purposes of Section 3(j) above; and
(3) Employment with the Corporation for purposes of
determining payments and other rights in
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respect of awards made or accrued and award
opportunities granted prior to Termination under the
executive incentive plans referred to in Section 3(c)
above and all other incentive plans of the Corporation
in which the Executive was a participant prior to
Termination; and
(v) to the extent not theretofore paid or provided, the
Corporation shall timely pay or provide to the Executive and/or the
Executive's family any other amounts or benefits required to be paid or
provided or which the Executive and/or the Executive's family is
eligible to receive pursuant to this Agreement and under any plan,
program, policy or practice or contract or agreement of the Corporation
and its Affiliated Companies as in effect and applicable generally to
other senior executives of the Corporation and its Affiliated Companies
and their families during the 90-day period immediately preceding the
Date of Termination or, if more favorable to the Executive, as in effect
generally thereafter with respect to other senior executives of the
Corporation and its Affiliated Companies and their families (such other
amounts and benefits shall be referred to below as the "Other
Benefits").
(b) TERMINATION ON OR AFTER CHANGE OF CONTROL. If Termination shall
have occurred coincidental with a Change of Control or during the Change of
Control Period, any provision of Section 5(a)(iv) above or of the ACP to the
contrary notwithstanding, upon such Termination, the Corporation shall pay or
distribute to the Executive on an accelerated basis, to the extent, if any, not
theretofore accelerated, any and all outstanding Short-Term Awards, or
installments thereof, under the ACP that shall have been awarded to the
Executive prior to Termination and deferred for payment subsequent to
termination of employment, with any such accelerated payment based on the value,
determined in accordance with such plan (or successor plan), of such awards or
installments (and any increments thereon) on the Termination Date, and such
accelerated payment or distribution shall constitute a complete discharge of the
Corporation's obligation in respect of the Short-Term Awards so paid or
distributed.
(c) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's
employment shall be terminated for Cause during the Employment Period, the
Corporation shall have no further obligations to the Executive under this
Agreement other than the obligation to pay the Executive's Annual Base Salary,
any compensation previously deferred by the Executive (together with any accrued
interest or earnings thereon), and accrued vacation pay through the Date of
Termination, in each case to the extent not theretofore paid, and any other
amounts or benefits to which the Executive and/or the Executive's family is
otherwise entitled under the terms of any employee benefit or incentive plan of
the Corpora-
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tion. If the Executive terminates employment during the Employment
Period, excluding a termination for Good Reason following a Change of Control,
the Corporation shall have no further obligations to the Executive, other than
to pay the Executive's Annual Base Salary, any compensation previously deferred
by the Executive (together with any accrued interest or earnings thereon), and
accrued vacation pay through the termination date, in each case to the extent
not theretofore paid, any other benefits to which the Executive and/or the
Executive's family is otherwise entitled under the terms of any employee benefit
or incentive plan of the Corporation, and, if the Executive is otherwise
eligible under the provisions of Section 3(j) of this Agreement, he shall also
be entitled to receive the supplemental retirement annuity described in such
Section 3(j).
(d) DEATH OR DISABILITY.
(i) In the event of the death of the Executive during the
Employment Period, the legal representative of the Executive shall be
entitled to the compensation provided for in Sections 3(a) and 3(b)
above for the month in which death shall have taken place, at the rate
being paid at the time of death, and the Employment Period shall be
deemed to have ended as of the close of business on the last day of the
month in which death shall have occurred but without prejudice to any
payments due in respect of the Executive's death.
(ii) In the event of the Disability of the Executive during the
Employment Period, the Executive shall be entitled to the compensation
provided for in Sections 3(a) and 3(b) above, at the rate being paid on
the Disability Effective Date, for the period of such Disability but not
in excess of six months. The amount of any payments due under this
Section 5(d)(ii) shall be reduced by any payments to which the Executive
may be entitled for the same period because of disability under any
disability or pension plan of the Corporation or of any Subsidiary or
Affiliate thereof.
(e) RESOLUTION OF DISPUTES.
(i) RIGHT OF ELECTION BY EXECUTIVE TO ARBITRATE OR SUE. In the
event that the Executive's employment shall be terminated by the
Corporation during the Employment Period and such termination is alleged
to be for Cause, or the Executive's right to terminate his employment
under Section 4(c) above shall be questioned by the Corporation, or the
Corporation shall withhold payments or provision of benefits for any
other reason, the Executive shall have the right, in addition to all
other rights and remedies provided by law, at his election either to
seek arbitration within the Toledo, Ohio area under the rules of the
American Arbitration Association
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by serving a notice to arbitrate upon the Corporation or to institute a
judicial proceeding, in either case within ninety days after having
received notice of termination of his employment or notice in any form
that the termination of his employment under Section 4(b) above is
subject to question or that the Corporation is withholding or proposes
to withhold payments or provision of benefits.
(ii) THIRD-PARTY STAKEHOLDER. In the event that the Corporation
defaults on any obligation set forth in Section 5(a) above, relating to
Termination, and shall have failed to remedy such default within thirty
(30) days after having received written notice of such default from the
Executive, in addition to all other rights and remedies that the
Executive may have as a result of such default, the Executive may demand
and the Corporation shall thereupon be required to deposit, with the
third-party stakeholder hereinafter described, an amount equal to the
undiscounted value of any and all undischarged, future obligations of
the Corporation under Section 5(a) above and such amount shall
thereafter be held, paid, applied or distributed by such third-party
stakeholder for the purpose of satisfying such undischarged, future
obligations of the Corporation when and to the extent that they become
due and payable. Any interest or other income on such amount shall be
retained by the third-party stakeholder and applied, if necessary, by it
to satisfy such obligations, PROVIDED, HOWEVER, that any interest or
other income that is earned on such undischarged, future obligations
after the date that the third-party stakeholder determines, in its sole
discretion, that such obligations are due and owing to the Executive,
shall be paid to the Executive as earned. To the extent not theretofore
expended, such amount (including any remaining unexpended interest or
other income) shall be repaid to the Corporation at such time as the
third-party stakeholder, in its sole discretion, reasonably exercised,
determines, upon the advice of counsel and after consultation with the
Corporation and the Executive or, in the event of his death, his
Beneficiary, that all obligations of the Corporation under Section 5(a)
above have been substantially satisfied.
Such amount shall, in the event of any question, be determined
jointly by the firm of certified public accountants regularly employed
by the Corporation and a firm of certified public accountants selected
by the Executive, in each case upon the advice of actuaries to the
extent the certified public accountants consider necessary, and, in the
event such two firms of accountants are unable to agree on a resolution
of the question, such amount shall be determined by an
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independent firm of certified public accountants selected jointly by
both firms of accountants.
The third-party stakeholder, the fees and expenses of which
shall be paid by the Corporation, shall be a national or state bank or
trust company having a combined capital, surplus and undivided profits
and reserves of not less than Ten Million Dollars ($10,000,000) which is
duly authorized and qualified to do business in the state in which the
Executive resides at the time of such default.
(f) BENEFITS ARE IN ADDITION TO SUPPLEMENTAL RETIREMENT ANNUITY. Any
provision of this Agreement to the contrary notwithstanding, the payments,
benefits, service credit for benefits and other matters provided by this Section
5, including without limitation Section 5(a) above, in the event of a
Termination, are in addition to any payments, benefits, service credit for
benefits and other matters provided by Section 3(j) above relating to a
supplemental retirement annuity that may apply in such event.
6 NON-EXCLUSIVITY OF RIGHTS.
Except as provided in Sections 5(a)(ii), 5(b) and 5(c) above, nothing in
this Agreement shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided by the
Corporation or any of its Affiliated Companies and for which the Executive may
qualify, nor shall anything herein limit or otherwise affect such rights as the
Executive may have under any contract or agreement entered into after the date
hereof with the Corporation or any of its Affiliated Companies. Amounts which
are vested benefits or which the Executive is otherwise entitled to receive
under any plan, policy, practice or program of, or any contract or agreement
entered into after the date hereof with, the Corporation or any of its
Affiliated Companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement.
7 FULL SETTLEMENT.
The Corporation's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Corporation may have against the Executive or others. In no
event shall the Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to the Executive under
any of the provisions of this Agreement and, except as provided in Section
5(a)(iii) above, such amounts shall not be reduced whether or not the Executive
obtains other employment.
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8 GOLDEN PARACHUTE TAX PAYMENTS.
(a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or distribution involving a
change of control of the Corporation, by the Corporation or any other person or
entity, to or for the benefit of the Executive (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required
under this Section 8) (a "Payment") would be subject to the excise tax imposed
by Section 4999 of the Code (or any successor provision) or any interest or
penalties are incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") from the
Corporation in an amount such that, after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) All calculations and determinations required to be made under
this Section 8, including whether and when a Gross-Up Payment is required and
the amount of such Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by Price Waterhouse (or any
successor thereto by merger or operation of law) (the "Accounting Firm"). In the
event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the change of control, the Executive shall
appoint another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Corporation. Any Gross-Up Payment, as determined pursuant
to this Section 8, shall be paid by the Corporation to the Executive within five
days of the receipt of the Accounting Firm's determination. If the Accounting
Firm determines that no Excise Tax is payable by the Executive, it shall furnish
the Executive with a written opinion that failure to report the Excise Tax on
the Executive's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon the Corporation and the Executive.
(c) The Executive shall promptly notify the Corporation in writing
of any claim by the Internal Revenue Service that, if successful, would require
the payment by the Corporation of the Gross-Up Payment.
The Corporation shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in
21
<PAGE> 27
connection with such claim and shall indemnify and hold the Executive harmless,
on an after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 8(c), the Corporation shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and sue for a refund or to contest
the claim in any permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Corporation
shall determine; PROVIDED, HOWEVER, that if the Corporation directs the
Executive to pay such claim and sue for a refund, the Corporation shall advance
the amount of such payment to the Executive, on an interest-free basis and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance. Furthermore, the Corporation's control of the contest
shall be limited to issues with respect to which a Gross-Up Payment would be
payable hereunder and the Executive shall be entitled to settle or contest, as
the case may be, any other issue raised by the Internal Revenue Service or any
other taxing authority.
9 CONFIDENTIAL INFORMATION.
(a) The Executive agrees not to disclose, either while in the
Corporation's employ or at any time thereafter, to any person not employed by
the Corporation, or not engaged to render services to the Corporation, except
with the prior written consent of an officer authorized to act in the matter by
the Board of Directors of the Corporation, any confidential information obtained
by him while in the employ of the Corporation, including, without limitation,
information relating to any of the Corporation's inventions, processes,
formulae, plans, devices, compilations of information, methods of distribution,
customers, client relationships, marketing strategies or trade secrets;
PROVIDED, HOWEVER, that this provision shall not preclude the 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
Corporation or from disclosure required by law or Court order. The agreement
herein made in this Section 9(a) shall be in addition to, and not in limitation
or derogation of, any obligations otherwise imposed by law upon the Executive in
respect of confidential information and trade secrets of the Corporation, its
Subsidiaries and Affiliates.
(b) The Executive also agrees that upon leaving the Corporation's
employ he will not take with him, without the prior written consent of an
officer authorized to act in the matter by
22
<PAGE> 28
the Board of Directors of the Corporation, and he will surrender to the
Corporation any record, list, drawing, blueprint, specification or other
document or property of the Corporation, its Subsidiaries and Affiliates,
together with any copy and reproduction thereof, mechanical or otherwise, which
is of a confidential nature relating to the Corporation, its Subsidiaries and
Affiliates, or, without limitation, relating to its or their methods of
distribution, client relationships, marketing strategies or any description of
any formulae or secret processes, or which was obtained by him or entrusted to
him during the course of his employment with the Corporation.
10 COMPETITION.
(a) Subject to the provisions of Section 5(e) above relating to
resolution of disputes, there shall be no obligation on the part of the
Corporation to make any further payments provided for in Section 3(j) above
relating to payment of a supplemental retirement annuity, if the Executive
shall, during the period that such payments are being made or benefits provided,
engage in Competition with the Corporation as hereinafter defined, provided all
of the following shall have taken place:
(i) the Secretary of the Corporation, pursuant to resolution of
the Board of Directors of the Corporation, shall have given written
notice to the Executive that, in the opinion of the Board of Directors,
the Executive is engaged in such Competition, specifying the details;
(ii) the Executive shall have been given a reasonable
opportunity upon reasonable notice to appear before and to be heard by
the Board of Directors prior to the determination of the Board evidenced
by such resolution;
(iii) the Executive shall neither have ceased to engage in such
Competition within thirty days from his receipt of such notice nor
diligently taken all reasonable steps to that end during such thirty-day
period and thereafter.
Notwithstanding any provision to the contrary contained herein, in the
event of a Termination, as defined in Section 5(a) above, this Section 10(a)
shall not apply following a Change of Control.
(b) The Executive agrees in addition to the provisions relating to
Competition set forth in Section 10(a) above that he will not engage in
Competition at any time (i) during the Employment Period, and (ii) except in the
event of a Termination, during the thirty-six (36) months immediately following
the termination of his employment with the Corporation.
23
<PAGE> 29
(c) The word "Competition" for the purposes of this Agreement shall
mean
(i) taking a management position with or control of a business
engaged in the design, development, manufacture, marketing or
distribution of products, which constituted 15% or more of the sales of
the Corporation and its Subsidiaries and Affiliates during the last
fiscal year of the Corporation preceding the termination of the
Executive's employment, in any geographical area in which the
Corporation, its Subsidiaries or Affiliates is at the time engaging in
the design, development, manufacture, marketing or distribution of such
products; PROVIDED, however, that in no event shall ownership of less
than 5% of the outstanding capital stock entitled to vote for the
election of directors of a corporation with a class of equity securities
held of record by more than 500 persons, standing alone, be deemed
Competition with the Corporation within the meaning of this Section 10,
(ii) soliciting any person who is a customer of the businesses
conducted by the Corporation, or any business in which the Executive has
been engaged on behalf of the Corporation and its Subsidiaries or
Affiliates at any time during the term of this Agreement on behalf of a
business described in clause (i) of this Section 10,
(iii) inducing or attempting to persuade any employee of the
Corporation or any of its Subsidiaries or Affiliates to terminate his
employment relationship in order to enter into employment with a
business described in clause (i) of this Subsection 10(c), or
(iv) making or publishing any statement which is, or may
reasonably be considered to be, disparaging of the Corporation or any of
its Subsidiaries or Affiliates, or directors, officers, employees or the
operations or products of the Corporation or any of its Subsidiaries or
Affiliates, except to the extent the Executive, during the Employment
Period, makes the statement to employees or other representatives of the
Corporation or any of its Subsidiaries or Affiliates in furtherance of
the Corporation's business and the performance of his services
hereunder.
11 SUCCESSORS.
Except as otherwise provided herein,
(a) This Agreement shall be binding upon and shall inure to the
benefit of the Executive, his heirs and legal representatives, and the
Corporation and its successors as provided in this Section 11.
24
<PAGE> 30
(b) This Agreement shall be binding upon and inure to the benefit of
the Corporation and any successor of the Corporation, including, without
limitation, any corporation or corporations acquiring, directly or indirectly,
50% or more of the outstanding securities of the Corporation, or all or
substantially all of the assets of the Corporation, whether by merger,
consolidation, sale or otherwise (and such successor shall thereafter be deemed
embraced within the term "the Corporation" for the purposes of this Agreement),
but shall not otherwise be assignable by the Corporation.
12 CERTAIN DEFINITIONS.
The following defined terms used in this Agreement shall have the
meanings indicated:
(a) BENEFICIARY. The term "Beneficiary" as used in this Agreement
shall, in the event of the death of the Executive, mean an individual or
individuals and/or an entity or entities, including, without limitation, the
Executive's estate, duly designated on a form filed with the Corporation by the
Executive to receive any amount that may be payable after his death or, if no
such individual, individuals, entity or entities has or have been so designated,
or is at the time in existence or able to receive any such amount, the
Executive's estate.
(b) CHANGE OF CONTROL. A "Change of Control" shall be deemed to have
occurred if the event set forth in any one of the following paragraphs shall
have occurred:
(i) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Corporation (not including in
the securities Beneficially Owned by such Person any securities
acquired directly from the Corporation or its Affiliates)
representing 20% or more of the combined voting power of the
Corporation's then outstanding securities, excluding any Person
who becomes such a Beneficial Owner in connection with a
transaction described in clause (1) of paragraph (iii) below; or
(ii) the following individuals cease for any reason to
constitute a majority of the number of directors then serving:
individuals who, on the date hereof, constitute the Board and
any new director whose appointment or election by the Board or
nomination for election by the Corporation's stockholders was
approved or recommended by a vote of at least two-thirds (2/3)
of the directors then still in office who either were directors
on the date hereof or whose appointment, election or nomination
for election was previously so approved or recommended. For
purposes of the preceding sentence, any director whose initial
assumption of office is in connection with an actual or
threatened election contest, including but not limited to a
consent solicitation, relating to the
25
<PAGE> 31
election of directors of the Corporation, shall not be counted;
or
(iii) there is consummated a merger or consolidation of the
Corporation or any direct or indirect Subsidiary of the
Corporation with any other corporation, other than (1) a merger
or consolidation which would result in the voting securities of
the Corporation outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity or any parent thereof) at least 50% of the
combined voting power of the securities of the Corporation or
such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, or (2) a merger
or consolidation effected to implement a recapitalization of the
Corporation (or similar transaction) in which no Person is or
becomes the Beneficial Owner, directly or indirectly, of
securities of the Corporation (not including in the securities
Beneficially Owned by such Person any securities acquired
directly from the Corporation or its Affiliates) representing
20% or more of the combined voting power of the Corporation's
then outstanding securities; or
(iv) the stockholders of the Corporation approve a plan of
complete liquidation or dissolution of the Corporation or there
is consummated an agreement for the sale or disposition by the
Corporation of all or substantially all of the Corporation's
assets, other than a sale or disposition by the Corporation of
all or substantially all of the Corporation's assets to an
entity, at least 50% of the combined voting power of the voting
securities of which are owned by stockholders of the Corporation
in substantially the same proportions as their ownership of the
Corporation immediately prior to such sale.
"Beneficial Owner" shall have the meaning set forth in Rule 13d-3 under the
Exchange Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from
time to time.
"Person" shall have the meaning given in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d) and 14(d) thereof, except that such term
shall not include (i) the Corporation or any of its Subsidiaries, (ii) a trustee
or other fiduciary holding securities under an employee benefit plan of the
Corporation or any of its Affiliates, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities or (iv) a corporation
owned, directly or indirectly, by the stockholders of the Corporation in
substantially the same proportions as their ownership of stock of the
Corporation.
26
<PAGE> 32
(c) CHANGE OF CONTROL DATE. The "Change of Control Date" shall mean
the first date on which a Change of Control occurs. Anything in this Agreement
to the contrary notwithstanding, if a Change of Control occurs and if the
Executive's employment with the Corporation is terminated or the Executive
ceases to have the position with the Corporation set forth in Section 2(a) above
prior to the date on which the Change of Control occurs, and if it is reasonably
demonstrated by the Executive that such termination or cessation (i) was at the
request of a third party who has taken steps reasonably calculated to effect the
Change of Control or (ii) otherwise arose in connection with or anticipation of
the Change of Control, then for all purposes of this Agreement the "Change of
Control Date" shall mean the date immediately prior to the date of such
termination or cessation.
(d) CHANGE OF CONTROL PERIOD. The "Change of Control Period" shall
mean the period commencing on the Change of Control Date and ending on the last
day of the Employment Period.
13 AMENDMENT OR MODIFICATION; WAIVER
No provision of this Agreement may be amended, modified or waived unless
such amendment, modification or waiver shall be authorized by the Board of
Directors of the Corporation or any authorized committee of the Board of
Directors and shall be agreed to in writing, signed by the Executive and by an
officer of the Corporation thereunto duly authorized. Except as otherwise
specifically provided in this Agreement, no waiver by either party hereto of any
breach by the other party hereto of any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of a subsequent
breach of such condition or provision or a waiver of a similar or dissimilar
provision or condition at the same time or at any prior or subsequent time.
14 MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio, without reference to principles of conflict
of laws. The captions of this Agreement are not part of the provisions hereof
and shall have no force or effect.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive: Copy to:
- -------------------- --------
Mr. Joe M. Magliochetti Mr. Joe M. Magliochetti
c/o Dana Corporation 3846 Sulphur Springs Road
4500 Dorr Street Toledo, Ohio 43606
Toledo, Ohio 43615
27
<PAGE> 33
If to the Corporation:
- ----------------------
Dana Corporation
4500 Dorr Street
Toledo, Ohio 43615
Attention: Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Corporation may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as it determines is required to be
withheld pursuant to any applicable law or regulation.
(e) When used herein in connection with plans, programs and policies
relating to the Executive, employees, compensation, benefits, perquisites,
executive benefits, services and similar words and phrases, the word
"Corporation" shall be deemed to include all wholly-owned Subsidiaries of the
Corporation.
(f) This instrument contains the entire agreement of the parties
concerning the subject matter, and all promises, representations,
understandings, arrangements and prior agreements concerning the subject matter
are merged herein and superseded hereby, including, without limitation, the
agreements between the parties dated December 10, 1990 and December 14, 1992.
(g) No right, benefit or interest hereunder, shall be subject to
anticipation, alienation, sale, assignment, encumbrance, charge, pledge,
hypothecation, or set-off in respect of any claim, debt or obligation, or to
execution, attachment, levy or similar process, or assignment by operation of
law. Any attempt, voluntary or involuntary, to effect any action specified in
the immediately preceding sentence shall, to the full extent permitted by law,
be null, void and of no effect.
(h) The Executive shall not have any right, title, or interest
whatsoever in or to any investments which the Corporation may make to aid it in
meeting its obligations under this Agreement.
(i) Subject to the provisions of Section 5(e) above, all payments to
be made under this Agreement shall be paid from the general funds of the
Corporation and no special or separate fund shall be established and no
segregation of assets shall be made to assure payment of amounts payable under
this Agreement.
28
<PAGE> 34
(j) The Corporation and the Executive recognize that each party will
have no adequate remedy at law for breach by the other of any of the agreements
contained in this Agreement and, in the event of any such breach, the
Corporation and the Executive hereby agree and consent that the other shall be
entitled to a decree of specific performance, mandamus or other appropriate
remedy to enforce performance of such agreements.
(k) Subject to the provisions of Section 5(e) above, nothing
contained in this Agreement shall create or be construed to create a trust of
any kind, or a fiduciary relationship between the Corporation and the Executive
or any other person.
(l) Subject to the provisions of Section 5(e) above, to the extent
that any person acquires a right to receive payments from the Corporation under
this Agreement, except to the extent provided by law such right shall be no
greater than the right of an unsecured general creditor of the Corporation.
(m) In the event of the Executive's death or a judicial
determination of his incompetence, reference in this Agreement to the Executive
shall be deemed, where appropriate, to refer to his legal representative or,
where appropriate, to his Beneficiary.
(n) If any event provided for in this Agreement is scheduled to take
place on a legal holiday, such event shall take place on the next succeeding day
that is not a legal holiday.
29
<PAGE> 35
IN WITNESS WHEREOF, the Executive and, pursuant to due authorization
from its Board of Directors, the Corporation have caused this Agreement to be
executed as of the day and year first above written.
DANA CORPORATION
By: /s/ Southwood J. Morcott
-------------------------
Name: Southwood J. Morcott
Title: Chairman of the Board
By: /s/ Southwood J. Morcott
-------------------------
Chairman of the
Compensation Committee
Attest:
Assistant Secretary
Martin J. Strobel
/s/ Joe M. Magliochetti
-----------------------
Executive
<PAGE> 36
Exhibit AExhibit A to Agreement made as of December 8, 1997
between Dana Corporation and Joe M. Magliochetti
------------------------------------------------
As of December 8, 1997, for purposes of Section 2(a),
the office(s) and title(s) of the Executive are President and Chief
Operating Officer of the Corporation;
the reporting responsibility of the Executive is to report
directly to the Chairman of the Board of Directors of the Corporation; and the
duties and responsibilities of the Executive are:
Through the chairmanship of the World Operating Committee, provides direction
for the Corporation's worldwide operations. Major activities include planning
and review of operating results for, and organizational development to insure
profitability of, worldwide operations. The World Operating Committee executes
and monitors the corporate style, marketing strategies, policies and goals that
the Corporation's various strategic business units and various world regions are
responsible for in their performance. Serves as a member of the Policy Committee
which sets the corporate style, strategies, policies and goals that business
operations of the Corporation are responsible for in their performance. Performs
such other duties as may be prescribed by the Chairman and Chief Executive
Officer of the Corporation.
<PAGE> 1
EXHIBIT 10-J(3)
EMPLOYMENT AGREEMENT
BETWEEN
DANA CORPORATION
AND
MARTIN J. STROBEL
DATED DECEMBER 8, 1997
<PAGE> 2
TABLE OF CONTENTS
SECTION PAGE
------- ----
Recitals.....................................................................1
1. Employment and Term......................................................1
2. Position and Duties of the Executive.....................................2
(a) Position........................................................2
(b) Duties..........................................................3
(c) Location of Office..............................................4
3. Compensation.............................................................4
(a) Salary..........................................................4
(b) Additional Compensation.........................................4
(c) Incentive, Stock and Savings Plans..............................5
(d) Retirement and Welfare Benefit Plans............................5
(e) Expenses........................................................6
(f) Fringe Benefits.................................................6
(g) Office and Support Staff........................................6
(h) Vacation and Other Absences.....................................7
(i) Benefits Shall Not Be Reduced Under Certain Circumstances.......7
(j) Supplemental Retirement Annuity.................................8
4. Termination of Employment...............................................11
(a) Death or Disability............................................11
(b) Cause..........................................................12
(c) Good Reason....................................................14
(d) Notice of Termination..........................................15
(e) Date of Termination............................................16
5. Obligations of the Corporation Upon Termination.........................16
(a) Termination Other Than for Cause...............................16
(b) Termination On or After Change of Control......................19
(c) Cause; Other Than for Good Reason..............................19
(d) Death or Disability............................................20
(e) Resolution of Disputes.........................................20
(i) Right of Election by Executive to Arbitrate or Sue....20
(ii) Third-Party Stakeholder...............................21
(f) Benefits are in Addition to Supplemental Retirement Annuity....22
6. Non-exclusivity of Rights...............................................22
7. Full Settlement.........................................................22
8. Golden Parachute Tax Payments...........................................23
<PAGE> 3
9. Confidential Information................................................24
10. Competition.............................................................25
11. Successors..............................................................27
12. Certain Definitions.....................................................27
(a) Beneficiary....................................................28
(b) Change of Control..............................................28
(c) Change of Control Date.........................................30
(d) Change of Control Period.......................................30
13. Amendment or Modification; Waiver......................................30
<PAGE> 4
DEFINED TERMS
-------------
DEFINED TERMS* SECTION PAGE
- -------------- ------- ----
Accounting Firm 8(b) 23
Accrued Obligation 5(a)(i)(3) 16
ACP 3(b) 5
Affiliate 2(a) 3
Affiliated Company 3(a) 4
Agreement Introduction 1
Annual Base Salary 3(a) 4
Annual Bonus 3(b) 4
Beneficiary 12(a) 28
Board 3(a) 4
Cause 4(b) 12
Change of Control 12(b) 28
Change of Control Date 12(c) 30
Change of Control Period 12(d) 30
Code 5(a)(ii) 17
Competition 10(c) 26
Corporation Introduction 1
11(b) 27
14(e) 31
Date of Termination 4(e) 16
Disability 4(a)(ii) 12
Disability Effective Date 4(a)(ii) 12
Employment Period 1(a) 1
Excise Tax 8(a) 23
Executive Introduction 1
Gross-Up Payment 8(a) 23
- --------
*Each listed term is intended to include both the singular and plural form
of the term.
<PAGE> 5
DEFINED TERMS
-------------
DEFINED TERMS* SECTION PAGE
- -------------- ------- ----
Highest Average Monthly Compensation 3(j)(v) 11
Notice of Termination 4(d) 15
Other Benefits 5(a)(v) 19
Payment 8(a) 23
Pension and Retirement Program of the Corporation 3(j)(vi) 11
Renewal Date 1(c) 2
Service 3(j)(vii) 11
Subsidiary 2(a) 3
Target Annual Bonus 3(b) 5
Terminal Date 1(b) 1
Termination 5(a) 16
Termination Period 5(a)(ii) 17
Welfare Benefit Continuation 5(a)(iii) 18
- ---------------
*Each listed term is intended to include both the singular and plural form
of the term.
<PAGE> 6
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement")
made and entered into as of this 8th day of December, 1997, by and between DANA
CORPORATION, a Virginia corporation whose principal place of business is located
at 4500 Dorr Street, Toledo, Ohio (the "Corporation"), and Martin J. Strobel
(the "Executive");
WHEREAS, the Executive is a principal executive officer of the
Corporation and an integral part of its management; and
WHEREAS, the Corporation wishes to assure itself of the
continuing services of the Executive and to assure the Executive of continued
employment during the period of employment hereunder; and
WHEREAS, the Executive is willing to commit himself to remain
in the employ of the Corporation during such period on terms and conditions
substantially similar to those on which other senior executive officers of the
Corporation are employed, and to forego opportunities elsewhere during such
period; and
WHEREAS, the parties have entered into an Agreement dated
December 14, 1992, as amended from time to time thereafter (the "Prior
Agreement"); and
WHEREAS, the parties wish to amend and restate the Prior
Agreement in its entirety;
NOW, THEREFORE, IN CONSIDERATION of the mutual promises,
covenants and agreements set forth below, it is hereby agreed as follows:
1. EMPLOYMENT AND TERM.
(a) The Corporation agrees to continue the employment of the
Executive, and the Executive agrees to remain in the employ of the Corporation,
in accordance with the terms and provisions of this Agreement, for the period
set forth below (the "Employment Period").
(b) The Employment Period under this Agreement shall commence
as of December 8, 1997, and, subject only to the provisions of Section 4 below
relating to termination of employment, shall continue until (i) the close of
business on December 31, 2000 or (ii) such later date as shall result from the
operation of subparagraph (c) below (the "Terminal Date").
<PAGE> 7
(c) Commencing on December 31, 1998, and on each anniversary
of such date (such date and each such annual anniversary thereof, the "Renewal
Date") the Terminal Date set forth in subparagraph (b) above shall be extended
so as to occur three (3) years from the Renewal Date unless either party shall
have given notice to the other party that the Terminal Date is not to be
extended or further extended.
2. POSITION AND DUTIES OF THE EXECUTIVE.
(a) POSITION. It is contemplated that during the Change of
Control Period (as defined in Section 12(d), below), the Executive will continue
to serve as a principal officer of the Corporation and as a member of its Board
of Directors if serving as a member of the Board of Directors immediately prior
to the Change of Control Date, with the office(s) and title(s), reporting
responsibility, and duties and responsibilities of the Executive immediately
prior to the Change of Control Date. The Executive hereby agrees that at any
time prior to the Change of Control Date, the Board of Directors of the
Corporation (or the individual to whom the Executive reports) may, without the
Executive's consent, change the Executive's office(s), title(s), reporting
responsibility, and duties or responsibilities.
The office(s), title(s), reporting responsibility, duties and
responsibilities of the Executive on the date of this Agreement, as the same may
be changed from time to time after the date of this Agreement in accordance with
the provisions of the previous paragraph, shall be summarized in Exhibit A to
this Agreement, it being understood and agreed that if, as and when the
office(s), title(s), reporting responsibility, duties or responsibilities of the
Executive shall be so changed after the date of this Agreement, Exhibit A shall
be deemed to be, and shall be updated by the parties to reflect such change;
PROVIDED, HOWEVER, that Exhibit A is intended only as a memorandum for the
convenience of the parties and shall be disregarded if, and to the extent that,
Exhibit A shall fail to reflect accurately the office(s), title(s), reporting
responsibility, duties or responsibilities of the Executive as so changed after
the date of this Agreement because the parties shall have failed to update
Exhibit A as aforesaid.
At all times during the Change of Control Period, the
Executive shall hold a position of responsibility and importance and a position
of scope, with the functions, duties and responsibilities attached thereto, at
least equal in responsibility and importance and in scope to and commensurate
with his position described in general terms above in this
<PAGE> 8
Section 2(a) and intended to be summarized in Exhibit A to this Agreement.
During the Employment Period the Executive shall, without
compensation other than that herein provided, also serve and continue to serve,
if and when elected and re-elected, as an officer or director, or both, of any
United States Subsidiary, division or Affiliate of the Corporation.
For all purposes of this Agreement, (i) a Subsidiary shall
mean a corporation or other entity, of which 50% or more of the voting
securities or other equity interests is owned directly, or indirectly through
one or more intermediaries, by the Corporation, and (ii) an Affiliate shall mean
a corporation or other entity which is not a Subsidiary and which directly, or
indirectly, through one or more intermediaries, controls, or is controlled by,
or is under common control with, the Corporation. For the purpose of this
definition, the terms "control," "controls" and "controlled" mean the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a corporation or other entity, whether through
the ownership of voting securities, by contract, or otherwise.
(b) DUTIES. Throughout the Employment Period the Executive
shall devote his full time and undivided attention during normal business hours
to the business and affairs of the Corporation except for reasonable vacations
and except for illness or incapacity, but nothing in this Agreement shall
preclude the Executive from devoting reasonable periods required for:
(i) serving as a director or member of a committee or
any organization involving no conflict of interest with the interests
of the Corporation;
(ii) delivering lectures, fulfilling speaking
engagements, teaching at educational institutions;
(iii) engaging in charitable and community
activities; and
(iv) managing his personal investments;
provided that such activities do not materially interfere with the regular
performance of his duties and responsibilities under this Agreement.
(c) LOCATION OF OFFICE. During the Change of Control Period,
the office of the Executive shall be located
<PAGE> 9
at the principal offices of the Corporation, within the greater Toledo, Ohio
area, and the Executive shall not be required to locate his office elsewhere
without his prior written consent, nor shall he be required to be absent
therefrom on travel status or otherwise more than thirty (30%) of the working
days in any calendar year nor for more than ten (10) consecutive days at any one
time.
3. COMPENSATION.
The Executive shall receive the following compensation for his
services:
(a) SALARY. So long as the Executive is employed by the
Corporation, he shall be paid an annual base salary, payable not less often than
monthly, at the rate of not less than $32,500 per month with such increases as
shall be awarded from time to time in accordance with the Corporation's regular
administrative practices of other salary increases applicable to executives of
the Corporation, subject to any and all required withholdings and deductions for
Social Security, income taxes and the like (the "Annual Base Salary"). The Board
of Directors of the Corporation (the "Board") may from time to time direct such
upward adjustments to Annual Base Salary as the Board deems to be necessary or
desirable; PROVIDED, HOWEVER, that during the Change of Control Period (as
defined in Section 12(d) below), the Annual Base Salary shall be reviewed at
least annually and shall be increased at any time and from time to time but not
less often than annually and shall be substantially consistent with increases in
base salary generally awarded in the ordinary course of business to other senior
executives of the Corporation and its Affiliated Companies (a term which, as
used in this Agreement, shall mean a Subsidiary or Affiliate of the Corporation)
and, in addition, shall be adjusted effective as of January lst of each calendar
year commencing in the Change of Control Period to reflect increases in the cost
of living during the preceding calendar year. Annual Base Salary shall not be
reduced after any increase thereof pursuant to this Section 3(a). Any increase
in Annual Base Salary shall not serve to limit or reduce any other obligation of
the Corporation under this Agreement.
(b) ADDITIONAL COMPENSATION. So long as the Executive is
employed by the Corporation, he shall be eligible to receive annual short-term
incentive awards or bonuses (such award or bonus is hereinafter referred to as
"Short-Term Award" or "Annual Bonus") from the Dana Corporation Additional
Compensation Plan, and from any successor or replacement plan (the Dana
Corporation Additional Compensation Plan and such successor or replacement plans
being referred to herein
<PAGE> 10
collectively as the "ACP"), in accordance with the terms thereof; PROVIDED,
HOWEVER, that, with respect to each fiscal year of the Corporation ending during
the Change of Control Period, the Executive shall be awarded (whether under the
terms of the ACP or otherwise) an Annual Bonus in an amount that shall not be
less than fifty percent (50%) of his Annual Base Salary rate in effect on the
last day of such fiscal year (which amount shall be prorated if such fiscal year
shall be less than 12 months) (the "Target Annual Bonus"). Each Annual Bonus
shall be paid no later than the end of the third month of the fiscal year next
following the fiscal year for which the Annual Bonus is awarded, unless the
receipt of such Annual Bonus is deferred in accordance with the terms of the
ACP.
(c) INCENTIVE, STOCK AND SAVINGS PLANS. So long as the
Executive is employed by the Corporation, he shall be and continue to be a full
participant in the Dana Corporation 1997 Stock Option Plan, the ACP (providing
for Short-Term Awards) and in any and all other incentive, stock, savings or
retirement plans, practices or policies in which executives of the Corporation
participate that are in effect on the date hereof and that may hereafter be
adopted, including, without limitation, any stock option, stock purchase or
stock appreciation plans, or any successor plans that may be adopted by the
Corporation with, except in the case of the ACP after the commencement of the
Change of Control Period, at least the same reward opportunities, if any, that
have heretofore been provided to the Executive. Nothing in this Agreement shall
preclude improvement of reward opportunities in such plans or other plans in
accordance with the practice of the Corporation on or after the date of this
Agreement. Any provision of the ACP or of this Agreement to the contrary
notwithstanding, any Short-Term Awards made to the Executive during the Change
of Control Period (whether for services rendered prior to or after the Change of
Control Date) shall be paid wholly in cash as soon as practicable after the
awards are made.
(d) RETIREMENT AND WELFARE BENEFIT PLANS. The Executive, his
dependents and Beneficiary, including, without limitation, any beneficiary of a
joint and survivor or other optional method of payment applicable to the payment
of benefits under the Pension and Retirement Program of the Corporation, as
defined in Section 3(j)(vi) below, shall be entitled to all payments and
benefits and service credit for benefits during the Employment Period to which
other senior executives of the Corporation, their dependents and their
beneficiaries are entitled under the terms of employee retirement and welfare
benefit plans and practices of the Corporation, including, without limitation,
the Pension and Retirement Program of the Corporation (as defined in Section
3(j)(vi) below), the Corporation's Savings and Investment
<PAGE> 11
Plan, its Stock Purchase Plan, its Stock Award Plan, its Income Protection Plan
for Management and Certain Other Employees providing layoff and severance
benefits, its 1989 Restricted Stock Plan, its Excess Benefits Plan, its
Supplemental Benefits Plan, its death benefit plans (consisting of its Group
Insurance Plan for Management Employees providing life insurance, accidental
death and dismemberment insurance, and travel accident insurance), its
disability benefit plans (consisting of its salary continuation, sickness and
accident and long-term disability benefits programs), its medical, dental and
health and welfare plans and other present or equivalent successor plans and
practices of the Corporation, its Subsidiaries and divisions, for active and
retired employees, for which officers, their dependents and beneficiaries, are
eligible, and to all payments or other benefits under any such plan or practice
subsequent to the Employment Period as a result of participation in such plan or
practice during the Employment Period.
(e) EXPENSES. So long as the Executive is employed by the
Corporation, he shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by the Executive in accordance with the polices,
practices and procedures of the Corporation and its Affiliated Companies from
time to time in effect, commensurate with his position and on a basis at least
comparable to that of other senior executives of the Corporation.
(f) FRINGE BENEFITS. So long as the Executive is employed by
the Corporation, he shall be entitled to fringe benefits, including, without
limitation, the business and personal use of an automobile, and payment or
reimbursement of club initiation fees and dues, in accordance with the plans,
practices, programs and policies of the Corporation and its Affiliated Companies
from time to time in effect, commensurate with his position and at least
comparable to those received by other senior executives of the Corporation.
(g) OFFICE AND SUPPORT STAFF. So long as the Executive is
employed by the Corporation, he shall be entitled to an office or offices of a
size and with furnishings and other appointments, and to exclusive personal
secretarial and other assistance, commensurate with his position and at least
comparable to those received by other senior executives of the Corporation.
(h) VACATION AND OTHER ABSENCES. So long as the Executive is
employed by the Corporation, he shall be entitled to paid vacation and such
other paid absences whether for holidays, illness, personal time or any similar
purposes, in accordance with the plans, policies, programs and practices of
<PAGE> 12
the Corporation and its Affiliated Companies in effect from time to time,
commensurate with his position and at least comparable to those received by
other senior executives of the Corporation.
(i) BENEFITS SHALL NOT BE REDUCED UNDER CERTAIN CIRCUMSTANCES.
Nothing in this Agreement shall preclude the Corporation from amending or
terminating any employee benefit or welfare plan or practice, but, it being the
intent of the parties that the Executive shall continue to be entitled during
the Employment Period to perquisites as set forth in this Section 3 and to
benefits and service credit for benefits under Section 3(d) above at least equal
to those attached to his position on December 21, 1981, the date of the original
agreement between the parties, and except as provided in the last sentence of
this Section 3(i), nothing in this Agreement shall operate or be construed to
reduce, or authorize a reduction without the Executive's written consent in, the
level of such perquisites, benefits or service credit for benefits; in the event
of any such reduction, by amendment or termination of any plan or practice or
otherwise, the Executive, his dependents and Beneficiary, shall continue to be
entitled to perquisites, benefits and service credit for benefits at least equal
to the perquisites, benefits and service credit for benefits under such plans or
practices that he or his dependents and Beneficiary would have received if such
reduction had not taken place. If and to the extent that such perquisites,
benefits and service credits are not payable or provided under any such plans or
practices by reason of such amendment or termination thereof, the Corporation
itself shall pay or provide therefor. Notwithstanding the foregoing provisions
of this Section 3(i), the Executive hereby waives the benefit of the foregoing
minimum benefit protection only as it applies to the Dana Corporation Savings
and Investment Plan, and to its medical, dental and health plans for active and
retired employees. The Executive expressly does not waive the application of the
foregoing minimum benefit protection to any of the other benefit plans, programs
or practices enumerated in Section 3 above, including, without limitation, the
Pension and Retirement Program of the Corporation (including the lump sum
discount factor in effect on December 21, 1981), its death benefit plans, its
disability benefit plans, and its Income Protection Plan for Management and
Certain Other Employees. The Executive reserves the right to cancel the above
waiver, prospectively, at any future time by giving written notice to the
Corporation of such cancellation. Nothing in this Section 3(i) shall be
construed to prohibit the Corporation from amending or terminating any employee
benefit or welfare plan or practice to reduce benefits, so long as such
reduction applies to all salaried Corporation employees covered by such plan or
practice equally and such
<PAGE> 13
reduction is adopted prior to the commencement of the Change of Control Period.
(j) SUPPLEMENTAL RETIREMENT ANNUITY.
(i) If the Service of the Executive, including,
without limitation, the period set forth in Section 5(a)(iv)(2) below,
relating to the period between the Date of Termination and the end of
the Termination Period, shall terminate other than for death or Cause
as defined in Section 4(b) below, and if the Executive shall have a
total of not less than fifteen (15) years of Service, as defined in
subparagraph (vii) of this Section 3(j), whether or not consecutive,
the Executive, subject to compliance with the provisions of Sections 9
and 10 below, relating to confidential information and Competition,
respectively, shall be entitled to the supplemental retirement annuity
provided by this Section 3(j) in addition to all other benefits to
which the Executive may be entitled including, without limitation,
benefits under the Pension and Retirement Program of the Corporation.
Notwithstanding the foregoing provisions of this paragraph, the
Executive shall not be entitled to receive the supplemental retirement
annuity provided by this Section 3(j) if his Service shall terminate
prior to his attainment of age 55 and prior to the Change of Control
Date.
Such supplemental retirement annuity shall be payable by the
Corporation on a straight life annuity basis commencing on the first day of the
month coinciding with or next following the latest of
(1) termination of Service;
(2) attainment by the Executive of age 55; and
(3) if the Executive had not previously retired with 15 years
or more of Service, the expiration of the Employment
Period;
and continuing on the first day of each month thereafter during his lifetime.
(ii) The monthly payment provided for in Section
3(j)(i) above shall be equal to fifty percent (50%) (or if higher, the
percentage which is the product of 1.6% multiplied by the Executive's
Credited Service at retirement, as such Credited Service is determined
by application of the definition of Credited Service under the Dana
Corporation Retirement Plan), of the Executive's
<PAGE> 14
Highest Average Monthly Compensation, as defined in Section 3(j)(v),
less the sum of
(1) commencing at the earliest date that it could be
payable on or after termination of Service, the
aggregate monthly retirement benefit payable to the
Executive for life on a straight life annuity basis
under the Pension and Retirement Program of the
Corporation to the extent attributable to
contributions of the Corporation, its Subsidiaries
and Affiliates;
(2) commencing at the earliest date that it could be
payable on or after termination of Service, the
aggregate monthly retirement or disability benefit
payable to the Executive for life on a straight life
annuity basis following his retirement from
employment by the Corporation, its Subsidiaries and
Affiliates, to the extent attributable to
contributions other than by the Executive under
pension or retirement plans of all corporations,
organizations or entities other than the Corporation,
its Subsidiaries and Affiliates;
(3) commencing at the earliest date payable on or after
termination of Service, 50% of the monthly primary
Social Security benefit that would be or would have
been payable to the Executive in the absence of any
compensation that may at the time be or have been
earned by him; and
(4) commencing at the earliest date payable on or after
termination of Service and continuing until no longer
payable, the aggregate monthly disability benefit
payable to the Executive under disability benefit
plans and pension plans of the Corporation, its
Subsidiaries and Affiliates to the extent
attributable to contributions of the Corporation, its
Subsidiaries and Affiliates.
(iii) The Executive may elect to receive payment of
the supplemental retirement annuity provided by this Section 3(j),
under a joint and survivor or any other optional method of payment
available under the Dana Corporation Retirement Plan, including,
without limitation, any deferment in the time of payment thereof. The
amount of the benefit payable pursuant to any form of payment under
this Section 3(j) shall be determined by
<PAGE> 15
applying the mortality assumptions, interest rates, and other factors
contained in the Dana Corporation Retirement Plan that would be
applicable to the form of payment elected by the Executive (subject,
however, to any actuarial factor that may apply as a result of the
operation of Section 3(i)); PROVIDED THAT, if a lump sum distribution
is made hereunder, the amount of the lump sum distribution shall be
actuarially equivalent to the monthly benefit prescribed by Section
3(j)(ii), calculated using the basis described in subparagraph (1) or
(2), below, whichever produces the larger lump sum amount:
(1) the lump sum amount calculated on the basis of the
"applicable interest rate" (as in effect for the
November preceding the calendar year in which the
calculation is made) and the "applicable mortality
table," both as defined in Section 417(e) of the
Internal Revenue Code; or
(2) the lump sum amount calculated on the basis of the
actuarial equivalent factor used to convert the
Executive's Earned Benefit Account into a life
annuity under the Dana Corporation Retirement Plan at
the time the calculation is made, subject to any lump
sum discount factor that might apply as a result of
the operation of Section 3(i) of this Agreement.
If it is determined that the Executive is subject to federal income
taxation on an amount in respect of the supplemental retirement annuity
prior to the distribution of all of such amount to him, the Corporation
shall forthwith pay to the Executive all (or the balance) of such
amount as is includable in the Executive's federal gross income and
correspondingly reduce future payments, if any, of the supplemental
retirement annuity.
(iv) In the event that the Corporation defaults in
payment of all or any part of the supplemental retirement annuity
provided above in this Section 3(j) and fails to remedy such default
within thirty days after having received notice from the Executive or
his Beneficiary, the Corporation shall thereupon pay to the Executive
or his Beneficiary, as the case may be, in full discharge of its
obligations under this Section 3(j), (1) a lump sum amount actuarially
equivalent (based on the same assumptions and discount factors as would
be applicable under the Dana Corporation Retirement Plan) to the future
payments otherwise payable under this Section 3(j), and (2) an amount
equal to any and all past due payments under this Section 3(j).
<PAGE> 16
(v) The term "Highest Average Monthly Compensation"
shall mean the sum of (1) one-twelfth (1/12) of the Annual Base Salary
provided in Section 3(a) at the rate being paid at the time the
Executive's termination of employment occurred, and (2) one-twelfth
(1/12) of the average of the highest Annual Bonuses payable to the
Executive for any three (3) consecutive full or partial fiscal years
during his employment by the Corporation, PROVIDED, HOWEVER, that with
respect to 1994 and subsequent years' Annual Bonuses, only that portion
of the Employee's Annual Bonus as does not exceed 125% of his Annual
Base Salary will be considered.
(vi) The term "Pension and Retirement Program of the
Corporation" shall mean the Dana Corporation Retirement Plan, the Dana
Corporation Excess Benefits Plan, the Dana Corporation Supplemental
Benefits Plan, and any other supplemental, early retirement and similar
plan or plans of the Corporation, its Subsidiaries and Affiliates,
providing for pension or retirement benefits that may be applicable to
the Executive and that are in effect on the date hereof or may
hereafter be adopted or substituted for any such plan, but exclusive of
the Dana Corporation Savings and Investment Plan and any similar plan
or plans.
(vii) The term "Service" shall mean employment as an
employee by the Corporation, any Subsidiary or Affiliate thereof or any
corporation the capital stock or assets of which have been acquired by,
or which has been merged into or consolidated with the Corporation or
any Subsidiary or Affiliate thereof.
4. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY.
(i) The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period.
(ii) If the Corporation determines in good faith that
the Disability (as defined below) of the Executive has occurred during
the Employment Period, it may give to the Executive written notice in
accordance with Section 14(b) below of its intention to terminate the
Executive's employment. In such event, the Employment Period shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), PROVIDED, that within the
30
<PAGE> 17
days after such receipt, the Executive shall not have returned to
full-time performance of the Executive's duties. For purposes of this
Agreement, "Disability" shall mean the absence of the Executive from
the Executive's duties with the Corporation on a full-time basis for
180 consecutive business days as a result of incapacity due to mental
or physical illness which is determined to be total and permanent by a
physician selected by the Corporation or its insurers and acceptable to
the Executive or the Executive's legal representative (such agreement
as to acceptability not to be withheld unreasonably).
(b) CAUSE. The Corporation may terminate the Executive's
employment during the Employment Period for Cause. For purposes of this
Agreement, the termination of the Executive's employment shall be deemed to have
been for "Cause" only
(i) if termination of his employment shall have been
the result of his conviction of, or plea of guilty or nolo contendere
to, the charge of having committed a felony (whether or not such
conviction is later reversed for any reason), or
(ii) if there has been a breach by the Executive
during the Employment Period of the provisions of Section 2(b),
relating to the time to be devoted to the affairs of the Corporation,
or of Section 9, relating to confidential information, and such breach
results in demonstrably material injury to the Corporation, and, with
respect to any alleged breach of Section 2(b) hereof, the Executive
shall have either failed to remedy such alleged breach within thirty
days from his receipt of written notice from the Secretary of the
Corporation pursuant to resolution duly adopted by the Board of
Directors of the Corporation after notice to the Executive and an
opportunity to be heard demanding that he remedy such alleged breach,
or shall have failed to take all reasonable steps to that end during
such thirty-day period and thereafter;
PROVIDED, that there shall have been delivered to the Executive a certified copy
of a resolution of the Board of Directors of the Corporation adopted by the
affirmative vote of not less than three-fourths of the entire membership of the
Board of Directors called and held for that purpose and at which the Executive
was given an opportunity to be heard, finding that the Executive was guilty of
conduct set forth in subparagraph (i) or (ii) above, specifying the particulars
thereof in detail.
<PAGE> 18
Anything in this Section 4(b) or elsewhere in this Agreement
to the contrary notwithstanding, the employment of the Executive shall in no
event be considered to have been terminated by the Corporation for Cause if
termination of his employment took place
(1) as the result of bad judgment or negligence on the
part of the Executive, or
(2) because of an act or omission believed by the
Executive in good faith to have been in or not
opposed to the interests of the Corporation, or
(3) for any act or omission in respect of which a
determination could properly be made that the
Executive met the applicable standard of conduct
prescribed for indemnification or reimbursement or
payment of expenses under (A) the Bylaws of the
Corporation, or (B) the laws of the State of
Virginia, or (C) the directors' and officers'
liability insurance of the Corporation, in each case
either as in effect at the time of this Agreement or
in effect at the time of such act or omission, or
(4) as the result of an act or omission which occurred
more than twelve calendar months prior to the
Executive's having been given notice of the
termination of his employment for such act or
omission unless the commission of such act or such
omission could not at the time of such commission or
omission have been known to a member of the Board of
Directors of the Corporation (other than the
Executive, if he is then a member of the Board of
Directors), in which case more than twelve calendar
months from the date that the commission of such act
or such omission was or could reasonably have been so
known, or
(5) as the result of a continuing course of action which
commenced and was or could reasonably have been known
to a member of the Board of Directors of the
Corporation (other than the Executive, if he is then
a member of the Board of Directors) more than twelve
calendar months prior to notice having been given to
the Executive of the termination of his employment.
(c) GOOD REASON. Following a Change of Control (as defined in
Section 12(b) below), the Executive may terminate
<PAGE> 19
his employment for Good Reason. For purposes of this Agreement, "Good Reason"
shall mean the occurrence after the Change of Control Date of any of the
following events:
(i) Failure to elect or reelect the Executive to the
Board of Directors of the Corporation, if the Executive shall have been
a member of the Board of Directors on the date of this Agreement or at
any time thereafter during the Employment Period, or failure to elect
or reelect the Executive to, or removal of the Executive from, the
office(s) described in Section 2(a) above and intended to be summarized
in Exhibit A to this Agreement.
(ii) A significant change in the nature or scope of
the authorities, powers, functions or duties attached to the position
described in Section 2 above and intended to be summarized in Exhibit A
to this Agreement, or a reduction in compensation, which is not
remedied within 30 days after receipt by the Corporation of written
notice from the Executive.
(iii) A determination by the Executive made in good
faith that as a result of a Change of Control, and a change in
circumstances thereafter and since the date of this Agreement
significantly affecting his position, he is unable to carry out the
authorities, powers, functions or duties attached to his position and
contemplated by Section 2 of this Agreement and the situation is not
remedied within 30 days after receipt by the Corporation of written
notice from the Executive of such determination.
(iv) A breach by the Corporation of any provision of
this Agreement not embraced within the foregoing clauses (i), (ii) and
(iii) of this Section 4(c) which is not remedied within 30 days after
receipt by the Corporation of written notice from the Executive.
(v) The liquidation, dissolution, consolidation or
merger of the Corporation or transfer of all or a significant portion
of its assets unless a successor or successors (by merger,
consolidation or otherwise) to which all or a significant portion of
its assets have been transferred shall have assumed all duties and
obligations of the Corporation under this Agreement but without
releasing the corporation that is the original party to this Agreement;
PROVIDED, that in any event set forth in this Section 4(c), the Executive shall
have elected to terminate his employment
<PAGE> 20
under this Agreement, upon not less than ten and not more than ninety days'
advance written notice to the Corporation, attention of the Secretary, given,
except in the case of a continuing breach, within three calendar months after
(A) failure to be so elected or reelected, or removal, (B) expiration of the
thirty-day cure period with respect to such event, or (C) the closing date of
such liquidation, dissolution, consolidation, merger or transfer of assets, as
the case may be.
An election by the Executive to terminate his employment given
under the provisions of this Section 4(c) shall not be deemed a voluntary
termination of employment by the Executive for the purpose of this Agreement or
any plan or practice of the Corporation.
(d) NOTICE OF TERMINATION. Any termination by the Corporation
for Cause, or by the Executive for Good Reason, shall be communicated by Notice
of Termination to the other party hereto given in accordance with Section 14(b)
below. For purposes of this Agreement, a "Notice of Termination" means a written
notice which
(i) indicates the specific termination provision in
this Agreement relied upon,
(ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision
so indicated and
(iii) if the Date of Termination (as defined in
Section 4(e) below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than
fifteen days after the giving of such notice).
(e) DATE OF TERMINATION. "Date of Termination" means
(i) if the Executive's employment is terminated by
the Corporation for Cause, or by the Executive for Good Reason, the
date of receipt of the Notice of Termination or any later date
specified therein, as the case may be,
(ii) if the Executive's employment is terminated by
the Corporation other than for Cause or Disability, the Date of
Termination shall be the date on which the Corporation notifies the
Executive of such termination and
<PAGE> 21
(iii) if the Executive's employment is terminated by
reason of death or Disability, the Date of Termination shall be the
date of death of the Executive or the Disability Effective Date, as the
case may be.
5 OBLIGATIONS OF THE CORPORATION UPON TERMINATION.
(a) TERMINATION OTHER THAN FOR CAUSE. If, during the
Employment Period, the Corporation shall terminate the Executive's employment
other than for Cause or the Executive shall terminate his employment following a
Change of Control for Good Reason (termination in any such case referred to as
"Termination"):
(i) the Corporation shall pay the Executive in a
lump sum in cash within 30 days after the Date of Termination the sum
of
(1) the Executive's Annual Base Salary through the Date
of Termination to the extent not theretofore paid,
(2) the product of (x) the Target Annual Bonus and (y) a
fraction, the numerator of which is the number of
days in the current fiscal year through the Date of
Termination, and the denominator of which is 365, and
(3) any compensation previously deferred by the Executive
(together with any accrued interest or earnings
thereon) and any accrued vacation pay, in each case
to the extent not theretofore paid (the sum of the
amounts described in clauses (1), (2), and (3) shall
be hereinafter referred to as the "Accrued
Obligations"); and
(ii) at the end of the month next following the
Termination, and at the end of each month thereafter until the earliest
of the end of the Employment Period, three years following the Date of
Termination, or until the Executive shall attain the age of 65 years,
but in no event beyond the end of the month in which the death of the
Executive shall have occurred or the end of the sixth month following
the Disability Effective Date (such period to be called the
"Termination Period"), the Corporation shall pay to the Executive an
amount equal to the Highest Average Monthly Compensation; PROVIDED,
HOWEVER, that such amount shall be reduced by any other amounts payable
to the Executive in respect of salary or bonus continuation to be
received by the Executive under any severance plan, policy or
arrangement of
<PAGE> 22
the Corporation; and, PROVIDED, FURTHER, that if the Date of
Termination occurs on or after the occurrence of a Change of Control,
such amount shall be paid as a lump-sum within 30 days following the
Date of Termination, such lump-sum calculated based upon the present
value (within the meaning of Section 28OG(d)(4) of the Internal Revenue
Code of 1986 as amended (the "Code")) of the payments which would be
made absent the Change of Control; and
(iii) During the Termination Period, or such longer
period as any plan, program, practice or policy may provide, the
Corporation shall continue benefits to the Executive and/or the
Executive's family at least equal to those which would have been
provided to them in accordance with the plans, programs, practices and
policies described in Section 3(d) above if the Executive's employment
had not been terminated in accordance with the most favorable plans,
practices, programs or policies of the Corporation and its Affiliated
Companies as in effect and applicable generally to other senior
executives of the Corporation and its Affiliated Companies and their
families during the 90-day period immediately preceding the Date of
Termination or, if more favorable to the Executive, as in effect at any
time thereafter or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other senior
executives of the Corporation and its Affiliated Companies and their
families, PROVIDED, HOWEVER, that if the Executive becomes reemployed
with another employer and is eligible to receive medical or other
welfare benefits under another employer-provided plan, the medical and
other welfare benefits described herein shall be secondary to those
provided under such other plan during such applicable period of
eligibility (such continuation of such benefits for the applicable
period herein set forth shall be hereinafter referred to as "Welfare
Benefit Continuation"). For purposes of determining eligibility of the
Executive for retiree benefits pursuant to such plans, practices,
programs and policies, the Executive shall be considered to have
remained employed until the end of the Termination Period and to have
retired on the date of the end of the Termination Period. To the extent
that any benefits referred to in this Section 5(a)(iii) shall not be
payable or provided under any such plan by reason of the Executive's no
longer being an employee of the Corporation as the result of
Termination, the Corporation shall itself pay, or provide for payment
of, such benefits and the service credit for benefits provided for in
Section 5(a)(iv)
<PAGE> 23
below, to the Executive, his dependents and Beneficiary; and
(iv) The period from the Date of Termination until
the end of the Termination Period shall be considered:
(1) Service with the Corporation for the purpose of
continued credits under the employee benefit plans
referred to in Section 3(d) above and all other
benefit plans of the Corporation applicable to the
Executive or his Beneficiary as in effect immediately
prior to Termination but prior to any reduction of
benefits thereunder as the result of amendment or
termination during the Employment Period;
(2) Service within the meaning of Section 3(j) (vii)
above for purposes of Section 3(j) above; and
(3) Employment with the Corporation for purposes of
determining payments and other rights in respect of
awards made or accrued and award opportunities
granted prior to Termination under the executive
incentive plans referred to in Section 3(c) above and
all other incentive plans of the Corporation in which
the Executive was a participant prior to Termination;
and
(v) to the extent not theretofore paid or provided,
the Corporation shall timely pay or provide to the Executive and/or the
Executive's family any other amounts or benefits required to be paid or
provided or which the Executive and/or the Executive's family is
eligible to receive pursuant to this Agreement and under any plan,
program, policy or practice or contract or agreement of the Corporation
and its Affiliated Companies as in effect and applicable generally to
other senior executives of the Corporation and its Affiliated Companies
and their families during the 90-day period immediately preceding the
Date of Termination or, if more favorable to the Executive, as in
effect generally thereafter with respect to other senior executives of
the Corporation and its Affiliated Companies and their families (such
other amounts and benefits shall be referred to below as the "Other
Benefits").
(b) TERMINATION ON OR AFTER CHANGE OF CONTROL. If Termination
shall have occurred coincidental with a Change of Control or during the Change
of Control Period, any provision
<PAGE> 24
of Section 5(a)(iv) above or of the ACP to the contrary notwithstanding, upon
such Termination, the Corporation shall pay or distribute to the Executive on an
accelerated basis, to the extent, if any, not theretofore accelerated, any and
all outstanding Short-Term Awards, or installments thereof, under the ACP that
shall have been awarded to the Executive prior to Termination and deferred for
payment subsequent to termination of employment, with any such accelerated
payment based on the value, determined in accordance with such plan (or
successor plan), of such awards or installments (and any increments thereon) on
the Termination Date, and such accelerated payment or distribution shall
constitute a complete discharge of the Corporation's obligation in respect of
the Short-Term Awards so paid or distributed.
(c) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's
employment shall be terminated for Cause during the Employment Period, the
Corporation shall have no further obligations to the Executive under this
Agreement other than the obligation to pay the Executive's Annual Base Salary,
any compensation previously deferred by the Executive (together with any accrued
interest or earnings thereon), and accrued vacation pay through the Date of
Termination, in each case to the extent not theretofore paid, and any other
amounts or benefits to which the Executive and/or the Executive's family is
otherwise entitled under the terms of any employee benefit or incentive plan of
the Corporation. If the Executive terminates employment during the Employment
Period, excluding a termination for Good Reason following a Change of Control,
the Corporation shall have no further obligations to the Executive, other than
to pay the Executive's Annual Base Salary, any compensation previously deferred
by the Executive (together with any accrued interest or earnings thereon), and
accrued vacation pay through the termination date, in each case to the extent
not theretofore paid, any other benefits to which the Executive and/or the
Executive's family is otherwise entitled under the terms of any employee benefit
or incentive plan of the Corporation, and, if the Executive is otherwise
eligible under the provisions of Section 3(j) of this Agreement, he shall also
be entitled to receive the supplemental retirement annuity described in such
Section 3(j).
(d) DEATH OR DISABILITY.
(i) In the event of the death of the Executive during
the Employment Period, the legal representative of the Executive shall
be entitled to the compensation provided for in Sections 3(a) and 3(b)
above for the month in which death shall have taken place, at the rate
being paid at the time of death, and the Employment Period shall be
deemed to have ended as of the close
<PAGE> 25
of business on the last day of the month in which death shall have
occurred but without prejudice to any payments due in respect of the
Executive's death.
(ii) In the event of the Disability of the Executive
during the Employment Period, the Executive shall be entitled to the
compensation provided for in Sections 3(a) and 3(b) above, at the rate
being paid on the Disability Effective Date, for the period of such
Disability but not in excess of six months. The amount of any payments
due under this Section 5(d)(ii) shall be reduced by any payments to
which the Executive may be entitled for the same period because of
disability under any disability or pension plan of the Corporation or
of any Subsidiary or Affiliate thereof.
(e) RESOLUTION OF DISPUTES.
(i) RIGHT OF ELECTION BY EXECUTIVE TO ARBITRATE OR
SUE. In the event that the Executive's employment shall be terminated
by the Corporation during the Employment Period and such termination is
alleged to be for Cause, or the Executive's right to terminate his
employment under Section 4(c) above shall be questioned by the
Corporation, or the Corporation shall withhold payments or provision of
benefits for any other reason, the Executive shall have the right, in
addition to all other rights and remedies provided by law, at his
election either to seek arbitration within the Toledo, Ohio area under
the rules of the American Arbitration Association by serving a notice
to arbitrate upon the Corporation or to institute a judicial
proceeding, in either case within ninety days after having received
notice of termination of his employment or notice in any form that the
termination of his employment under Section 4(b) above is subject to
question or that the Corporation is withholding or proposes to withhold
payments or provision of benefits.
(ii) THIRD-PARTY STAKEHOLDER. In the event that the
Corporation defaults on any obligation set forth in Section 5(a) above,
relating to Termination, and shall have failed to remedy such default
within thirty (30) days after having received written notice of such
default from the Executive, in addition to all other rights and
remedies that the Executive may have as a result of such default, the
Executive may demand and the Corporation shall thereupon be required to
deposit, with the third-party stakeholder hereinafter described, an
amount equal to the undiscounted value of any and all undischarged,
future obligations of the Corporation under
<PAGE> 26
Section 5(a) above and such amount shall thereafter be held, paid,
applied or distributed by such third-party stakeholder for the purpose
of satisfying such undischarged, future obligations of the Corporation
when and to the extent that they become due and payable. Any interest
or other income on such amount shall be retained by the third-party
stakeholder and applied, if necessary, by it to satisfy such
obligations, PROVIDED, HOWEVER, that any interest or other income that
is earned on such undischarged, future obligations after the date that
the third-party stakeholder determines, in its sole discretion, that
such obligations are due and owing to the Executive, shall be paid to
the Executive as earned. To the extent not theretofore expended, such
amount (including any remaining unexpended interest or other income)
shall be repaid to the Corporation at such time as the third-party
stakeholder, in its sole discretion, reasonably exercised, determines,
upon the advice of counsel and after consultation with the Corporation
and the Executive or, in the event of his death, his Beneficiary, that
all obligations of the Corporation under Section 5(a) above have been
substantially satisfied.
Such amount shall, in the event of any question, be
determined jointly by the firm of certified public accountants
regularly employed by the Corporation and a firm of certified public
accountants selected by the Executive, in each case upon the advice of
actuaries to the extent the certified public accountants consider
necessary, and, in the event such two firms of accountants are unable
to agree on a resolution of the question, such amount shall be
determined by an independent firm of certified public accountants
selected jointly by both firms of accountants.
The third-party stakeholder, the fees and expenses of
which shall be paid by the Corporation, shall be a national or state
bank or trust company having a combined capital, surplus and undivided
profits and reserves of not less than Ten Million Dollars ($10,000,000)
which is duly authorized and qualified to do business in the state in
which the Executive resides at the time of such default.
(f) BENEFITS ARE IN ADDITION TO SUPPLEMENTAL RETIREMENT
ANNUITY. Any provision of this Agreement to the contrary notwithstanding, the
payments, benefits, service credit for benefits and other matters provided by
this Section 5, including without limitation Section 5(a) above, in the event of
a Termination, are in addition to any payments, benefits, service credit for
benefits and other matters
<PAGE> 27
provided by Section 3(j) above relating to a supplemental retirement annuity
that may apply in such event.
6 NON-EXCLUSIVITY OF RIGHTS.
Except as provided in Sections 5(a)(ii), 5(b) and 5(c) above,
nothing in this Agreement shall prevent or limit the Executive's continuing or
future participation in any plan, program, policy or practice provided by the
Corporation or any of its Affiliated Companies and for which the Executive may
qualify, nor shall anything herein limit or otherwise affect such rights as the
Executive may have under any contract or agreement entered into after the date
hereof with the Corporation or any of its Affiliated Companies. Amounts which
are vested benefits or which the Executive is otherwise entitled to receive
under any plan, policy, practice or program of, or any contract or agreement
entered into after the date hereof with, the Corporation or any of its
Affiliated Companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement.
7 FULL SETTLEMENT.
The Corporation's obligation to make the payments provided for
in this Agreement and otherwise to perform its obligations hereunder shall not
be affected by any set-off, counterclaim, recoupment, defense or other claim,
right or action which the Corporation may have against the Executive or others.
In no event shall the Executive be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to the Executive
under any of the provisions of this Agreement and, except as provided in Section
5(a)(iii) above, such amounts shall not be reduced whether or not the Executive
obtains other employment.
8 GOLDEN PARACHUTE TAX PAYMENTS.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution involving a change of control of the Corporation, by the
Corporation or any other person or entity, to or for the benefit of the
Executive (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 8) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Code (or any successor
provision) or any interest or penalties are incurred by the Executive with
respect to such excise tax (such excise tax, together with any
<PAGE> 28
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") from the Corporation in an amount such that,
after payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any income
taxes (and any interest and penalties imposed with respect thereto) and Excise
Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(b) All calculations and determinations required to be made
under this Section 8, including whether and when a Gross-Up Payment is required
and the amount of such Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by Price Waterhouse (or any
successor thereto by merger or operation of law) (the "Accounting Firm"). In the
event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the change of control, the Executive shall
appoint another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Corporation. Any Gross-Up Payment, as determined pursuant
to this Section 8, shall be paid by the Corporation to the Executive within five
days of the receipt of the Accounting Firm's determination. If the Accounting
Firm determines that no Excise Tax is payable by the Executive, it shall furnish
the Executive with a written opinion that failure to report the Excise Tax on
the Executive's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon the Corporation and the Executive.
(c) The Executive shall promptly notify the Corporation in
writing of any claim by the Internal Revenue Service that, if successful, would
require the payment by the Corporation of the Gross-Up Payment.
The Corporation shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such claim and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 8(c), the Corporation shall control all proceedings taken in
connec-
<PAGE> 29
tion with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and sue for a refund or to contest the
claim in any permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Corporation
shall determine; PROVIDED, HOWEVER, that if the Corporation directs the
Executive to pay such claim and sue for a refund, the Corporation shall advance
the amount of such payment to the Executive, on an interest-free basis and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance. Furthermore, the Corporation's control of the contest
shall be limited to issues with respect to which a Gross-Up Payment would be
payable hereunder and the Executive shall be entitled to settle or contest, as
the case may be, any other issue raised by the Internal Revenue Service or any
other taxing authority.
9 CONFIDENTIAL INFORMATION.
(a) The Executive agrees not to disclose, either while in the
Corporation's employ or at any time thereafter, to any person not employed by
the Corporation, or not engaged to render services to the Corporation, except
with the prior written consent of an officer authorized to act in the matter by
the Board of Directors of the Corporation, any confidential information obtained
by him while in the employ of the Corporation, including, without limitation,
information relating to any of the Corporation's inventions, processes,
formulae, plans, devices, compilations of information, methods of distribution,
customers, client relationships, marketing strategies or trade secrets;
PROVIDED, HOWEVER, that this provision shall not preclude the 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
Corporation or from disclosure required by law or Court order. The agreement
herein made in this Section 9(a) shall be in addition to, and not in limitation
or derogation of, any obligations otherwise imposed by law upon the Executive in
respect of confidential information and trade secrets of the Corporation, its
Subsidiaries and Affiliates.
(b) The Executive also agrees that upon leaving the
Corporation's employ he will not take with him, without the
<PAGE> 30
prior written consent of an officer authorized to act in the matter by the Board
of Directors of the Corporation, and he will surrender to the Corporation any
record, list, drawing, blueprint, specification or other document or property of
the Corporation, its Subsidiaries and Affiliates, together with any copy and
reproduction thereof, mechanical or otherwise, which is of a confidential nature
relating to the Corporation, its Subsidiaries and Affiliates, or, without
limitation, relating to its or their methods of distribution, client
relationships, marketing strategies or any description of any formulae or secret
processes, or which was obtained by him or entrusted to him during the course of
his employment with the Corporation.
10 COMPETITION.
(a) Subject to the provisions of Section 5(e) above relating
to resolution of disputes, there shall be no obligation on the part of the
Corporation to make any further payments provided for in Section 3(j) above
relating to payment of a supplemental retirement annuity, if the Executive
shall, during the period that such payments are being made or benefits provided,
engage in Competition with the Corporation as hereinafter defined, provided all
of the following shall have taken place:
(i) the Secretary of the Corporation, pursuant to
resolution of the Board of Directors of the Corporation, shall have
given written notice to the Executive that, in the opinion of the Board
of Directors, the Executive is engaged in such Competition, specifying
the details;
(ii) the Executive shall have been given a reasonable
opportunity upon reasonable notice to appear before and to be heard by
the Board of Directors prior to the determination of the Board
evidenced by such resolution;
(iii) the Executive shall neither have ceased to
engage in such Competition within thirty days from his receipt of such
notice nor diligently taken all reasonable steps to that end during
such thirty-day period and thereafter.
Notwithstanding any provision to the contrary contained
herein, in the event of a Termination, as defined in Section 5(a) above, this
Section 10(a) shall not apply following a Change of Control.
(b) The Executive agrees in addition to the provisions
relating to Competition set forth in Section 10(a) above
<PAGE> 31
that he will not engage in Competition at any time (i) during the Employment
Period, and (ii) except in the event of a Termination, during the thirty-six
(36) months immediately following the termination of his employment with the
Corporation.
(c) The word "Competition" for the purposes of this Agreement
shall mean
(i) taking a management position with or control of a
business engaged in the design, development, manufacture, marketing or
distribution of products, which constituted 15% or more of the sales of
the Corporation and its Subsidiaries and Affiliates during the last
fiscal year of the Corporation preceding the termination of the
Executive's employment, in any geographical area in which the
Corporation, its Subsidiaries or Affiliates is at the time engaging in
the design, development, manufacture, marketing or distribution of such
products; PROVIDED, HOWEVER, that in no event shall ownership of less
than 5% of the outstanding capital stock entitled to vote for the
election of directors of a corporation with a class of equity
securities held of record by more than 500 persons, standing alone, be
deemed Competition with the Corporation within the meaning of this
Section 10,
(ii) soliciting any person who is a customer of the
businesses conducted by the Corporation, or any business in which the
Executive has been engaged on behalf of the Corporation and its
Subsidiaries or Affiliates at any time during the term of this
Agreement on behalf of a business described in clause (i) of this
Section 10,
(iii) inducing or attempting to persuade any employee
of the Corporation or any of its Subsidiaries or Affiliates to
terminate his employment relationship in order to enter into employment
with a business described in clause (i) of this Subsection 10(c), or
(iv) making or publishing any statement which is, or
may reasonably be considered to be, disparaging of the Corporation or
any of its Subsidiaries or Affiliates, or directors, officers,
employees or the operations or products of the Corporation or any of
its Subsidiaries or Affiliates, except to the extent the Executive,
during the Employment Period, makes the statement to employees or other
representatives of the Corporation or any of its Subsidiaries or
Affiliates in furtherance of the Corporation's business and the
performance of his services hereunder.
<PAGE> 32
11 SUCCESSORS.
Except as otherwise provided herein,
(a) This Agreement shall be binding upon and shall inure to
the benefit of the Executive, his heirs and legal representatives, and the
Corporation and its successors as provided in this Section 11.
(b) This Agreement shall be binding upon and inure to the
benefit of the Corporation and any successor of the Corporation, including,
without limitation, any corporation or corporations acquiring, directly or
indirectly, 50% or more of the outstanding securities of the Corporation, or all
or substantially all of the assets of the Corporation, whether by merger,
consolidation, sale or otherwise (and such successor shall thereafter be deemed
embraced within the term "the Corporation" for the purposes of this Agreement),
but shall not otherwise be assignable by the Corporation.
12 CERTAIN DEFINITIONS.
The following defined terms used in this Agreement shall have
the meanings indicated:
(a) BENEFICIARY. The term "Beneficiary" as used in this
Agreement shall, in the event of the death of the Executive, mean an individual
or individuals and/or an entity or entities, including, without limitation, the
Executive's estate, duly designated on a form filed with the Corporation by the
Executive to receive any amount that may be payable after his death or, if no
such individual, individuals, entity or entities has or have been so designated,
or is at the time in existence or able to receive any such amount, the
Executive's estate.
(b) CHANGE OF CONTROL. A "Change of Control" shall be deemed
to have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
(i) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Corporation (not including in
the securities Beneficially Owned by such Person any
securities acquired directly from the Corporation or its
Affiliates) representing 20% or more of the combined voting
power of the Corporation's then outstanding securities,
excluding any Person who becomes such a Beneficial Owner in
connection with a transaction described in clause (1) of
paragraph (iii) below; or
<PAGE> 33
(ii) the following individuals cease for any reason to
constitute a majority of the number of directors then serving:
individuals who, on the date hereof, constitute the Board and
any new director whose appointment or election by the Board or
nomination for election by the Corporation's stockholders was
approved or recommended by a vote of at least two-thirds (2/3)
of the directors then still in office who either were
directors on the date hereof or whose appointment, election or
nomination for election was previously so approved or
recommended. For purposes of the preceding sentence, any
director whose initial assumption of office is in connection
with an actual or threatened election contest, including but
not limited to a consent solicitation, relating to the
election of directors of the Corporation, shall not be
counted; or
(iii) there is consummated a merger or consolidation of the
Corporation or any direct or indirect Subsidiary of the
Corporation with any other corporation, other than (1) a
merger or consolidation which would result in the voting
securities of the Corporation outstanding immediately prior to
such merger or consolidation continuing to represent (either
by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof) at
least 50% of the combined voting power of the securities of
the Corporation or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation, or
(2) a merger or consolidation effected to implement a
recapitalization of the Corporation (or similar transaction)
in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Corporation (not
including in the securities Beneficially Owned by such Person
any securities acquired directly from the Corporation or its
Affiliates) representing 20% or more of the combined voting
power of the Corporation's then outstanding securities; or
(iv) the stockholders of the Corporation approve a plan of
complete liquidation or dissolution of the Corporation or
there is consummated an agreement for the sale or disposition
by the Corporation of all or substantially all of the
Corporation's assets, other than a sale or disposition by the
Corporation of all or substantially all of the Corporation's
assets to an entity, at least 50% of the combined voting power
of the voting securities of which are owned by
<PAGE> 34
stockholders of the Corporation in substantially the same
proportions as their ownership of the Corporation immediately
prior to such sale.
"Beneficial Owner" shall have the meaning set forth in Rule 13d-3 under the
Exchange Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from
time to time.
"Person" shall have the meaning given in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d) and 14(d) thereof, except that such term
shall not include (i) the Corporation or any of its Subsidiaries, (ii) a trustee
or other fiduciary holding securities under an employee benefit plan of the
Corporation or any of its Affiliates, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities or (iv) a corporation
owned, directly or indirectly, by the stockholders of the Corporation in
substantially the same proportions as their ownership of stock of the
Corporation.
(c) CHANGE OF CONTROL DATE. The "Change of Control Date" shall
mean the first date on which a Change of Control occurs. Anything in this
Agreement to the contrary notwithstanding, if a Change of Control occurs and if
the Executive's employment with the Corporation is terminated or the Executive
ceases to have the position with the Corporation set forth in Section 2(a) above
prior to the date on which the Change of Control occurs, and if it is reasonably
demonstrated by the Executive that such termination or cessation (i) was at the
request of a third party who has taken steps reasonably calculated to effect the
Change of Control or (ii) otherwise arose in connection with or anticipation of
the Change of Control, then for all purposes of this Agreement the "Change of
Control Date" shall mean the date immediately prior to the date of such
termination or cessation.
(d) CHANGE OF CONTROL PERIOD. The "Change of Control Period"
shall mean the period commencing on the Change of Control Date and ending on the
last day of the Employment Period.
13 AMENDMENT OR MODIFICATION; WAIVER.
No provision of this Agreement may be amended, modified or
waived unless such amendment, modification or waiver shall be authorized by the
Board of Directors of the Corporation or any authorized committee of the Board
of Directors and shall be agreed to in writing, signed by the Executive and by
an officer of the Corporation thereunto duly authorized.
<PAGE> 35
Except as otherwise specifically provided in this Agreement, no waiver by either
party hereto of any breach by the other party hereto of any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of a subsequent breach of such condition or provision or a waiver of a
similar or dissimilar provision or condition at the same time or at any prior or
subsequent time.
14 MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without reference to principles
of conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive: Copy to:
- -------------------- --------
Mr. Martin J. Strobel Mr. Martin J. Strobel
c/o Dana Corporation 4849 Corey Road
4500 Dorr Street Toledo, Ohio 43623
Toledo, Ohio 43615
If to the Corporation:
- ----------------------
Dana Corporation
4500 Dorr Street
Toledo, Ohio 43615
Attention: Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Corporation may withhold from any amounts payable
under this Agreement such Federal, state or local taxes as it determines is
required to be withheld pursuant to any applicable law or regulation.
(e) When used herein in connection with plans, programs and
policies relating to the Executive, employees,
<PAGE> 36
compensation, benefits, perquisites, executive benefits, services and similar
words and phrases, the word "Corporation" shall be deemed to include all
wholly-owned Subsidiaries of the Corporation.
(f) This instrument contains the entire agreement of the
parties concerning the subject matter, and all promises, representations,
understandings, arrangements and prior agreements concerning the subject matter
are merged herein and superseded hereby, including, without limitation, the
agreements between the parties dated December 21, 1981, December 10, 1990 and
December 14, 1992.
(g) No right, benefit or interest hereunder, shall be subject
to anticipation, alienation, sale, assignment, encumbrance, charge, pledge,
hypothecation, or set-off in respect of any claim, debt or obligation, or to
execution, attachment, levy or similar process, or assignment by operation of
law. Any attempt, voluntary or involuntary, to effect any action specified in
the immediately preceding sentence shall, to the full extent permitted by law,
be null, void and of no effect.
(h) The Executive shall not have any right, title, or interest
whatsoever in or to any investments which the Corporation may make to aid it in
meeting its obligations under this Agreement.
(i) Subject to the provisions of Section 5(e) above, all
payments to be made under this Agreement shall be paid from the general funds of
the Corporation and no special or separate fund shall be established and no
segregation of assets shall be made to assure payment of amounts payable under
this Agreement.
(j) The Corporation and the Executive recognize that each
party will have no adequate remedy at law for breach by the other of any of the
agreements contained in this Agreement and, in the event of any such breach, the
Corporation and the Executive hereby agree and consent that the other shall be
entitled to a decree of specific performance, mandamus or other appropriate
remedy to enforce performance of such agreements.
(k) Subject to the provisions of Section 5(e) above, nothing
contained in this Agreement shall create or be construed to create a trust of
any kind, or a fiduciary relationship between the Corporation and the Executive
or any other person.
<PAGE> 37
(l) Subject to the provisions of Section 5(e) above, to the
extent that any person acquires a right to receive payments from the Corporation
under this Agreement, except to the extent provided by law such right shall be
no greater than the right of an unsecured general creditor of the Corporation.
(m) In the event of the Executive's death or a judicial
determination of his incompetence, reference in this Agreement to the Executive
shall be deemed, where appropriate, to refer to his legal representative or,
where appropriate, to his Beneficiary.
(n) If any event provided for in this Agreement is scheduled
to take place on a legal holiday, such event shall take place on the next
succeeding day that is not a legal holiday.
IN WITNESS WHEREOF, the Executive and, pursuant to due
authorization from its Board of Directors, the Corporation have caused this
Agreement to be executed as of the day and year first above written.
DANA CORPORATION
By: /s/ Southwood J. Morcott
--------------------------
Name: Southwood J. Morcott
Title: Chairman of the Board
By: /s/ Theodore B. Sumner
--------------------------
Chairman of the
Compensation Committee
Attest:
Assistant Secretary
Sue A. Griffin
/s/ Martin J. Strobel
----------------------------
Executive
<PAGE> 38
Exhibit A to Agreement made as of December 8, 1997
between Dana Corporation and Martin J. Strobel
----------------------------------------------
As of December 8, 1997, for purposes of Section 2(a),
the office(s) and title(s) of the Executive are Vice
President, Secretary and General Counsel of the Corporation;
the reporting responsibility of the Executive is to report
directly to the Chairman of the Board of Directors and Chief Executive Officer
of the Corporation; and
the duties and responsibilities of the Executive are:
Directs all legal pursuits of the Corporation, including the
patent and trademark areas, to ensure that corporate
objectives are accomplished in accordance with applicable law.
Practices preventive law by providing advance legal advice and
counsel to management with respect to significant corporate
plans and endeavors. Functions as Corporate Secretary relative
to meetings of the Board of Directors and shareholders of the
Corporation. Major activities include: legal counsel and
negotiations respecting acquisitions, disposition,
international, antitrust matters, personnel/industrial
relations and employee benefits, handling claims by and
against the Corporation; monitoring compliance with policies
which may have legal implications, real property acquisitions
and dispositions, government regulations and reporting
requirements, retaining and supervising outside counsel
worldwide, and supervision of the Corporation's risk
management and affirmative action/EEO activities. Performs
such other duties as are commonly incident to the office of
Vice President, Secretary and General Counsel of the
Corporation or as may be prescribed by the Chairman of the
Board of Directors or Board of Directors of the Corporation.
Serves as a member of the World Operating Committee which
monitors business unit performance, implements product
strategies, and takes corrective action in the event of
non-performance in the areas of meeting financial goals and
implementation of market strategies, and insures interaction
between divisions and affiliates.
<PAGE> 1
EXHIBIT 10-J(4)
CHANGE OF CONTROL AGREEMENT
BETWEEN
DANA CORPORATION
AND
WILLIAM J. CARROLL
DATED DECEMBER 8, 1997
<PAGE> 2
TABLE OF CONTENTS
-----------------
SECTION PAGE
- ------- ----
Recitals.....................................................................1
OPERATION OF AGREEMENT; EMPLOYMENT AND TERM..................................6
POSITION AND DUTIES OF THE EXECUTIVE.........................................7
POSITION............................................................7
DUTIES..............................................................8
LOCATION OF OFFICE..................................................9
COMPENSATION.................................................................9
SALARY..............................................................9
ADDITIONAL COMPENSATION............................................10
INCENTIVE, STOCK AND SAVINGS PLANS.................................10
RETIREMENT AND WELFARE BENEFIT PLANS...............................10
EXPENSES...........................................................11
FRINGE BENEFITS....................................................11
OFFICE AND SUPPORT STAFF...........................................11
VACATION AND OTHER ABSENCES........................................11
BENEFITS SHALL NOT BE REDUCED UNDER CERTAIN CIRCUMSTANCES..........12
CERTAIN RETIREMENT AND SEVERANCE DEFINITIONS.......................13
TERMINATION OF EMPLOYMENT...................................................13
DEATH OR DISABILITY................................................13
CAUSE..............................................................14
GOOD REASON........................................................16
NOTICE OF TERMINATION..............................................17
DATE OF TERMINATION................................................17
OBLIGATIONS OF THE CORPORATION UPON TERMINATION.............................18
TERMINATION OTHER THAN FOR CAUSE...................................18
[intentionally left blank].........................................20
CAUSE; OTHER THAN FOR GOOD REASON..................................20
DEATH OR DISABILITY................................................20
RESOLUTION OF DISPUTES.............................................21
RIGHT OF ELECTION BY EXECUTIVE TO ARBITRATE OR SUE.................21
THIRD-PARTY STAKEHOLDER............................................21
NON-EXCLUSIVITY OF RIGHTS...................................................22
FULL SETTLEMENT.............................................................23
CONFIDENTIAL INFORMATION....................................................23
COMPETITION.................................................................24
SUCCESSORS..................................................................25
CERTAIN DEFINITIONS.........................................................25
<PAGE> 3
BENEFICIARY........................................................25
CHANGE OF CONTROL..................................................25
CHANGE OF CONTROL DATE.............................................27
CHANGE OF CONTROL PERIOD...........................................27
AMENDMENT OR MODIFICATION; WAIVER...........................................27
MISCELLANEOUS...............................................................28
Exhibit A....................................................................2
<PAGE> 4
DEFINED TERMS
-------------
DEFINED TERMS* SECTION PAGE
- -------------- ------- ----
Accrued Obligation 5(a)(i)(3) 12
ACP 3(b) 4
Affiliate 2(a)(v) 3
Affiliated Company 3(a) 4
Agreement Introduction 1
Annual Base Salary 3(a) 4
Annual Bonus 3(b) 4
Beneficiary 11(a) 19
Board 3(a) 4
Cause 4(b) 8
Change of Control 11(b) 19
Change of Control Date 11(c) 21
Change of Control Period 11(d) 21
Code 5(a)(ii) 13
Competition 9(b) 18
Corporation Introduction 1
11(b) 28
14(e) 31
Date of Termination 4(e) 12
Disability 4(a)(ii) 8
Disability Effective Date 4(a)(ii) 8
Employment Period 1(b) 1
Executive Introduction 1
- --------
*Each listed term is intended to include both the singular and plural form
of the term.
<PAGE> 5
DEFINED TERMS
-------------
DEFINED TERMS* SELECTION PAGE
-------------- --------- ----
Highest Average Monthly Compensation 3(j)(i) 7
Notice of Termination 4(d) 11
Pension and Retirement Program of the Corporation 3(j)(ii) 8
Renewal Date 1(d) 2
Service 3(j)(iii) 8
Subsidiary 2(a)(v) 3
Target Annual Bonus 3(b) 5
Terminal Date 1(c) 2
Termination 5(a) 12
Termination Period 5(a)(ii) 13
Welfare Benefit Continuation 5(a)(iii) 13
- --------------
*Each listed term is intended to include both the singular and plural form
of the term.
<PAGE> 6
THIS CHANGE OF CONTROL AGREEMENT (the "Agreement") made and
entered into as of this 8th day of December, 1997, by and between DANA
CORPORATION, a Virginia corporation whose principal place of business is located
at 4500 Dorr Street, Toledo, Ohio (the "Corporation"), and William J. Carroll
(the "Executive");
WHEREAS, the Executive is a principal executive officer of the
Corporation and an integral part of its management; and
WHEREAS, the Corporation wishes to assure both itself and the
Executive of continuity of management in the event of any actual or threatened
Change of Control of the Corporation; and
WHEREAS, this Agreement is not intended to alter materially
the compensation and benefits that the Executive could reasonably expect in the
absence of a Change of Control of the Corporation, and, accordingly, this
Agreement, though taking effect upon execution thereof, will be operative only
upon a Change of Control of the Corporation, as that term is hereafter defined;
NOW, THEREFORE, IN CONSIDERATION of the mutual promises,
covenants and agreements set forth below, it is hereby agreed as follows:
1. OPERATION OF AGREEMENT; EMPLOYMENT AND TERM.
(1) This Agreement shall be effective immediately upon its
execution by the parties hereto but, anything in this Agreement to the contrary
notwithstanding, neither the Agreement nor any provision thereof, except for
this Section 1(a), Section 1(d), Section 2(a)(ii), Section 10, Section 11(b),
Section 12, and Sections 13(a), (b), (c), (f), (n) and (o), shall be operative
unless and until there has been a Change of Control of the Corporation, as
defined in Section 11(b) below, prior to December 31, 2000 or such later date as
shall result from the operation of Section 1(d) below and while the Executive is
in the employ of the Corporation. Upon such a Change of Control of the
Corporation, this Agreement and all provisions thereof shall become operative
immediately.
(2) The Corporation hereby agrees to continue the employment
of the Executive, and the Executive hereby agrees to remain in the employ of the
Corporation, in accordance with the terms and provisions of this Agreement, for
the period set forth below (the "Employment Period").
<PAGE> 7
(3) The Employment Period under this Agreement shall commence
on the date this Agreement becomes operative pursuant to the provisions of
Sections 1(a) above and, subject only to the provisions of Section 4 below
relating to termination of employment, shall continue until (i) the close of
business on December 31, 2000 or (ii) such later date as shall result from the
operation of Section 1(d) below (the "Terminal Date"). In the event that the
Executive shall continue in the full-time employment of the Corporation after
the latter date, such continued employment shall be subject to the terms and
conditions of this Agreement and the Employment Period shall include the period
during which the Executive in fact so continues in such employment.
(4) Commencing on December 31, 1998, and on each anniversary
of such date (such date and each such annual anniversary thereof, the "Renewal
Date"), the Terminal Date set forth in Section 1(c) above shall be extended so
as to occur three (3) years from the Renewal Date unless either party shall have
given notice to the other party that the Terminal Date is not to be extended or
further extended.
2. POSITION AND DUTIES OF THE EXECUTIVE.
(1)POSITION.
(1) It is contemplated that during the Employment Period the
Executive will continue to serve as a principal officer of the
Corporation and as a member of its Board of Directors if serving as a
member of the Board of Directors immediately prior to a Change of
Control, as defined in Section 11(b) below, with the office(s) and
title(s), reporting responsibility and duties and responsibilities of
the Executive on the date of this Agreement, as the same may be changed
from time to time after the date of this Agreement and prior to the
date this Agreement becomes operative pursuant to the provisions of
Section 1(a) above.
(2) The office(s), title(s), reporting responsibility, duties
and responsibilities of the Executive on the date of this Agreement, as
the same may be changed from time to time after the date of this
Agreement and prior to the date this Agreement becomes operative
pursuant to the provisions of Section 1(a) above, shall be summarized
in Exhibit A to this Agreement, it being understood and agreed that if,
as when the office(s), title(s), reporting responsibility, duties and
responsibilities of the Executive shall be changed prior to the date
this Agreement becomes operative pursuant to the provisions of Section
1(a) above, Exhibit A shall be deemed to be and shall be updated by the
parties to reflect such change; PROVIDED, HOWEVER, that Exhibit A is
intended only as memorandum for the convenience of the parties and
shall be disregarded if and to the extent
<PAGE> 8
that, at the time this Agreement becomes operative, Exhibit A shall
fail to reflect accurately the office(s), title(s), reporting
responsibility, duties or responsibilities of the Executive at the time
because the parties shall have failed to update Exhibit A as aforesaid
after the last such change prior to the date this Agreement shall have
become operative.
(3) At all times during the Employment Period, the Executive
shall hold a position of responsibility and importance and a position
of scope, with the functions, duties and responsibilities attached
thereto, at least equal in responsibility and importance and in scope
to and commensurate with his position described in general terms above
in this Section 2(a) and intended to be summarized in Exhibit A to this
Agreement.
(4) During the Employment Period the Executive shall, without
compensation other than that herein provided, also serve and continue
to serve, if and when elected and re-elected, as an officer or
director, or both, of any United States Subsidiary, division or
Affiliate of the Corporation.
(5) For all purposes of this Agreement, (1) a Subsidiary shall
mean a corporation or other entity, of which 50% or more of the voting
securities or other equity interests is owned directly, or indirectly
through one or more intermediaries, by the Corporation, and (2) an
Affiliate shall mean a corporation or other entity which is not a
Subsidiary and which directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, the Corporation. For the purpose of this definition, the
terms "control", "controls" and "controlled" mean the possession,
direct or indirect, of the power to direct or cause the direction of
the management and policies of a corporation or other entity, whether
through the ownership of voting securities, by contract, or otherwise.
(2) DUTIES. Throughout the Employment Period the Executive
shall devote his full time and undivided attention during normal business hours
to the business and affairs of the Corporation except for reasonable vacations
and except for illness or incapacity, but nothing in this Agreement shall
preclude the Executive from devoting reasonable periods required for:
(1) serving as a director or member of a committee or
any organization involving no conflict of interest with the interests
of the Corporation;
<PAGE> 9
(2) delivering lectures, fulfilling speaking
engagements, teaching at educational institutions;
(3) engaging in charitable and community activities;
and
(4) managing his personal investments;
PROVIDED that such activities do not materially interfere with the regular
performance of his duties and responsibilities under this Agreement.
(3) LOCATION OF OFFICE. During the Change of Control Period,
the office of the Executive shall be located at the principal offices of the
Corporation, within the greater Toledo, Ohio area, and the Executive shall not
be required to locate his office elsewhere without his prior written consent,
nor shall he be required to be absent therefrom on travel status or otherwise
more than thirty (30%) of the working days in any calendar year nor for more
than ten (10) consecutive days at any one time.
3. COMPENSATION.
The Executive shall receive the following compensation for his
services:
(1) SALARY. So long as the Executive is employed by the
Corporation, he shall be paid an annual base salary, payable not less often than
monthly, at the rate of not less than $32,083.33 per month with such increases
as shall be awarded from time to time in accordance with the Corporation's
regular administrative practices of other salary increases applicable to
executives of the Corporation, subject to any and all required withholdings and
deductions for Social Security, income taxes and the like (the "Annual Base
Salary"). The Board of Directors of the Corporation (the "Board") may from time
to time direct such upward adjustments to Annual Base Salary as the Board deems
to be necessary or desirable; PROVIDED, HOWEVER, that during the Change of
Control Period (as defined in Section 11(d) below), the Annual Base Salary shall
be reviewed at least annually and shall be increased at any time and from time
to time but not less often than annually and shall be substantially consistent
with increases in base salary generally awarded in the ordinary course of
business to other senior executives of the Corporation and its Affiliated
Companies (a term which, as used in this Agreement, shall mean a Subsidiary or
Affiliate of the Corporation) and, in addition, shall be adjusted effective as
of January lst of each calendar year commencing in the Change of Control Period
to reflect increases in the cost of living during the preceding calendar year.
Annual Base Salary shall not be reduced after any increase thereof pursuant to
this Section 3(a). Any increase in Annual Base Salary shall not serve to limit
or reduce any other obligation of the Corporation under this Agreement.
<PAGE> 10
(2) ADDITIONAL COMPENSATION. So long as the Executive is
employed by the Corporation, he shall be eligible to receive annual short-term
incentive awards or bonuses (such award or bonus is hereinafter referred to as
"Short-Term Award" or "Annual Bonus") from the Dana Corporation Additional
Compensation Plan, and from any successor or replacement plan (the Dana
Corporation Additional Compensation Plan and such successor or replacement plans
being referred to herein collectively as the "ACP"), in accordance with the
terms thereof; PROVIDED, HOWEVER, that, with respect to each fiscal year of the
Corporation ending during the Change of Control Period, the Executive shall be
awarded (whether under the terms of the ACP or otherwise) an Annual Bonus in an
amount that shall not be less than fifty percent (50%) of his Annual Base Salary
rate in effect on the last day of such fiscal year (which amount shall be
prorated if such fiscal year shall be less than 12 months) (the "Target Annual
Bonus"). Each Annual Bonus shall be paid no later than the end of the third
month of the fiscal year next following the fiscal year for which the Annual
Bonus is awarded, unless the receipt of such Annual Bonus is deferred in
accordance with the terms of the ACP.
(3) INCENTIVE, STOCK AND SAVINGS PLANS. So long as the
Executive is employed by the Corporation, he shall be and continue to be a full
participant in the Dana Corporation 1997 Stock Option Plan, the ACP (providing
for Short-Term Awards) and in any and all other incentive, stock, savings or
retirement plans, practices or policies in which executives of the Corporation
participate that are in effect on the date hereof and that may hereafter be
adopted, including, without limitation, any stock option, stock purchase or
stock appreciation plans, or any successor plans that may be adopted by the
Corporation with, except in the case of the ACP after the commencement of the
Change of Control Period, at least the same reward opportunities, if any, that
have heretofore been provided to the Executive. Nothing in this Agreement shall
preclude improvement of reward opportunities in such plans or other plans in
accordance with the practices in effect on the first day of the calendar month
that this Agreement becomes operative. Any provision of the ACP or of this
Agreement to the contrary notwithstanding, any Short-Term Awards made to the
Executive (whether for services rendered prior to or after the date this
Agreement becomes operative) shall be paid wholly in cash as soon as practicable
after the awards are made.
(4) RETIREMENT AND WELFARE BENEFIT PLANS. The Executive, his
dependents and Beneficiary, including, without limitation, any beneficiary of a
joint and survivor or other optional method of payment applicable to the payment
of benefits under the Pension and Retirement Program of the Corporation, as
defined in Section 3(j)(ii) below, shall be entitled to all payments and
benefits and service credit for benefits during the Employment Period to which
other senior executives of the Corporation, their dependents and their
beneficiaries are entitled under the terms of employee retirement and welfare
benefit plans and practices of the Corporation, including, without limitation,
the Pension and Retirement Program of the Corporation (as defined in Section
3(j)(ii) below), the Corporation's Savings
<PAGE> 11
and Investment Plan, its Stock Purchase Plan, its Stock Award Plan, its Income
Protection Plan for Management and Certain Other Employees providing layoff and
severance benefits, its 1989 Restricted Stock Plan, its Excess Benefits Plan,
its Supplemental Benefits Plan, its death benefit plans (consisting of its Group
Insurance Plan for Management Employees providing life insurance, accidental
death and dismemberment insurance, and travel accident insurance), its
disability benefit plans (consisting of its salary continuation, sickness and
accident and long-term disability benefits programs), its medical, dental and
health and welfare plans and other present or equivalent successor plans and
practices of the Corporation, its Subsidiaries and divisions, for active and
retired employees, for which officers, their dependents and beneficiaries, are
eligible, and to all payments or other benefits under any such plan or practice
subsequent to the Employment Period as a result of participation in such plan or
practice during the Employment Period.
(5) EXPENSES. So long as the Executive is employed by the
Corporation, he shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by the Executive in accordance with the polices,
practices and procedures of the Corporation and its Affiliated Companies from
time to time in effect, commensurate with his position and on a basis at least
comparable to that of other senior executives of the Corporation.
(6) FRINGE BENEFITS. So long as the Executive is employed by
the Corporation, he shall be entitled to fringe benefits, including, without
limitation, the business and personal use of an automobile, and payment or
reimbursement of club initiation fees and dues, in accordance with the plans,
practices, programs and policies of the Corporation and its Affiliated Companies
from time to time in effect, commensurate with his position and at least
comparable to those received by other senior executives of the Corporation.
(7) OFFICE AND SUPPORT STAFF. So long as the Executive is
employed by the Corporation, he shall be entitled to an office or offices of a
size and with furnishings and other appointments, and to exclusive personal
secretarial and other assistance, commensurate with his position and at least
comparable to those received by other senior executives of the Corporation.
(8) VACATION AND OTHER ABSENCES. So long as the Executive is
employed by the Corporation, he shall be entitled to paid vacation and such
other paid absences whether for holidays, illness, personal time or any similar
purposes, in accordance with the plans, policies, programs and practices of the
Corporation and its Affiliated Companies in effect from time to time,
commensurate with his position and at least comparable to those received by
other senior executives of the Corporation.
<PAGE> 12
(9) BENEFITS SHALL NOT BE REDUCED UNDER CERTAIN CIRCUMSTANCES.
Nothing in this Agreement shall preclude the Corporation from amending or
terminating any employee benefit or welfare plan or practice, but, it being the
intent of the parties that the Executive shall continue to be entitled during
the Employment Period to perquisites as set forth in this Section 3 and to
benefits and service credit for benefits under Section 3(d) above at least equal
to those attached to his position on the date of this Agreement (except that, in
converting a monthly retirement benefit, which is payable under any plan that is
a component of the Pension and Retirement Program of the Corporation, into a
lump sum payment, the lump sum distribution shall be actuarially equivalent to
the monthly benefit provided under such Pension and Retirement Program,
calculated using the following basis, whichever produces a larger lump sum
amount: (x) the lump sum amount calculated on the basis of the "applicable
interest rate" (as in effect for the November preceding the calendar year in
which the calculation is made) and the "applicable mortality table", both as
defined in Section 417(e) of the Internal Revenue Code; or (y) the lump sum
amount calculated on the basis of the actuarial equivalent factor used to
convert the Executive's Earned Benefit Account into a life annuity under the
Dana Corporation Retirement Plan at the time the calculation was made), and
except as provided in the last sentence of this Section 3(i), nothing in this
Agreement shall operate or be construed to reduce, or authorize a reduction
without the Executive's written consent in, the level of such perquisites,
benefits or service credit for benefits; in the event of any such reduction, by
amendment or termination of any plan or practice or otherwise, the Executive,
his dependents and Beneficiary, shall continue to be entitled to perquisites,
benefits and service credit for benefits at least equal to the perquisites,
benefits and service credit for benefits under such plans or practices that he
or his dependents and Beneficiary would have received if such reduction had not
taken place. If and to the extent that such perquisites, benefits and service
credits are not payable or provided under any such plans or practices by reason
of such amendment or termination thereof, the Corporation itself shall pay or
provide therefor. Notwithstanding the foregoing provisions of this Section 3(i),
the Executive hereby waives the benefit of the foregoing minimum benefit
protection only as it applies to the Dana Corporation Savings and Investment
Plan, and to its medical, dental and health plans for active and retired
employees. The Executive expressly does not waive the application of the
foregoing minimum benefit protection to any of the other benefit plans, programs
or practices enumerated in Section 3 above, including, without limitation, the
Pension and Retirement Program of the Corporation, its death benefit plans, its
disability benefit plans, and its Income Protection Plan for Management and
Certain Other Employees. The Executive reserves the right to cancel the above
waiver, prospectively, at any future time by giving written notice to the
Corporation of such cancellation. Nothing in this Section 3(i) shall be
construed to prohibit the Corporation from amending or terminating any employee
benefit or welfare plan or practice to reduce benefits, so long as such
reduction applies to all salaried Corporation employees covered by such plan or
practice equally and such reduction is adopted prior to the commencement of the
Change of Control Period.
<PAGE> 13
(10) CERTAIN RETIREMENT AND SEVERANCE DEFINITIONS.
(1) The term "Highest Average Monthly Compensation"
shall mean the sum of (1) one-twelfth (1/12) of the Annual Base Salary
provided in Section 3(a) at the rate being paid at the time the
Executive's termination of employment occurred, and (2) one-twelfth
(1/12) of the average of the highest Annual Bonuses payable to the
Executive for any three (3) consecutive full or partial fiscal years
during his employment by the Corporation, PROVIDED, HOWEVER, that with
respect to 1994 and subsequent years' Annual Bonuses, only that portion
of the Employee's Annual Bonus as does not exceed 125% of his Annual
Base Salary will be considered.
(2) The term "Pension and Retirement Program of the
Corporation" shall mean the Dana Corporation Retirement Plan, the Dana
Corporation Excess Benefits Plan, the Dana Corporation Supplemental
Benefits Plan, and any other supplemental, early retirement and similar
plan or plans of the Corporation, its Subsidiaries and Affiliates,
providing for pension or retirement benefits that may be applicable to
the Executive and that are in effect on the date hereof or may
hereafter be adopted or substituted for any such plan, but exclusive of
the Dana Corporation Savings and Investment Plan and any similar plan
or plans.
(3) The term "Service" shall mean employment as an
employee by the Corporation, any Subsidiary or Affiliate thereof or any
corporation the capital stock or assets of which have been acquired by,
or which has been merged into or consolidated with the Corporation or
any Subsidiary or Affiliate thereof.
4. TERMINATION OF EMPLOYMENT.
(1) DEATH OR DISABILITY.
(1) The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period.
(2) If the Corporation determines in good faith that
the Disability (as defined below) of the Executive has occurred during
the Employment Period, it may give to the Executive written notice in
accordance with Section 13(b) below of its intention to terminate the
Executive's employment. In such event, the Employment Period shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), PROVIDED, that
<PAGE> 14
within the 30 days after such receipt, the Executive shall not have
returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" shall mean the absence of the
Executive from the Executive's duties with the Corporation on a
full-time basis for 180 consecutive business days as a result of
incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Corporation or its
insurers and acceptable to the Executive or the Executive's legal
representative (such agreement as to acceptability not to be withheld
unreasonably).
(2) CAUSE. The Corporation may terminate the Executive's
employment during the Employment Period for Cause. For purposes of this
Agreement, the termination of the Executive's employment shall be deemed to have
been for "Cause" only
(1) if termination of his employment shall have been
the result of his conviction of, or plea of guilty or nolo contendere
to, the charge of having committed a felony (whether or not such
conviction is later reversed for any reason), or
(2) if there has been a breach by the Executive
during the Employment Period of the provisions of Section 2(b),
relating to the time to be devoted to the affairs of the Corporation,
or of Section 8, relating to confidential information, and such breach
results in demonstrably material injury to the Corporation, and, with
respect to any alleged breach of Section 2(b) hereof, the Executive
shall have either failed to remedy such alleged breach within thirty
days from his receipt of written notice from the Secretary of the
Corporation pursuant to resolution duly adopted by the Board of
Directors of the Corporation after notice to the Executive and an
opportunity to be heard demanding that he remedy such alleged breach,
or shall have failed to take all reasonable steps to that end during
such thirty-day period and thereafter;
PROVIDED, that there shall have been delivered to the Executive a certified copy
of a resolution of the Board of Directors of the Corporation adopted by the
affirmative vote of not less than three-fourths of the entire membership of the
Board of Directors called and held for that purpose and at which the Executive
was given an opportunity to be heard, finding that the Executive was guilty of
conduct set forth in subparagraph (i) or (ii) above, specifying the particulars
thereof in detail.
Anything in this Section 4(b) or elsewhere in this Agreement to the
contrary notwithstanding, the employment of the Executive shall in no event be
considered to have been terminated by the Corporation for Cause if termination
of his employment took place
<PAGE> 15
(1) as the result of bad judgment or negligence on the part of
the Executive, or
(2) because of an act or omission believed by the
Executive in good faith to have been in or not
opposed to the interests of the Corporation, or
(3) for any act or omission in respect of which a
determination could properly be made that the
Executive met the applicable standard of conduct
prescribed for indemnification or reimbursement or
payment of expenses under (A) the Bylaws of the
Corporation, or (B) the laws of the State of
Virginia, or (C) the directors' and officers'
liability insurance of the Corporation, in each
case either as in effect at the time of this
Agreement or in effect at the time of such act or
omission, or
(4) as the result of an act or omission which occurred
more than twelve calendar months prior to the
Executive's having been given notice of the
termination of his employment for such act or
omission unless the commission of such act or such
omission could not at the time of such commission
or omission have been known to a member of the
Board of Directors of the Corporation (other than
the Executive, if he is then a member of the Board
of Directors), in which case more than twelve
calendar months from the date that the commission
of such act or such omission was or could
reasonably have been so known, or
(5) as the result of a continuing course of action
which commenced and was or could reasonably have
been known to a member of the Board of Directors of
the Corporation (other than the Executive, if he is
then a member of the Board of Directors) more than
twelve calendar months prior to notice having been
given to the Executive of the termination of his
employment.
(3) GOOD REASON. The Executive may terminate his employment
during the Employment Period for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean the occurrence of any of the following events:
(1) Failure to elect or reelect the Executive to the
Board of Directors of the Corporation, if the Executive shall have been
a member of the Board of Directors on the date of this Agreement or at
any time thereafter during the Employment Period, or failure to elect
or reelect the Executive to, or removal
<PAGE> 16
of the Executive from, the office(s) described in Section 2(a) above
and intended to be summarized in Exhibit A to this Agreement.
(2) A significant change in the nature or scope of
the authorities, powers, functions or duties attached to the position
described in Section 2 above and intended to be summarized in Exhibit A
to this Agreement, or a reduction in compensation, which is not
remedied within 30 days after receipt by the Corporation of written
notice from the Executive.
(3) A determination by the Executive made in good
faith that as a result of a Change of Control, and a change in
circumstances thereafter and since the date of this Agreement
significantly affecting his position, he is unable to carry out the
authorities, powers, functions or duties attached to his position and
contemplated by Section 2 of this Agreement and the situation is not
remedied within 30 days after receipt by the Corporation of written
notice from the Executive of such determination.
(4) A breach by the Corporation of any provision of
this Agreement not embraced within the foregoing clauses (i), (ii) and
(iii) of this Section 4(c) which is not remedied within 30 days after
receipt by the Corporation of written notice from the Executive.
(5) The liquidation, dissolution, consolidation or
merger of the Corporation or transfer of all or a significant portion
of its assets unless a successor or successors (by merger,
consolidation or otherwise) to which all or a significant portion of
its assets have been transferred shall have assumed all duties and
obligations of the Corporation under this Agreement but without
releasing the corporation that is the original party to this Agreement;
PROVIDED, that in any event set forth in this Section 4(c), the Executive shall
have elected to terminate his employment under this Agreement, upon not less
than ten and not more than ninety days' advance written notice to the
Corporation, attention of the Secretary, given, except in the case of a
continuing breach, within three calendar months after (A) failure to be so
elected or reelected, or removal, (B) expiration of the thirty-day cure period
with respect to such event, or (C) the closing date of such liquidation,
dissolution, consolidation, merger or transfer of assets, as the case may be.
An election by the Executive to terminate his employment given under
the provisions of this Section 4(c) shall not be deemed a voluntary termination
of employment by the Executive for the purpose of this Agreement or any plan or
practice of the Corporation.
<PAGE> 17
(4) NOTICE OF TERMINATION. Any termination by the Corporation
for Cause, or by the Executive for Good Reason, shall be communicated by Notice
of Termination to the other party hereto given in accordance with Section 13(b)
below. For purposes of this Agreement, a "Notice of Termination" means a written
notice which
(1) indicates the specific termination provision in this
Agreement relied upon,
(2) to the extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination
of the Executive's employment under the provision so indicated and
(3) if the Date of Termination (as defined in Section 4(e)
below) is other than the date of receipt of such notice, specifies the
termination date (which date shall be not more than fifteen days after
the giving of such notice).
(5) DATE OF TERMINATION. "Date of Termination" means
(1) if the Executive's employment is terminated by the
Corporation for Cause, or by the Executive for Good Reason, the date of
receipt of the Notice of Termination or any later date specified
therein, as the case may be,
(2) if the Executive's employment is terminated by the
Corporation other than for Cause or Disability, the Date of Termination
shall be the date on which the Corporation notifies the Executive of
such termination and
(3) if the Executive's employment is terminated by reason of
death or Disability, the Date of Termination shall be the date of death
of the Executive or the Disability Effective Date, as the case may be.
5. OBLIGATIONS OF THE CORPORATION UPON TERMINATION.
(1) TERMINATION OTHER THAN FOR CAUSE. If, during the
Employment Period, the Corporation shall terminate the Executive's employment
other than for Cause or the Executive shall terminate his employment following a
Change of Control for Good Reason (termination in any such case referred to as
"Termination"):
(1) the Corporation shall pay the Executive in a lump sum in
cash within 30 days after the Date of Termination the sum of
<PAGE> 18
(1) the Executive's Annual Base Salary through the Date of
Termination to the extent not theretofore paid,
(2) the product of (x) the Target Annual Bonus and (y) a
fraction, the numerator of which is the number of days in the current
fiscal year through the Date of Termination, and the denominator of
which is 365, and
(3) any compensation previously deferred by the Executive
(together with any accrued interest or earnings thereon) and any
accrued vacation pay, in each case to the extent not theretofore paid
(the sum of the amounts described in clauses (1), (2), and (3) shall be
hereinafter referred to as the "Accrued Obligations"); and
(2) The Corporation shall pay the Executive in a lump
sum in cash within 30 days after the Date of Termination an amount
calculated based upon the present value (within the meaning of Section
280G(d)(4) of the Internal Revenue Code of 1986 as amended (the "Code")
of payments described as follows: at the end of the month next
following the Termination, and at the end of each month thereafter
until the earliest of the end of the Employment Period, three years
following the Date of Termination, or until the Executive shall attain
the age of 65 years, but in no event beyond the end of the month in
which the death of the Executive shall have occurred or the end of the
sixth month following the Disability Effective Date (such period to be
called the "Termination Period"), the Corporation would pay to the
Executive an amount equal to the Highest Average Monthly Compensation;
PROVIDED, HOWEVER, that such amount would be reduced by any other
amounts payable to the Executive in respect of salary or bonus
continuation to be received by the Executive under any severance plan,
policy or arrangement of the Corporation; and
(3) During the Termination Period, or such longer
period as any plan, program, practice or policy may provide, the
Corporation shall continue benefits to the Executive and/or the
Executive's family at least equal to those which would have been
provided to them in accordance with the plans, programs, practices and
policies described in Section 3(d) above if the Executive's employment
had not been terminated in accordance with the most favorable plans,
practices, programs or policies of the Corporation and its Affiliated
Companies as in effect and applicable generally to other senior
executives of the Corporation and its Affiliated Companies and their
families during the 90-day period immediately preceding the Date of
Termination or, if more favorable to the Executive, as in effect at any
time thereafter or, if more favorable to the
<PAGE> 19
Executive, as in effect generally at any time thereafter with respect
to other senior executives of the Corporation and its Affiliated
Companies and their families, PROVIDED, HOWEVER, that if the Executive
becomes reemployed with another employer and is eligible to receive
medical or other welfare benefits under another employer-provided plan,
the medical and other welfare benefits described herein shall be
secondary to those provided under such other plan during such
applicable period of eligibility (such continuation of such benefits
for the applicable period herein set forth shall be hereinafter
referred to as "Welfare Benefit Continuation"). For purposes of
determining eligibility of the Executive for retiree benefits pursuant
to such plans, practices, programs and policies, the Executive shall be
considered to have remained employed until the end of the Termination
Period and to have retired on the date of the end of the Termination
Period. To the extent that any benefits referred to in this Section
5(a)(iii) shall not be payable or provided under any such plan by
reason of the Executive's no longer being an employee of the
Corporation as the result of Termination, the Corporation shall itself
pay, or provide for payment of, such benefits and the service credit
for benefits provided for in Section 5(a)(iv) below, to the Executive,
his dependents and Beneficiary; and
(4) The period from the Date of Termination until the end of
the Termination Period shall be considered:
(1) Service with the Corporation for the purpose of
continued credits under the employee benefit plans
referred to in Section 3(d) above and all other
benefit plans of the Corporation applicable to the
Executive or his Beneficiary as in effect
immediately prior to Termination but prior to any
reduction of benefits thereunder as the result of
amendment or termination during the Employment
Period; and
(2) Employment with the Corporation for purposes of
determining payments and other rights in respect of
awards made or accrued and award opportunities
granted prior to Termination under the executive
incentive plans referred to in Section 3(c) above
and all other incentive plans of the Corporation in
which the Executive was a participant prior to
Termination;
(5) to the extent not theretofore paid or provided, the
Corporation shall timely pay or provide to the Executive and/or the
Executive's family any other amounts or benefits required to be paid or
provided or which the Executive and/or the Executive's family is
eligible to receive pursuant to this Agreement and under any plan,
program, policy or practice or contract or agreement of the
<PAGE> 20
Corporation and its Affiliated Companies as in effect and applicable
generally to other senior executives of the Corporation and its
Affiliated Companies and their families during the 90-day period
immediately preceding the Date of Termination or, if more favorable to
the Executive, as in effect generally thereafter with respect to other
senior executives of the Corporation and its Affiliated Companies and
their families (such other amounts and benefits shall be referred to
below as the "Other Benefits").
(2) [intentionally left blank]
(3) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's
employment shall be terminated for Cause during the Employment Period, the
Corporation shall have no further obligations to the Executive under this
Agreement other than the obligation to pay the Executive's Annual Base Salary,
any compensation previously deferred by the Executive (together with any accrued
interest or earnings thereon), and accrued vacation pay through the Date of
Termination, in each case to the extent not theretofore paid, and any other
amounts or benefits to which the Executive and/or the Executive's family is
otherwise entitled under the terms of any employee benefit or incentive plan of
the Corporation. If the Executive terminates employment during the Employment
Period, excluding a termination for Good Reason following a Change of Control,
the Corporation shall have no further obligations to the Executive, other than
to pay the Executive's Annual Base Salary, any compensation previously deferred
by the Executive (together with any accrued interest or earnings thereon), and
accrued vacation pay through the termination date, in each case to the extent
not theretofore paid, any other benefits to which the Executive and/or the
Executive's family is otherwise entitled under the terms of any employee benefit
or incentive plan of the Corporation.
(4) DEATH OR DISABILITY.
(1) In the event of the death of the Executive during
the Employment Period, the legal representative of the Executive shall
be entitled to the compensation provided for in Sections 3(a) and 3(b)
above for the month in which death shall have taken place, at the rate
being paid at the time of death, and the Employment Period shall be
deemed to have ended as of the close of business on the last day of the
month in which death shall have occurred but without prejudice to any
payments due in respect of the Executive's death.
(2) In the event of the Disability of the Executive
during the Employment Period, the Executive shall be entitled to the
compensation provided for in Sections 3(a) and 3(b) above, at the rate
being paid on the Disability Effective Date, for the period of such
Disability but not in excess of six months.
<PAGE> 21
The amount of any payments due under this Section 5(d)(ii) shall be
reduced by any payments to which the Executive may be entitled for the
same period because of disability under any disability or pension plan
of the Corporation or of any Subsidiary or Affiliate thereof.
(5) RESOLUTION OF DISPUTES.
(1) RIGHT OF ELECTION BY EXECUTIVE TO ARBITRATE OR
SUE. In the event that the Executive's employment shall be terminated
by the Corporation during the Employment Period and such termination is
alleged to be for Cause, or the Executive's right to terminate his
employment under Section 4(c) above shall be questioned by the
Corporation, or the Corporation shall withhold payments or provision of
benefits for any other reason, the Executive shall have the right, in
addition to all other rights and remedies provided by law, at his
election either to seek arbitration within the Toledo, Ohio area under
the rules of the American Arbitration Association by serving a notice
to arbitrate upon the Corporation or to institute a judicial
proceeding, in either case within ninety days after having received
notice of termination of his employment or notice in any form that the
termination of his employment under Section 4(b) above is subject to
question or that the Corporation is withholding or proposes to withhold
payments or provision of benefits.
(2) THIRD-PARTY STAKEHOLDER. In the event that the
Corporation defaults on any obligation set forth in Section 5(a) above,
relating to Termination, and shall have failed to remedy such default
within thirty (30) days after having received written notice of such
default from the Executive, in addition to all other rights and
remedies that the Executive may have as a result of such default, the
Executive may demand and the Corporation shall thereupon be required to
deposit, with the third-party stakeholder hereinafter described, an
amount equal to the undiscounted value of any and all undischarged,
future obligations of the Corporation under Section 5(a) above and such
amount shall thereafter be held, paid, applied or distributed by such
third-party stakeholder for the purpose of satisfying such
undischarged, future obligations of the Corporation when and to the
extent that they become due and payable. Any interest or other income
on such amount shall be retained by the third-party stakeholder and
applied, if necessary, by it to satisfy such obligations, provided,
HOWEVER, that any interest or other income that is earned on such
undischarged, future obligations after the date that the third-party
stakeholder determines, in its sole discretion, that such obligations
are due and owing to the Executive, shall be paid to the Executive as
earned. To the extent not theretofore expended, such amount (including
any remaining unexpended interest or other income) shall be
<PAGE> 22
repaid to the Corporation at such time as the third-party stakeholder,
in its sole discretion, reasonably exercised, determines, upon the
advice of counsel and after consultation with the Corporation and the
Executive or, in the event of his death, his Beneficiary, that all
obligations of the Corporation under Section 5(a) above have been
substantially satisfied.
Such amount shall, in the event of any question, be determined
jointly by the firm of certified public accountants regularly employed
by the Corporation and a firm of certified public accountants selected
by the Executive, in each case upon the advice of actuaries to the
extent the certified public accountants consider necessary, and, in the
event such two firms of accountants are unable to agree on a resolution
of the question, such amount shall be determined by an independent firm
of certified public accountants selected jointly by both firms of
accountants.
The third-party stakeholder, the fees and expenses of which
shall be paid by the Corporation, shall be a national or state bank or
trust company having a combined capital, surplus and undivided profits
and reserves of not less than Ten Million Dollars ($10,000,000) which
is duly authorized and qualified to do business in the state in which
the Executive resides at the time of such default.
6. NON-EXCLUSIVITY OF RIGHTS.
Except as provided in Sections 5(a)(ii), 5(b) and 5(c) above, nothing
in this Agreement shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided by the
Corporation or any of its Affiliated Companies and for which the Executive may
qualify, nor shall anything herein limit or otherwise affect such rights as the
Executive may have under any contract or agreement entered into after the date
hereof with the Corporation or any of its Affiliated Companies. Amounts which
are vested benefits or which the Executive is otherwise entitled to receive
under any plan, policy, practice or program of, or any contract or agreement
entered into after the date hereof with, the Corporation or any of its
Affiliated Companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement.
7. FULL SETTLEMENT.
The Corporation's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Corporation may
<PAGE> 23
have against the Executive or others. In no event shall the Executive be
obligated to seek other employment or take any other action by way of mitigation
of the amounts payable to the Executive under any of the provisions of this
Agreement and, except as provided in Section 5(a)(iii) above, such amounts shall
not be reduced whether or not the Executive obtains other employment.
8. CONFIDENTIAL INFORMATION.
(1) The Executive agrees not to disclose, either while in the
Corporation's employ or at any time thereafter, to any person not employed by
the Corporation, or not engaged to render services to the Corporation, except
with the prior written consent of an officer authorized to act in the matter by
the Board of Directors of the Corporation, any confidential information obtained
by him while in the employ of the Corporation, including, without limitation,
information relating to any of the Corporation's inventions, processes,
formulae, plans, devices, compilations of information, methods of distribution,
customers, client relationships, marketing strategies or trade secrets;
PROVIDED, HOWEVER, that this provision shall not preclude the 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
Corporation or from disclosure required by law or Court order. The agreement
herein made in this Section 8(a) shall be in addition to, and not in limitation
or derogation of, any obligations otherwise imposed by law upon the Executive in
respect of confidential information and trade secrets of the Corporation, its
Subsidiaries and Affiliates.
(2) The Executive also agrees that upon leaving the Corporation's
employ he will not take with him, without the prior written consent of an
officer authorized to act in the matter by the Board of Directors of the
Corporation, and he will surrender to the Corporation any record, list, drawing,
blueprint, specification or other document or property of the Corporation, its
Subsidiaries and Affiliates, together with any copy and reproduction thereof,
mechanical or otherwise, which is of a confidential nature relating to the
Corporation, its Subsidiaries and Affiliates, or, without limitation, relating
to its or their methods of distribution, client relationships, marketing
strategies or any description of any formulae or secret processes, or which was
obtained by him or entrusted to him during the course of his employment with the
Corporation.
9. COMPETITION.
(1) The Executive hereby agrees that he will not engage in Competition
at any time (i) during the Employment Period, and (ii) except in the event of a
Termination, during the thirty-six (36) months immediately following the
termination of his employment with the Corporation.
<PAGE> 24
(2) The word "Competition" for the purposes of this Agreement shall
mean:
(1) taking a management position with or control of a business
engaged in the design, development, manufacture, marketing or
distribution of products, which constituted 15% or more of the sales of
the Corporation and its Subsidiaries and Affiliates during the last
fiscal year of the Corporation preceding the termination of the
Executive's employment, in any geographical area in which the
Corporation, its Subsidiaries or Affiliates is at the time engaging in
the design, development, manufacture, marketing or distribution of such
products; PROVIDED, HOWEVER, that in no event shall ownership of less
than 5% of the outstanding capital stock entitled to vote for the
election of directors of a corporation with a class of equity
securities held of record by more than 500 persons, standing alone, be
deemed Competition with the Corporation within the meaning of this
Section 9,
(2) soliciting any person who is a customer of the businesses
conducted by the Corporation, or any business in which the Executive
has been engaged on behalf of the Corporation and its Subsidiaries or
Affiliates at any time during the term of this Agreement on behalf of a
business described in clause (i) of this Section 9(b),
(3) inducing or attempting to persuade any employee of the
Corporation or any of its Subsidiaries or Affiliates to terminate his
employment relationship in order to enter into employment with a
business described in clause (i) of this Subsection 9(b), or
(4) making or publishing any statement which is, or may
reasonably be considered to be, disparaging of the Corporation or any
of its Subsidiaries or Affiliates, or directors, officers, employees or
the operations or products of the Corporation or any of its
Subsidiaries or Affiliates, except to the extent the Executive, during
the Employment Period, makes the statement to employees or other
representatives of the Corporation or any of its Subsidiaries or
Affiliates in furtherance of the Corporation's business and the
performance of his services hereunder.
10. SUCCESSORS.
Except as otherwise provided herein,
<PAGE> 25
(1) This Agreement shall be binding upon and shall inure to
the benefit of the Executive, his heirs and legal representatives, and the
Corporation and its successors as provided in this Section 10.
(2) This Agreement shall be binding upon and inure to the
benefit of the Corporation and any successor of the Corporation, including,
without limitation, any corporation or corporations acquiring, directly or
indirectly, 50% or more of the outstanding securities of the Corporation, or all
or substantially all of the assets of the Corporation, whether by merger,
consolidation, sale or otherwise (and such successor shall thereafter be deemed
embraced within the term "the Corporation" for the purposes of this Agreement),
but shall not otherwise be assignable by the Corporation.
11. CERTAIN DEFINITIONS.
The following defined terms used in this Agreement shall have the
meanings indicated:
(3) BENEFICIARY. The term "Beneficiary" as used in this
Agreement shall, in the event of the death of the Executive, mean an individual
or individuals and/or an entity or entities, including, without limitation, the
Executive's estate, duly designated on a form filed with the Corporation by the
Executive to receive any amount that may be payable after his death or, if no
such individual, individuals, entity or entities has or have been so designated,
or is at the time in existence or able to receive any such amount, the
Executive's estate.
(4) CHANGE OF CONTROL. A "Change of Control" shall be deemed
to have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
(1) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Corporation (not including
in the securities Beneficially Owned by such Person any securities
acquired directly from the Corporation or its Affiliates) representing
20% or more of the combined voting power of the Corporation's then
outstanding securities, excluding any Person who becomes such a
Beneficial Owner in connection with a transaction described in clause
(1) of paragraph (iii) below; or
(2) the following individuals cease for any reason to
constitute a majority of the number of directors then serving:
individuals who, on the date hereof, constitute the Board and any new
director whose appointment or election by the Board or nomination for
election by the Corporation's stockholders was approved or recommended
by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors on the date hereof or whose
<PAGE> 26
appointment, election or nomination for election was previously so
approved or recommended. For purposes of the preceding sentence, any
director whose initial assumption of office is in connection with an
actual or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of the
Corporation, shall not be counted; or
(3) there is consummated a merger or consolidation of
the Corporation or any direct or indirect Subsidiary of the Corporation
with any other corporation, other than (1) a merger or consolidation
which would result in the voting securities of the Corporation
outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or any parent
thereof) at least 50% of the combined voting power of the securities of
the Corporation or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation, or (2) a
merger or consolidation effected to implement a recapitalization of the
Corporation (or similar transaction) in which no Person is or becomes
the Beneficial Owner, directly or indirectly, of securities of the
Corporation (not including in the securities Beneficially Owned by such
Person any securities acquired directly from the Corporation or its
Affiliates) representing 20% or more of the combined voting power of
the Corporation's then outstanding securities; or
(4) the stockholders of the Corporation approve a
plan of complete liquidation or dissolution of the Corporation or there
is consummated an agreement for the sale or disposition by the
Corporation of all or substantially all of the Corporation's assets,
other than a sale or disposition by the Corporation of all or
substantially all of the Corporation's assets to an entity, at least
50% of the combined voting power of the voting securities of which are
owned by stockholders of the Corporation in substantially the same
proportions as their ownership of the Corporation immediately prior to
such sale.
"Beneficial Owner" shall have the meaning set forth in Rule 13d-3 under the
Exchange Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from
time to time.
"Person" shall have the meaning given in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d) and 14(d) thereof, except that such term
shall not include (i) the Corporation or any of its Subsidiaries, (ii) a trustee
or other fiduciary holding securities under an employee benefit plan of the
Corporation or any of its Affiliates, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities or (iv) a
<PAGE> 27
corporation owned, directly or indirectly, by the stockholders of the
Corporation in substantially the same proportions as their ownership of stock of
the Corporation.
(5) CHANGE OF CONTROL DATE. The "Change of Control Date" shall
mean the first date on which a Change of Control occurs. Anything in this
Agreement to the contrary notwithstanding, if a Change of Control occurs and if
the Executive's employment with the Corporation is terminated or the Executive
ceases to have the position with the Corporation set forth in Section 2(a) above
prior to the date on which the Change of Control occurs, and if it is reasonably
demonstrated by the Executive that such termination or cessation (i) was at the
request of a third party who has taken steps reasonably calculated to effect the
Change of Control or (ii) otherwise arose in connection with or anticipation of
the Change of Control, then for all purposes of this Agreement the "Change of
Control Date" shall mean the date immediately prior to the date of such
termination or cessation.
(6) CHANGE OF CONTROL PERIOD. The "Change of Control Period"
shall mean the period commencing on the Change of Control Date and ending on the
last day of the Employment Period.
11. AMENDMENT OR MODIFICATION; WAIVER.
No provision of this Agreement may be amended, modified or waived
unless such amendment, modification or waiver shall be authorized by the Board
of Directors of the Corporation or any authorized committee of the Board of
Directors and shall be agreed to in writing, signed by the Executive and by an
officer of the Corporation thereunto duly authorized. Except as otherwise
specifically provided in this Agreement, no waiver by either party hereto of any
breach by the other party hereto of any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of a subsequent
breach of such condition or provision or a waiver of a similar or dissimilar
provision or condition at the same time or at any prior or subsequent time.
12. MISCELLANEOUS.
(1) This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without reference to principles
of conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
(2) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
<PAGE> 28
If to the Executive: Copy to:
- -------------------- --------
William J. Carroll William J. Carroll
c/o Dana Corporation P.O. Box 1000
4500 Dorr Street Toledo, OH 43697
Toledo, Ohio 43615
If to the Corporation:
- ----------------------
Dana Corporation
4500 Dorr Street
Toledo, Ohio 43615
Attention: Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(3) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(4) The Corporation may withhold from any amounts payable
under this Agreement such Federal, state or local taxes as it determines is
required to be withheld pursuant to any applicable law or regulation.
(5) When used herein in connection with plans, programs and
policies relating to the Executive, employees, compensation, benefits,
perquisites, executive benefits, services and similar words and phrases, the
word "Corporation" shall be deemed to include all wholly-owned Subsidiaries of
the Corporation.
(6) This instrument contains the entire agreement of the
parties concerning the subject matter, and all promises, representations,
understandings, arrangements and prior agreements concerning the subject matter
are merged herein and superseded hereby.
(7) No right, benefit or interest hereunder, shall be subject
to anticipation, alienation, sale, assignment, encumbrance, charge, pledge,
hypothecation, or set-off in respect of any claim, debt or obligation, or to
execution, attachment, levy or similar process, or assignment by operation of
law. Any attempt, voluntary or involuntary, to effect any action specified in
the immediately preceding sentence shall, to the full extent permitted by law,
be null, void and of no effect.
<PAGE> 29
(8) The Executive shall not have any right, title, or interest
whatsoever in or to any investments which the Corporation may make to aid it in
meeting its obligations under this Agreement.
(9) Subject to the provisions of Section 5(e) above, all
payments to be made under this Agreement shall be paid from the general funds of
the Corporation and no special or separate fund shall be established and no
segregation of assets shall be made to assure payment of amounts payable under
this Agreement.
(10) The Corporation and the Executive recognize that each
party will have no adequate remedy at law for breach by the other of any of the
agreements contained in this Agreement and, in the event of any such breach, the
Corporation and the Executive hereby agree and consent that the other shall be
entitled to a decree of specific performance, mandamus or other appropriate
remedy to enforce performance of such agreements.
(11) Subject to the provisions of Section 5(e) above, nothing
contained in this Agreement shall create or be construed to create a trust of
any kind, or a fiduciary relationship between the Corporation and the Executive
or any other person.
(12) Subject to the provisions of Section 5(e) above, to the
extent that any person acquires a right to receive payments from the Corporation
under this Agreement, except to the extent provided by law such right shall be
no greater than the right of an unsecured general creditor of the Corporation.
(13) In the event of the Executive's death or a judicial
determination of his incompetence, reference in this Agreement to the Executive
shall be deemed, where appropriate, to refer to his legal representative or,
where appropriate, to his Beneficiary.
(14) If any event provided for in this Agreement is scheduled
to take place on a legal holiday, such event shall take place on the next
succeeding day that is not a legal holiday.
(15) This Agreement is not intended to and shall not infer or
imply any right on the part of the Executive to continue in the employ of the
Corporation, or any Subsidiary or Affiliate of the Corporation, prior to a
Change of Control, and is not intended in any way to limit the right of the
Corporation to terminate the employment of the Executive, with or without
assigning a reason therefor, at any time prior to a Change of Control. Nor is
this Agreement intended to nor shall it require or imply an obligation on the
part of the Executive to continue in the employment of the Corporation, or any
Subsidiary or Affiliate of the Corporation, prior to a Change of Control.
Neither the Corporation nor the
<PAGE> 30
Executive shall incur any liability under this Agreement if the employment of
the Executive shall be terminated by the Corporation or by the Executive prior
to a Change of Control.
<PAGE> 31
IN WITNESS WHEREOF, the Executive and, pursuant to due authorization
from its Board of Directors, the Corporation have caused this Agreement to be
executed as of the day and year first above written.
DANA CORPORATION
By: /s/ Southwood J. Morcott
---------------------------
Name: Southwood J. Morcott
Title: Chairman of the Board
By: /s/ Theodore B. Sumner
---------------------------
Chairman of the
Compensation Committee
Attest:
Assistant Secretary
/s/ Martin J. Strobel
- ---------------------
/s/ William J. Carroll
---------------------------
Executive
<PAGE> 32
Exhibit A to Agreement
Made as of December 8, 1997 Between
Dana Corporation and William J. Carroll
---------------------------------------
As of December 8, 1997, for purposes of Section 2(a),
The office(s) and title(s) of the Executive are President--Automotive
Components Group of the Corporation;
the reporting responsibility of the Executive is to report directly to
the President of the Corporation; and
the duties and responsibilities of the Executive are:
Serves as the President of the Automotive Components Group of the
Corporation, in which capacity he has overall responsibility for
development and implementation of the Corporation's business strategy
for the automotive components market. Serves as a member of the Policy
Committee which sets the corporate style, strategies, policies and
goals that business operations of the Corporation are responsible for
in their performance. Serves as a member of the World Operating
Committee which monitors business unit performance, implements product
strategies, and takes corrective action in the event of non-performance
in the areas of meeting financial goals and implementation of market
strategies, and insures interaction between divisions and affiliates.
Serves on the Strategic Business Council.
<PAGE> 1
Exhibit 10-L(5)
FOURTH AMENDMENT
TO
THE DANA CORPORATION
1989 RESTRICTED STOCK PLAN
Pursuant to resolutions of the Board of Directors of Dana
corporation adopted on the 21st day of July, 1997, the Dana Corporation 1989
Restricted Stock Plan (the "Plan") is hereby amended as set forth below.
FIRST
The Plan is amended by adding thereto a new Section 16 to read
in its entirety as follows:
Section 16. CONVERSION INTO RESTRICTED STOCK UNITS.
(a) Notwithstanding anything to the contrary
contained in the Plan, each participant may elect to convert any and
all shares of Restricted Stock granted to such Participant into
restricted stock units, as described below in paragraph (b) of this
Section 16 ("Units"). Such elections may be made at such times and
under such rules as may be promulgated by the Committee. Any resulting
Units shall be subject to the same Restricted Period and to the same
conditions for the lapse or termination of restrictions upon the
occurrence of other conditions as such converted Restricted Stock.
Section 11 hereof shall apply to Units in the same manner as to
Restricted Stock.
(b) For each Participant who elects to convert shares
of Restricted Stock into Units, the Corporation shall establish a
Restricted Stock Unit Account ("Account") on its books, and shall
credit to such Account a number of Units equal to the number of shares
of Restricted Stock so converted. When cash dividends are declared and
paid on the Stock, the Account of each Participant shall be credited as
of the dividend payment date with an amount equal to the cash which
would have been paid if each Unit in such Account, as of the dividend
record date, had been one share of Stock. Then, four times each year,
effective March 15, June 15, September 15 and December 15, the accrued
dollar balance in a Participant's Account shall be converted into a
number of Units equal to the maximum number of whole shares of Stock
which could be purchased with such accumulated balance, and the dollar
amount then credited to the Account shall be appropriately reduced. For
purposes of the preceding sentence, each share of Stock shall have a
value equal to the average of the last reported daily sales prices for
shares of such Stock on the New York Stock Exchange-Composite
Transactions on each trading day during the calendar month preceding
the month in which the conversion is made.
(c) Upon termination of the Participant's employment with the
Corporation for any reason, a stock certificate for the number of
shares equal to
<PAGE> 2
the number of whole Units in such Participant's Account shall be
delivered to such Participant, less any shares withheld in accordance
with the provisions of Section 7 of the Plan (as if the Units
constituted Restricted Stock). The Corporation shall not be required to
deliver fractional shares of Stock but will pay to such Participant, in
lieu thereof, a cash amount equal to the Fair Market Value, determined
as of the effective date of termination, of such fractional shares.
IN WITNESS WHEREOF, the undersigned has executed this Fourth Amendment
on behalf of the Corporation this 18th day of September, 1997.
ATTEST: DANA CORPORATION
/s/ Mark/ A. Smith, Jr. By: /s/ Martin J. Strobel
- ------------------------ ----------------------
<PAGE> 1
FINANCIAL Exhibit 13
Results
DEAR SHAREHOLDERS:
Dana Corporation enjoyed a truly outstanding year in 1997.
Exceptionally strong markets in North and South America, together with the
realignment of our company into market-focused business units, restructuring
activities at selected operations, and the largest acquisition and divestiture
program in company history led to record sales and profits.
Amid a year of unprecedented change, record capital spending,
improved operating margins, and tighter inventory control, Dana continued its
strong cash generation. At the same time, excluding Dana Commercial Credit, the
company also held its debt-to-capital ratio at 45 percent -- the same level as
1996.
Through closer customer relationships with our manufacturing
units globally, we have cut lead times, reduced inventories, and improved
customer service. As we continue to improve the operating efficiencies of our
businesses, we serve our customers better while improving return on invested
capital.
Asset management, global expansion, strong cash flow, improved
customer service, and better margins -- these are the fundamentals for
delivering added value to customers and shareholders alike. They are also the
result of the successful execution of our long-term strategic plan for
continuous improvement in all facets of our business.
[PHOTO]
Sincerely,
/s/ John S. Simpson
John S. Simpson
Chief Financial Officer
GROWTH IN SHAREHOLDER EQUITY
(in millions)
1993 $ 801
1994 940
1995 1,165
1996 1,429
1997 1,701
21
<PAGE> 2
MANAGEMENT AND INDEPENDENT ACCOUNTANT'S REPORT
- -------------------------------------------------------------------------------
RESPONSIBILITY FOR FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
We have prepared the accompanying consolidated financial statements and
related information included herein for the three years ended December 31, 1997.
The management of Dana Corporation is primarily responsible for the
accuracy of the financial information that is presented in this annual report.
These statements were prepared in accordance with generally accepted accounting
principles and, where appropriate, we used our estimates and judgement with
consideration to materiality.
To meet management's responsibility for financial reporting, we have
established internal control systems which we believe are adequate to provide
reasonable assurance that our assets are protected from loss. These systems
produce data used for the preparation of financial information.
We believe internal control systems should be designed to provide
accurate information at a reasonable cost which is not out of line with the
benefits to be received. These systems and controls are reviewed by our internal
auditors in order to ensure compliance, and by our independent accountants to
support their audit work.
The Audit Committee of the Board of Directors meets regularly with
management, internal auditors and our independent accountants to review
accounting, auditing and financial matters. Our Audit Committee is composed of
only outside directors. This committee and the independent accountants have free
access to each other with or without management being present.
We believe people are Dana's most important asset. The proper selection,
training and development of our people is a means of ensuring that effective
internal controls and fair, uniform reporting are maintained as standard
practice throughout the Corporation.
/s/ John S. Simpson
John S. Simpson
Chief Financial Officer
/s/ James H. Woodward, Jr.
James H. Woodward, Jr.
Vice President and Corporate Controller
- --------------------------------------------------------------------------------
REPORT OF INDEPENDENT ACCOUNTANTS
- -------------------------------------------------------------------------------
[Price Waterhouse Logo]
To the Board of Directors and Shareholders
of Dana Corporation
In our opinion, the accompanying consolidated balance sheet and the related
consolidated statements of income, of shareholders' equity and of cash flows,
including pages 23 through and including Note 25 on page 40, present fairly, in
all material respects, the financial position of Dana Corporation and its
subsidiaries at December 31, 1996 and 1997, and the results of their operations
and their cash flows for each of the three years in the period ended December
31, 1997, in conformity with generally accepted accounting principles. These
financial statements are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements based on
our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above.
/s/ Price Waterhouse LLP
Toledo, Ohio
January 21, 1998
A copy of the Annual Report as filed with the Securities and Exchange
Commission on Form 10-K will be mailed at no charge upon request to the
Secretary, Dana Corporation, P.O. Box 1000, Toledo, Ohio 43697.
22
<PAGE> 3
STATEMENT OF INCOME
in millions except per share amounts DANA CORPORATION
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Year Ended December 31
1995 1996 1997
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
NET SALES $ 7,597.7 $7,686.3 $ 8,290.8
Revenue from lease financing and other income 189.0 203.2 478.6
Foreign currency adjustments 7.8 1.2 .9
- ----------------------------------------------------------------------------------------------------------------------------
7,794.5 7,890.7 8,770.3
- ----------------------------------------------------------------------------------------------------------------------------
Costs and expenses
Cost of sales 6,449.7 6,525.2 7,180.4
Selling, general and administrative expenses 685.2 714.8 739.7
Interest expense 146.4 159.0 196.1
- ----------------------------------------------------------------------------------------------------------------------------
7,281.3 7,399.0 8,116.2
- ----------------------------------------------------------------------------------------------------------------------------
Income before income taxes 513.2 491.7 654.1
Estimated taxes on income 181.2 166.3 293.6
- ----------------------------------------------------------------------------------------------------------------------------
Income before minority interest and equity in earnings
(losses) of affiliates 332.0 325.4 360.5
Minority interest (40.4) (32.8) (23.5)
Equity in earnings (losses) of affiliates (3.5) 13.4 32.1
- ----------------------------------------------------------------------------------------------------------------------------
NET INCOME $ 288.1 $ 306.0 $ 369.1
- ----------------------------------------------------------------------------------------------------------------------------
NET INCOME PER COMMON SHARE
Basic income per share $ 2.84 $ 3.01 $ 3.54
- ----------------------------------------------------------------------------------------------------------------------------
Diluted income per share $ 2.83 $ 2.99 $ 3.49
- ----------------------------------------------------------------------------------------------------------------------------
Cash dividends declared and paid per common share $ .90 $ .98 $ 1.04
- ----------------------------------------------------------------------------------------------------------------------------
Average shares outstanding 101.3 101.8 104.3
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of the financial statements.
23
<PAGE> 4
BALANCE SHEET
in millions except par value DANA CORPORATION
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------
December 31
1996 1997
- ---------------------------------------------------------------------------------------
ASSETS
- ---------------------------------------------------------------------------------------
<S> <C> <C>
Cash $ 105.3 $ 93.3
Marketable securities, at cost which approximates market 122.5 301.0
Accounts receivable
Trade, less allowance for doubtful accounts
of $26.0 - 1996 and $29.6 - 1997 1,026.7 1,032.4
Other 42.4 130.5
Inventories 912.9 909.8
Lease financing 1,167.3 1,330.1
Investments and other assets 810.6 1,164.7
Deferred income tax benefits 147.5 112.1
Property, plant and equipment, net 1,824.8 2,044.8
- ---------------------------------------------------------------------------------------
Total assets $6,160.0 $7,118.7
- ---------------------------------------------------------------------------------------
LIABILITIES AND SHAREHOLDERS' EQUITY
- ---------------------------------------------------------------------------------------
Short-term debt $ 640.3 $ 504.2
Accounts payable 460.3 535.6
Other liabilities 736.5 982.8
Deferred employee benefits 1,025.6 1,062.5
Long-term debt 1,697.7 2,178.3
- ---------------------------------------------------------------------------------------
Total liabilities 4,560.4 5,263.4
Minority interest in consolidated subsidiaries 170.9 154.1
Shareholders' equity
Common stock, $1 par value, shares authorized, 240.0;
shares issued, 103.0 - 1996 and 105.1 - 1997 103.0 105.1
Additional paid-in capital 106.0 164.6
Retained earnings 1,304.9 1,565.4
Deferred pension and translation adjustments (85.2) (133.9)
- ---------------------------------------------------------------------------------------
Total shareholders' equity 1,428.7 1,701.2
- ---------------------------------------------------------------------------------------
Total liabilities and shareholders' equity $6,160.0 $7,118.7
- ---------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of the financial statements.
24
<PAGE> 5
STATEMENT OF CASH FLOWS
in millions DANA CORPORATION
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
Year Ended December 31
1995 1996 1997
- ---------------------------------------------------------------------------------------------
Net cash flows from operating activities $387.9 $704.4 $697.7
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Cash flows from investing activities:
Purchases of property, plant and equipment (409.7) (356.5) (426.0)
Purchases of assets to be leased (400.3) (426.3) (452.3)
Purchase of minority interest of Hayes-Dana Inc. (92.4)
Acquisitions (111.2) (88.4) (475.8)
Divestitures 10.9 394.0
Additions to investments and other assets (26.0) (41.3) (85.6)
Loans made to customers and partnerships (25.4) (98.5) (115.3)
Payments received on leases 201.0 209.7 250.4
Proceeds from sales of certain assets 93.4 73.1 33.6
Proceeds from sales of leased assets 48.8 20.3 26.0
Payments received on loans 16.6 20.8 155.0
Other 63.5 26.5 (37.7)
- ---------------------------------------------------------------------------------------------
Net cash flows - investing activities (641.7) (649.7) (733.7)
- ---------------------------------------------------------------------------------------------
Cash flows from financing activities:
Net change in short-term debt 191.0 (163.6) (170.6)
Issuance of long-term debt 418.1 734.9 914.0
Payments on long-term debt (314.9) (372.5) (461.2)
Dividends paid (91.2) (99.7) (108.6)
Other 5.2 7.4 28.9
- ---------------------------------------------------------------------------------------------
Net cash flows - financing activities 208.2 106.5 202.5
- ---------------------------------------------------------------------------------------------
Net increase (decrease) in cash and cash equivalents (45.6) 161.2 166.5
Cash and cash equivalents - beginning of year 112.2 66.6 227.8
- ---------------------------------------------------------------------------------------------
Cash and cash equivalents - end of year $ 66.6 $227.8 $394.3
- ---------------------------------------------------------------------------------------------
Reconciliation of net income to net cash flows from
operating activities:
Net income $288.1 $306.0 $369.1
Depreciation and amortization 245.8 278.4 334.5
Unremitted earnings of affiliates 4.3 (13.3) (19.0)
Deferred income taxes 5.2 63.9 57.4
Minority interest 7.0 26.5 15.7
Change in accounts receivable (67.5) 34.2 (56.2)
Change in inventories (81.8) (16.4) 25.4
Change in other operating assets 8.1 49.9 (42.8)
Change in operating liabilities (27.7) (30.5) 125.5
Additions to lease and loan loss reserves 17.2 11.0 12.3
Gains on divestitures (141.1)
Other (10.8) (5.3) 16.9
- ---------------------------------------------------------------------------------------------
Net cash flows from operating activities $387.9 $704.4 $697.7
- ---------------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of the financial statements.
25
<PAGE> 6
STATEMENT OF SHAREHOLDERS' EQUITY
in millions DANA CORPORATION
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
DEFERRED
PENSION
ADDITIONAL AND
COMMON PAID-IN RETAINED TRANSLATION SHAREHOLDERS'
STOCK CAPITAL EARNINGS ADJUSTMENTS EQUITY
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1994 $ 98.8 $ 61.0 $ 887.7 $ (107.7) $ 939.8
Net income for the year
ended December 31, 1995 288.1 288.1
Cash dividends declared (91.2) (91.2)
Issuance of shares in connection
with acquisitions 2.5 2.9 11.7 17.1
Deferred translation adjustments (3.7) (3.7)
Deferred pension expense
adjustments 9.3 9.3
Cost of shares reacquired (1.0) (1.0)
Issuance of shares for employee
stock plans .2 6.0 6.2
- ---------------------------------------------------------------------------------------------------------------------
Balance, December 31, 1995 101.5 68.9 1,096.3 (102.1) 1,164.6
Net income for the year
ended December 31, 1996 306.0 306.0
Cash dividends declared (99.7) (99.7)
Issuance of shares for defined
benefit pension plans 1.0 30.1 31.1
Deferred translation adjustments 3.4 3.4
Deferred pension expense
adjustments 13.5 13.5
Cost of shares reacquired (.2) (5.1) (5.3)
Issuance of shares for director and
employee stock plans .5 12.1 12.6
Issuance of shares in connection
with acquisitions .2 2.3 2.5
- ---------------------------------------------------------------------------------------------------------------------
Balance, December 31, 1996 103.0 106.0 1,304.9 (85.2) 1,428.7
NET INCOME FOR THE YEAR
ENDED DECEMBER 31, 1997 369.1 369.1
CASH DIVIDENDS DECLARED (108.6) (108.6)
ISSUANCE OF SHARES FOR DEFINED
BENEFIT PENSION PLANS 1.0 30.8 31.8
DEFERRED TRANSLATION ADJUSTMENTS (46.4) (46.4)
DEFERRED PENSION EXPENSE
ADJUSTMENTS (2.3) (2.3)
COST OF SHARES REACQUIRED (.3) (13.1) (13.4)
ISSUANCE OF SHARES FOR
EMPLOYEE STOCK PLANS 1.4 40.9 42.3
- ---------------------------------------------------------------------------------------------------------------------
BALANCE, DECEMBER 31, 1997 $ 105.1 $ 164.6 $ 1,565.4 $ (133.9) $ 1,701.2
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of the financial statements.
26
<PAGE> 7
NOTES TO FINANCIAL STATEMENTS
in millions except share and per share amounts DANA CORPORATION
- -------------------------------------------------------------------------------
NOTE 1. SUMMARY OF SIGNIFICANT
ACCOUNTING POLICIES
- -------------------------------------------------------------------------------
Dana Corporation is a global leader in the engineering, manufacturing and
distribution of components and systems for worldwide vehicular and industrial
manufacturers. Dana also owns Dana Credit Corporation (DCC), a leading provider
of lease financing services in certain markets.
The preparation of these financial statements requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Some of the more significant estimates include
depreciation and amortization of long-lived assets, deferred tax asset and
inventory valuations, environmental and warranty reserves, postemployment and
postretirement benefits, residual values of leased assets and allowances for
doubtful accounts. Actual results could differ from those estimates.
The following summary of significant accounting policies of Dana Corporation
is presented to assist the reader in evaluating the financial statements. Where
appropriate, certain amounts in 1995 and 1996 have been reclassified to conform
with the 1997 presentation.
PRINCIPLES OF CONSOLIDATION
Dana's financial statements include all subsidiaries in which Dana has the
ability to exercise significant influence over operating and financial policies.
Affiliated companies (20% to 50% ownership) are generally recorded in the
statements using the equity method of accounting. Operations of affiliates
outside North America accounted for on the equity method of accounting are
generally included for periods ended within two months of Dana's year end to
ensure preparation of financial statements on a timely basis. Less than
20%-owned companies are included in the financial statements at the cost of
Dana's investment. Dividends, royalties and fees from these cost basis
affiliates are recorded in Dana's financial statements when received.
FOREIGN CURRENCY TRANSLATION
The financial statements of the Company's subsidiaries and equity affiliates
outside the United States (U.S.), located in non-highly inflationary economies,
are measured using the local currency as the functional currency. Income and
expense items are translated at average monthly rates of exchange. Gains and
losses from currency transactions of these affiliates are included in net
earnings. Assets and liabilities of these affiliates are translated at the rates
of exchange at the balance sheet date. The resultant translation adjustments are
deferred as a separate component of shareholders' equity. For affiliates
operating in highly inflationary economies, non-monetary assets are translated
at historical exchange rates and monetary assets are translated at current
exchange rates. Translation adjustments are included in the determination of
income.
INVENTORIES
Inventories are valued at the lower of cost or market. Cost is determined
generally on the last-in, first-out basis for U.S. inventories and on the
first-in, first-out or average cost basis for international inventories.
LEASE FINANCING
Lease financing consists of direct financing leases, leveraged leases and
equipment on operating leases. Income on direct financing leases is recognized
by a method which produces a constant periodic rate of return on the outstanding
investment in the lease. Income on leveraged leases is recognized by a method
which produces a constant rate of return on the outstanding net investment in
the lease, net of the related deferred tax liability, in the years in which the
net investment is positive. Initial direct costs are deferred and amortized
using the interest method over the lease period. Equipment under operating
leases is recorded at cost, net of accumulated depreciation. Income from
operating leases is recognized ratably over the term of the leases.
ALLOWANCE FOR LOSSES ON LEASE FINANCING
Provisions for losses on lease financing receivables are determined on the
basis of loss experience and assessment of prospective risk. Resulting
adjustments to the allowance for losses are made to adjust net investment in
lease financing to an estimated collectible amount. Income recognition is
generally discontinued on accounts which are contractually past due and where no
payment activity has occurred within 120 days. Accounts are charged against the
allowance for losses when determined to be uncollectible. Accounts for which
equipment repossession has commenced as the primary means of recovery are
classified within other assets at their estimated realizable value.
GOODWILL
Cost in excess of net assets of companies acquired is generally amortized
over the estimated period of expected benefit, ranging from 10 to 40 years.
LOANS RECEIVABLE
Loans receivable consist primarily of loans to partnerships in which DCC has
an interest and loans secured by equipment and first mortgages on real property.
The loans to partnerships are secured by the partnerships' assets. Income on all
loans is recognized using the interest method. Interest income on impaired loans
is recognized either as cash is collected or on a cost recovery basis as
conditions warrant.
ALLOWANCE FOR LOSSES ON LOANS RECEIVABLE
Provisions for losses on loans receivable are determined on the basis of loss
experience and assessment of prospective risk. Resulting adjustments to the
allowance for losses are made to adjust loans receivable to an estimated
collectible amount. Income recognition is generally discontinued on accounts
which are contractually past due and where no
27
<PAGE> 8
NOTES TO FINANCIAL STATEMENTS
in millions DANA CORPORATION
- -------------------------------------------------------------------------------
NOTE 1. SUMMARY OF SIGNIFICANT
ACCOUNTING POLICIES (CONT.)
- -------------------------------------------------------------------------------
payment activity has occurred within 120 days. Accounts are charged against the
allowance for losses when determined to be uncollectible.
INCOME TAXES
Current tax liabilities and assets are recognized for the estimated taxes
payable or refundable on the tax returns for the current year. Deferred tax
liabilities or assets are recognized for the estimated future tax effects
attributable to temporary differences and carryforwards that result from events
that have been recognized differently between the financial statements and the
tax returns. The measurement of current and deferred tax liabilities and assets
is based on provisions of enacted tax laws. Deferred tax assets are reduced, if
necessary, by the amount of any tax benefits that are not expected to be
realized. Dana uses the "flow-through" method of accounting for investment tax
credits, except for investment tax credits arising from leveraged leases and
certain direct financing leases for which the deferred method is used for
financial statement purposes.
PROPERTIES AND DEPRECIATION
Property, plant and equipment are valued at historical costs. Depreciation is
recognized over the estimated useful lives of property, plant and equipment
using primarily the straight-line method for financial reporting purposes and
primarily accelerated depreciation methods for federal income tax purposes.
FINANCIAL INSTRUMENTS
The reported fair values of financial instruments are based on a variety of
factors. Where available, fair values represent quoted market prices for
identical or comparable instruments. Where quoted market prices are not
available, fair values have been estimated based on assumptions concerning the
amount and timing of estimated future cash flows and assumed discount rates
reflecting varying degrees of credit risk. Accordingly, the fair values may not
represent actual values of the financial instruments that could have been
realized as of December 31, 1996 and 1997, or that will be realized in the
future.
DERIVATIVE FINANCIAL INSTRUMENTS
The Company enters into various types of interest rate and foreign currency
agreements but does not trade in derivative financial instruments. Gains and
losses relating to qualifying hedges of firm commitments or anticipated
transactions are deferred and recognized as adjustments of carrying amounts when
the hedged transaction occurs. Interest rate swaps and caps are primarily used
to manage exposure to fluctuations in interest rates. Differentials paid or
received on interest rate agreements are accrued and recognized as adjustments
to interest expense. Premiums paid on interest rate caps are amortized to
interest expense over the terms of the agreements and unamortized premiums are
included in other assets.
DCC has one interest rate-based option which is marked to market and included
in other liabilities. Changes in the fair value of this instrument are reported
in other income.
ENVIRONMENTAL COMPLIANCE AND REMEDIATION
Environmental expenditures that relate to current operations are expensed or
capitalized as appropriate. Expenditures that relate to existing conditions
caused by past operations which do not contribute to current or future revenue
generation are expensed. Liabilities are recorded when environmental assessments
and/or remedial efforts are probable and the costs can be reasonably estimated.
Estimated costs are based upon currently enacted laws and regulations, existing
technology and the most probable method of remediation. The costs determined are
not discounted and exclude the effects of inflation and other societal and
economic factors. Where the cost estimates result in a range of equally probable
amounts, the lower end of the range is accrued.
PENSION PLANS
Annual net periodic pension costs under the Company's defined benefit pension
plans are determined on an actuarial basis. Dana's policy is to fund these costs
as accrued, including amortization of the initial unrecognized net obligation
over 15 years and obligations arising due to plan amendments over the period
benefited, through deposits with trustees. Benefits are determined based upon
employees' length of service, wages and a combination of length of service and
wages.
POSTRETIREMENT BENEFITS OTHER THAN PENSIONS
Annual net postretirement benefits liability and expense under the Company's
benefit plans are determined on an actuarial basis. Dana's current policy is to
pay these benefits as they become due. Benefits are determined primarily based
upon employees' length of service and include applicable employee cost sharing.
POSTEMPLOYMENT BENEFITS
Annual net postemployment benefits liability and expense under the Company's
benefit plans are accrued as service is rendered for those obligations that
accumulate or vest and can be reasonably estimated. Obligations that do not
accumulate or vest are recorded when payment of the benefits is probable and the
amounts can be reasonably estimated.
NET INCOME PER COMMON SHARE
Statement of Financial Accounting Standards (SFAS) No. 128, "Earnings Per
Share," is effective for periods ending after December 15, 1997. Accordingly,
basic and diluted income per share have been computed in accordance with this
statement. Prior periods have been adjusted to conform with the provisions of
this statement.
28
<PAGE> 9
NOTES TO FINANCIAL STATEMENTS
in millions except share and per share amounts DANA CORPORATION
- -------------------------------------------------------------------------------
STATEMENT OF CASH FLOWS
For purposes of reporting cash flows, the Company considers highly liquid
investments with a maturity of three months or less when purchased to be cash
equivalents.
STOCK-BASED COMPENSATION
SFAS No. 123, "Accounting for Stock-Based Compensation," encourages, but does
not require, companies to record compensation for stock-based employee
compensation plans at fair value. The Company has chosen to continue to account
for stock-based compensation using the intrinsic value method prescribed in
Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to
Employees," and related interpretations. Accordingly, compensation cost for
stock options is measured as the excess, if any, of the quoted market price of
the Company's stock at the date of grant over the amount an employee must pay to
acquire the stock.
NOTE 2. COMMON SHARES
- -------------------------------------------------------------------------------
In connection with employee stock plans, Dana reacquired 36,372 shares in
1995, 169,981 in 1996 and 344,697 in 1997. In 1996 and in 1997, Dana
contributed 1,000,000 shares of common stock to the Dana Corporation Pension
Plans Trust.
The following summarizes the common stock transactions for 1995, 1996 and
1997:
<TABLE>
<CAPTION>
1995 1996 1997
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Outstanding at
beginning of year 98,793,591 101,512,681 103,025,765
Issued for acquisitions 2,456,979 163,370
Issued for director and
employee stock plans 298,483 519,695 1,426,166
Issued for defined benefit
pension plans 1,000,000 1,000,000
Reacquired and retired (36,372) (169,981) (344,697)
- -------------------------------------------------------------------------------------------
Outstanding at end of year 101,512,681 103,025,765 105,107,234
- -------------------------------------------------------------------------------------------
Average outstanding
for the year 101,296,858 101,799,543 104,339,650
- -------------------------------------------------------------------------------------------
Plus: Incremental shares
from assumed
conversion of -
Deferred
compensation units 39,007 19,971 424,615
Deferred restricted
stock units 6,357
Stock options 361,996 548,008 1,036,576
- -------------------------------------------------------------------------------------------
Potentially dilutive shares 401,003 567,979 1,467,548
- -------------------------------------------------------------------------------------------
Adjusted average shares
outstanding for the year 101,697,861 102,367,522 105,807,198
- -------------------------------------------------------------------------------------------
</TABLE>
There are 5,000,000 common shares reserved for issuance in the event that the
Company issues debt securities with exchange, conversion or redemption rights
under its 1997 universal shelf registration.
NOTE 3. PREFERRED SHARE
PURCHASE RIGHTS
- -------------------------------------------------------------------------------
Under Dana's Preferred Share Purchase Rights Plan (Rights Plan), which is
designed to deter coercive or unfair takeover tactics, one Preferred Share
Purchase Right (Right) has been issued on each share of Dana common stock
outstanding on and after July 25, 1996. Each Right entitles the holder to
purchase 1/1000th of a share of Dana Series A Junior Participating Preferred
Stock, no par value, under certain circumstances. The Rights have no voting
rights and will expire on July 15, 2006, unless exercised, redeemed or exchanged
sooner.
Generally, the Rights will not be exercisable (or transferable apart from the
Dana common shares to which they are attached) unless a person or group
(Acquiring Person) becomes the beneficial owner of 15% or more of Dana's
outstanding common shares or commences a tender offer that would result in its
acquisition of a 15% position. In that event, the Rights will become exercisable
(except those owned by the Acquiring Person, which will become void), entitling
the holder of each Right to purchase, for $110 per share (subject to adjustment,
the Purchase Price), a number of Dana common shares having a market value equal
to two times the Purchase Price.
In addition, if Dana engages in certain mergers with or sells 50% or more of
its assets or earning power to an Acquiring Person (or persons acting for or
with an Acquiring Person), or engages in similar transactions, the Rights will
become exercisable (except those owned by the Acquiring Person, which will
become void), entitling the holder of each Right to purchase a number of common
shares of the acquiring or surviving company having a market value (as
determined under the Rights Plan) equal to two times the Purchase Price.
Dana's Board may redeem the Rights at a price of $.01 each at any time before
any person or group acquires 15% or more of Dana's common shares. If any person
or group becomes an Acquiring Person, but acquires less than 50% of Dana's
common shares, the Board may exchange each Right for one share of Dana common
stock.
NOTE 4. PREFERRED SHARES
- -------------------------------------------------------------------------------
Dana has authorized 5,000,000 shares of preferred stock, without par value,
including 1,000,000 shares which have been reserved for issuance under the
Rights Plan. At December 31, 1997, no shares of preferred stock had been issued.
29
<PAGE> 10
NOTES TO FINANCIAL STATEMENTS
in millions DANA CORPORATION
- -------------------------------------------------------------------------------
NOTE 5. INVENTORIES
- -------------------------------------------------------------------------------
The components of inventory are as follows:
December 31
1996 1997
- -------------------------------------------------------------------------------
Raw materials $ 209.9 $ 252.9
Work in process and finished goods 703.0 656.9
- -------------------------------------------------------------------------------
$ 912.9 $ 909.8
- -------------------------------------------------------------------------------
Inventories amounting to $437.2 and $467.7 at December 31, 1996 and 1997,
respectively, were valued using the LIFO method. If all inventories were valued
at replacement cost, inventories would be increased by $121.4 and $125.4 at
December 31, 1996 and 1997, respectively.
NOTE 6. INTERNATIONAL OPERATIONS
- -------------------------------------------------------------------------------
The following is a summary of the significant financial information of Dana's
consolidated international subsidiaries:
<TABLE>
<CAPTION>
December 31
1995 1996 1997
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Assets $1,948.3 $ 2,306.7 $ 2,493.9
Liabilities 1,133.0 1,340.6 1,468.7
Net sales 2,121.9 2,167.1 2,296.4
Net income 119.5 108.9 135.2
Dana's equity in:
Net assets 662.0 796.7 873.4
Net income 81.7 77.7 113.5
</TABLE>
Cumulative undistributed earnings of international subsidiaries for which
U.S. income taxes, exclusive of foreign tax credits, have not been provided
approximated $496.5 at December 31, 1997. Management intends to permanently
reinvest undistributed earnings of Dana's international subsidiaries;
accordingly, no U.S. income taxes have been provided on these undistributed
earnings. If the total undistributed earnings of international subsidiaries had
been remitted in 1997, a significant amount of the additional tax provision
would have been offset by foreign tax credits.
Dana's consolidated international subsidiaries are located throughout the
world with no individual subsidiary or the aggregate of all subsidiaries within
a given country accounting for more than 10% of consolidated sales or assets.
With the exception of certain subsidiaries located in Brazil, the functional
currency of the Company's international subsidiaries is the local currency.
Beginning in 1998, Brazil will report using the local currency as the functional
currency. Certain subsidiaries have transactions in currencies other than their
functional currencies and from time to time enter into forward and option
contracts to hedge the purchase of inventory and fixed assets or to sell
nonfunctional currency receipts. Currency forward and option contracts in the
aggregate are not material.
Dana has equity interests in a number of affiliated companies in Mexico,
South America, Asia and other areas of the world. The following is a summary of
the significant financial information of affiliated companies accounted for on
the equity method:
<TABLE>
<CAPTION>
December 31
1995 1996 1997
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Current assets $ 343.3 $ 371.4 $ 355.8
Other assets 244.2 272.6 276.4
Current liabilities 463.4 349.3 243.2
Other liabilities 54.8 180.3 132.4
Shareholders' equity 69.3 114.4 256.6
Net sales 682.5 743.1 803.9
Gross profit 140.8 125.2 159.2
Net income (loss) (22.1) 21.1 56.2
Dana's equity in:
Net assets 44.8 61.1 114.4
Net income (loss) (8.4) 10.7 26.8
</TABLE>
NOTE 7. INVESTMENTS IN
PARTNERSHIPS
- ------------------------------------------------------------------------------
DCC has ownership interests in several partnerships which are accounted for
under the equity method. In certain of these partnerships, DCC has ownership
interests exceeding 50%; however, they are not consolidated because DCC has no
general partner interest and only limited ability to control the partnerships'
activities. The partnerships are involved primarily in the leasing or financing
of equipment or real estate to commercial entities. DCC's share of earnings of
partnerships is included in income as earned. The investment in partnerships is
reduced as distributions are received.
Summarized financial information of the partnerships on a combined basis is
as follows:
<TABLE>
<CAPTION>
December 31
1995 1996 1997
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Assets $ 932.4 $ 900.3 $ 1,076.0
Liabilities 757.7 797.1 964.7
Partners' capital 174.7 103.2 111.3
Revenue 116.2 78.0 106.8
Net income 9.0 7.0 8.8
DCC's investments in
partnerships 44.5 25.8 75.1
DCC's earnings from investments
in partnerships 4.9 2.7 3.2
</TABLE>
The investments in partnerships include $19.2 representing amounts invested
in excess of DCC's share of the partnerships' book basis in net assets. These
amounts are amortized against earnings from partnerships over the expected
investment lives of the partnerships.
30
<PAGE> 11
NOTES TO FINANCIAL STATEMENTS
in millions DANA CORPORATION
- ------------------------------------------------------------------------------
NOTE 8. SHORT-TERM DEBT
- ------------------------------------------------------------------------------
Short-term funds for certain U.S. and international operations are obtained
through the issuance of commercial paper, short-term notes payable to banks and
bank overdrafts.
At December 31, 1997, Dana, excluding DCC, had no commercial paper
outstanding, $108.8 borrowed against uncommitted bank lines and $70.5 of notes
payable at its international subsidiaries. DCC had $178.6 of commercial paper
issued, $120.9 of notes payable and $25.4 borrowed against committed borrowing
lines.
Dana, excluding DCC, and DCC had committed borrowing lines of $475.0 and
$442.1, respectively, and uncommitted borrowing lines of $905.0 and $479.2. The
banks providing committed lines are compensated with facility or commitment
fees. Amounts paid are not considered to be material and no fees are required
for the uncommitted bank lines.
Selected details of short-term borrowings are as follows:
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE
INTEREST
AMOUNT RATE
- -------------------------------------------------------------------------------
<S> <C> <C>
Balance at December 31, 1996 $ 640.3 5.9%
Average during 1996 777.0 6.0
Maximum during 1996 (month end) 891.2 5.9
BALANCE AT DECEMBER 31, 1997 $ 504.2 4.8%
AVERAGE DURING 1997 518.9 5.4
MAXIMUM DURING 1997 (MONTH END) 652.1 6.0
</TABLE>
NOTE 9. LONG-TERM DEBT
- -------------------------------------------------------------------------------
December 31
1996 1997
- -------------------------------------------------------------------------------
Dana, excluding consolidated
subsidiaries, indebtedness --
Unsecured notes payable,
fixed rates, 5.44% - 7.39%,
due 1998 to 2002 $ 875.0 $ 1,120.0
Unsecured notes payable,
variable rates, 6.45% - 6.54%,
due 1998 60.0 60.0
Various industrial revenue bonds and other 9.0 7.8
DCC indebtedness --
Various notes payable, unsecured,
variable rates, 4.03% - 8.05%,
due 1998 to 2002 381.5 525.1
Various notes payable, unsecured,
fixed rates, 5.98% - 9.68%,
due 1998 to 2006 303.1 378.6
Various notes payable, non-recourse to issuer,
fixed rates averaging 6.80% - 12.05%,
due 1998 to 2010 23.7 58.2
Indebtedness of other consolidated subsidiaries 45.4 28.6
- -------------------------------------------------------------------------------
$1,697.7 $ 2,178.3
- -------------------------------------------------------------------------------
Interest paid on short-term and long-term debt was $143.0, $148.8 and $181.3
during 1995, 1996 and 1997, respectively.
The aggregate amounts of maturities of all long-term debt for each of the
five years succeeding December 31, 1997 are as follows: 1998, $432.7; 1999,
$393.3; 2000, $469.9; 2001, $416.1 and 2002, $272.7.
Under a universal shelf registration filed in December 1997, the Company may
issue debt or equity securities, or a combination thereof, in an aggregate
amount not to exceed $600.
NOTE 10. INTEREST RATE
AGREEMENTS
- -------------------------------------------------------------------------------
Dana and DCC enter into interest rate agreements to manage interest rate
risk, thereby reducing exposure to future interest rate movements. Under
interest rate swap agreements, Dana agrees with other parties to exchange, at
specific intervals, the difference between fixed rate and floating rate interest
amounts calculated by reference to an agreed notional amount. At December 31,
1997, Dana was committed to pay an average fixed rate of 6.6% and receive a
variable rate of 6.4% on notional amounts of $60. These interest rate swaps
expire in 1998.
At December 31, 1997, DCC was committed to pay an average variable rate of
5.83% and receive a fixed rate of 5.14% on notional amounts of $15 and to
receive an average variable rate of 6.2% and pay an average fixed rate of 7.1%
on notional amounts of $420. DCC's notional amounts of interest rate swaps
expire as follows: 1998, $81.5; 1999, $98.7; 2000, $156.8; 2001, $46.5 and 2002,
$51.5.
To reduce its interest rate obligations under an existing swap agreement
having a notional amount of $70.0, DCC granted the counterparty an option,
expiring in 2000, to extend the original maturity to 2007 at a fixed rate to DCC
of 9%. This option has been marked to market.
NOTE 11. STOCK OPTION PLANS
- -------------------------------------------------------------------------------
The Company's 1997 Amended Stock Option Plan (1997 Plan) provides for the
granting of options to designated employees at prices no less than 100% of the
market value at the date of grant. The options are exercisable for a period not
to exceed ten years from date of grant. The 1997 Plan provides for the granting
of stock appreciation rights separately or in conjunction with all or any part
of an option, either at the time of grant or at any subsequent time during the
term of the option.
31
<PAGE> 12
NOTES TO FINANCIAL STATEMENTS
in millions share and per share amounts DANA CORPORATION
- -------------------------------------------------------------------------------
NOTE 11. STOCK OPTION PLANS
(CONT.)
- -------------------------------------------------------------------------------
The following summarizes the stock option transactions under the 1997 Plan
and former employee stock option plans for the years ended December 31, 1995,
1996 and 1997:
<TABLE>
<CAPTION>
NUMBER WEIGHTED AVERAGE
OF SHARES EXERCISE PRICE
- -------------------------------------------------------------------------------
<S> <C> <C>
Outstanding at
December 31, 1994 4,111,403 $ 23.17
Granted - 1995 991,000 31.06
Exercised - 1995 (223,430) 17.93
Cancelled - 1995 (10,600) 24.18
- -------------------------------------------------------------------------------
Outstanding at
December 31, 1995 4,868,373 $ 25.01
Granted - 1996 1,396,250 28.13
Exercised - 1996 (417,260) 19.46
Cancelled - 1996 (10,075) 24.13
- ------------------------------------------------------------------------------
Outstanding at
December 31, 1996 5,837,288 $ 26.15
Granted - 1997 1,067,900 38.44
Exercised - 1997 (1,332,210) 22.90
Cancelled - 1997 (66,195) 28.23
- ------------------------------------------------------------------------------
Outstanding at
December 31, 1997 5,506,783 $ 29.30
- ------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE WEIGHTED WEIGHTED
RANGE OF NUMBER OF REMAINING AVERAGE NUMBER OF AVERAGE
EXERCISE OPTIONS CONTRACTUAL EXERCISE OPTIONS EXERCISE
PRICES OUTSTANDING LIFE IN YEARS PRICE EXERCISABLE PRICE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$16.38-$18.75 257,168 2.4 $17.74 257,168 $17.74
$20.16-$29.06 3,283,090 6.7 26.76 2,087,596 25.87
$31.06-$38.44 1,966,525 8.6 35.05 473,375 31.06
- -------------------------------------------------------------------------------
5,506,783 2,818,139
- -------------------------------------------------------------------------------
</TABLE>
At December 31, 1997, 3,478,026 shares were available for future grants. The
total shares available for future grants include 350,000 shares which may, at
the discretion of a committee of the Board of Directors, be issued for stock
distributions under the Company's Additional Compensation Plan (ACP).
No expense has been charged to income relating to stock options. If the fair
value method of accounting for stock options prescribed by SFAS No. 123 had been
used, the expense relating to the stock options would have been $.6 in 1995,
$1.9 in 1996 and $3.4 in 1997. Pro forma net income and earnings per share would
have been as follows:
<TABLE>
<CAPTION>
1995 1996 1997
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Net Income $ 287.5 $ 304.1 $ 365.7
Basic EPS 2.84 2.99 3.51
Diluted EPS 2.83 2.97 3.45
</TABLE>
The above pro forma effect on net income is not representative of the pro
forma effect on net income that will be disclosed in future years because it
does not take into consideration pro forma compensation expense relating to
grants made prior to 1995.
The fair value of each option grant was estimated on the date of grant using
the Black-Scholes model with the following assumptions:
<TABLE>
<CAPTION>
1995 1996 1997
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Risk-free interest rate 6.0% 6.5% 6.2%
Dividend yield 3.0% 3.0% 2.6%
Expected life 5.4 years 5.4 years 5.3 YEARS
Stock price volatility 29.3% 27.3% 19.6%
</TABLE>
The Company also has a Directors' Stock Option Plan for non-employee
directors. The Plan provides for the automatic granting of options at prices
equal to the market value at the date of grant. The options are exercisable
after one year for a period not to exceed ten years from date of grant. In 1995,
options were granted to purchase 24,000 shares at $24.81 per share. No options
were exercised under this Plan during 1995. During 1996, options were granted to
purchase 21,000 shares at $32.25 per share, options to purchase 6,000 shares
were exercised at $26.56 per share and 3,000 options were forfeited. During
1997, options were granted to purchase 24,000 shares at $31.81 per share. No
options were exercised under this Plan during 1997. At December 31, 1997, there
were 99,000 options outstanding at exercise prices ranging from $24.25 to $32.25
per share, options for 75,000 shares were exercisable and there were 22,000
shares available for future grants.
NOTE 12. STOCK PURCHASE PLAN
- -------------------------------------------------------------------------------
All full-time U.S. and certain non-U.S. employees are eligible to participate
in Dana's Employees' Stock Purchase Plan (SPP). The SPP provides that
participants may authorize Dana to withhold up to 15% of their earnings and
deposit such amounts with an independent custodian. The custodian, as nominee
for the participants, causes Dana common stock to be purchased at prevailing
market prices. The shares purchased are allocated to the participants' accounts
and upon request are distributed to the participants.
Under the SPP, Dana contributes on behalf of each participant up to 50% of
the participant's contributions. The Company's contributions will accumulate
over a five-year period, provided that the shares are left in the SPP. If any
shares are withdrawn by a participant before the end of five years, the amount
of the Company match toward those shares will depend on the period of time that
the shares have been in the SPP. The custodian has caused to be purchased
1,025,354 shares in 1995, 1,069,720 shares in 1996 and 947,950 shares in 1997 of
Dana's common stock on behalf of the participants and the Company's charge to
expense amounted to $5.2 in 1995, $6.3 in 1996 and $7.4 in 1997.
NOTE 13. ADDITIONAL COMPENSATION PLANS
- ------------------------------------------------------------------------------
Dana has numerous additional compensation plans, including gain sharing and
group incentive plans, which provide for payments computed under formulas which
recognize increased productivity and improved performance.
32
<PAGE> 13
NOTES TO FINANCIAL STATEMENTS
in millions share and per share amounts DANA CORPORATION
- -------------------------------------------------------------------------------
The total amount earned by Dana employees from all such plans amounted to
$116.7, $112.1 and $136.4 in 1995, 1996 and 1997, respectively.
Under the ACP, in which certain officers and other key employees participate,
a percentage of participants' compensation is accrued for additional
compensation if certain profit levels are attained. Awards under the ACP are
paid in cash immediately or, at the discretion of the Board's Compensation
Committee, are deferred. Deferred awards may be paid in cash, stock or a
combination of both. Dana awarded (based on prior period performance) $10.6 in
1995, $14.2 in 1996 and $11.3 in 1997; in addition, 16,891, 16,438 and 7,074
shares of Dana's common stock were issued and amounts equivalent to dividends
and interest of $.6, $.7 and $.9 were credited to deferred awards in 1995, 1996
and 1997, respectively. Total charges to expense relating to the ACP amounted to
$16.1 in 1995, $13.2 in 1996 and $20.4 in 1997.
The Company also has a Restricted Stock Plan (RSP) whereby certain key
employees are granted restricted shares of common stock subject to forfeiture
until the restrictions lapse or terminate. With certain exceptions, the employee
must remain with the Company for a period of years after the date of grant to
receive the full number of shares granted. Shares granted in 1995, 1996 and 1997
were 24,000, 25,000 and 47,245, respectively. In 1997, the RSP was amended to
allow the participants to convert restricted stock into restricted stock units
under certain conditions. During 1997, 27,491 restricted shares were converted
to restricted units. The restricted units are payable in unrestricted stock upon
retirement or termination of employment. Total charges to expense for the RSP
amounted to $.6, $.8 and $.9 in 1995, 1996 and 1997, respectively. At December
31, 1997, 564,948 shares were available for future issuance under the RSP.
NOTE 14. PENSIONS
- -------------------------------------------------------------------------------
Dana provides retirement benefits for substantially all of its employees
under several defined benefit and defined contribution pension plans. Pension
expense approximated $62.4 in 1995, $74.0 in 1996 and $70.5 in 1997.
In 1996 and in 1997, in addition to cash contributions, 1,000,000 shares of
Dana common stock, with a market value of $31.1 in 1996 and $31.8 in 1997, were
contributed to the Dana Corporation Pension Plans Trust.
Net periodic pension cost for defined benefit plans is computed as follows:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Year Ended December 31
1995 1996 1997
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Service cost $ 36.4 $ 48.3 $ 47.5
Interest cost 123.5 127.0 131.1
Actual return on
plan assets (407.9) (186.0) (394.6)
Amortization of
unrecognized prior
service cost 9.0 16.1 14.9
Amortization of initial
unrecognized net
obligation 5.0 4.2 4.2
Unrecognized gain 285.0 53.0 250.2
- -------------------------------------------------------------------------------
Net periodic
pension cost $ 51.0 $ 62.6 $ 53.3
- -------------------------------------------------------------------------------
</TABLE>
The funded status of defined benefit plans at December 31, 1996 was as
follows:
<TABLE>
<CAPTION>
ACCUMULATED ASSETS
BENEFITS EXCEED
EXCEED ACCUMULATED
ASSETS BENEFITS TOTAL
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Actuarial present
value of:
Vested benefits $ 486.0 $ 1,103.3 $ 1,589.3
Non-vested benefits 46.0 90.1 136.1
- -------------------------------------------------------------------------------
Accumulated benefit
obligation $ 532.0 $ 1,193.4 $ 1,725.4
- -------------------------------------------------------------------------------
Actuarial present value
of projected benefit
obligation $ (548.8) $(1,286.9) $ (1,835.7)
Plan assets at fair value 442.5 1,492.8 1,935.3
- -------------------------------------------------------------------------------
Funded status $ (106.3) $ 205.9 $ 99.6
- -------------------------------------------------------------------------------
Unrecognized prior
service cost $ (15.7) $ (57.2) $ (72.9)
Unrecognized net gain
(loss) (6.9) 238.3 231.4
Accrued pension cost (68.0) 26.2 (41.8)
Unrecognized initial
obligation (15.7) (1.4) (17.1)
- -------------------------------------------------------------------------------
$ (106.3) $ 205.9 $ 99.6
- -------------------------------------------------------------------------------
</TABLE>
The funded status of defined benefit plans at December 31, 1997 was as
follows:
<TABLE>
<CAPTION>
ACCUMULATED ASSETS
BENEFITS EXCEED
EXCEED ACCUMULATED
ASSETS BENEFITS TOTAL
<S> <C> <C> <C>
- ------------------------------------------------------------------------------
Actuarial present
value of:
Vested benefits $ 58.1 $ 1,614.3 $ 1,672.4
Non-vested benefits 6.5 93.9 100.4
- ------------------------------------------------------------------------------
Accumulated benefit
obligation $ 64.6 $ 1,708.2 $ 1,772.8
- ------------------------------------------------------------------------------
Actuarial present value
of projected benefit
obligation $ (71.6) $ (1,806.3) $ (1,877.9)
Plan assets at fair value .3 2,147.2 2,147.5
- ------------------------------------------------------------------------------
Funded status $ (71.3) $ 340.9 $ 269.6
- ------------------------------------------------------------------------------
Unrecognized prior
service cost $ (4.1) $ (64.5) $ (68.6)
Unrecognized net gain
(loss) (10.8) 376.9 366.1
Accrued pension cost (54.9) 39.8 (15.1)
Unrecognized initial
obligation (1.5) (11.3) (12.8)
- ------------------------------------------------------------------------------
$ (71.3) $ 340.9 $ 269.6
- ------------------------------------------------------------------------------
</TABLE>
33
<PAGE> 14
NOTES TO FINANCIAL STATEMENTS
in millions DANA CORPORATION
- ------------------------------------------------------------------------------
NOTE 14. PENSIONS (CONT.)
- ------------------------------------------------------------------------------
The assumptions used to determine pension costs and projected benefit
obligations are as follows:
<TABLE>
<CAPTION>
U.S. Plans
1995 1996 1997
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Expected long-term rate
of return on plan assets 8.5 % 8.5% 8.75%
Discount rate 6.75% 7.5% 7.0 %
Rate of increase in future
compensation levels 5% 5% 5%
International Plans
1995 1996 1997
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Expected long-term rates
of return on plan assets 8 - 9% 8 - 9% 7.5 - 9%
Discount rates 7 - 8% 7 - 8% 5 - 8%
Rates of increase in future
compensation levels 3 - 7.5% 3 - 7.5% 3 - 7.5%
</TABLE>
Plan assets are invested in a diversified portfolio that consists primarily
of equity and debt securities.
NOTE 15. MEDICAL CARE AND
OTHER BENEFITS
- ------------------------------------------------------------------------------
Dana and certain of its subsidiaries provide medical and life insurance
benefits for certain active and retired employees. These benefits are provided
through various insurance carriers whose charges to Dana are based on the
benefits paid during the year. Substantially all of the retiree medical cost
relates to North American retirees since most international retirees are covered
by government-sponsored programs.
Net annual postretirement benefit cost is computed as follows:
<TABLE>
<CAPTION>
Year Ended December 31
1995 1996 1997
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Service cost $ 9.2 $ 11.2 $ 12.6
Interest cost 58.4 58.7 67.0
Net amortization and
deferral (17.2) (13.8) (8.1)
- -------------------------------------------------------------------------------
Net annual postretirement
benefit cost $ 50.4 $ 56.1 $ 71.5
- -------------------------------------------------------------------------------
</TABLE>
Postretirement benefit obligations, none of which are funded, are summarized
as follows:
<TABLE>
<CAPTION>
December 31
1996 1997
- -------------------------------------------------------------------------------
<S> <C> <C>
Accumulated postretirement benefit
obligations:
Retirees and dependents $ 590.5 $ 670.4
Active participants eligible to
retire and receive benefits 117.5 143.7
Active participants not yet fully
eligible 143.5 177.5
- -------------------------------------------------------------------------------
Total accumulated postretirement
benefit obligation 851.5 991.6
Unamortized plan amendments 59.7 50.9
Unamortized net loss (67.1) (153.0)
- -------------------------------------------------------------------------------
Accrued postretirement benefits
other than pensions $ 844.1 $ 889.5
- -------------------------------------------------------------------------------
</TABLE>
The discount rate used in determining the accumulated postretirement benefit
obligation was 7.75% in 1996 and 7% in 1997. The assumed medical costs trend
rates result in per capita net incurred medical claims increasing 7.8% in 1998.
The rate decreases to 5% over an 11-year period. If the assumed medical costs
trend rates were increased by 1%, the accumulated postretirement benefit
obligation as of December 31, 1997 would increase by $78.9 and the aggregate of
the service and interest cost components of the net annual postretirement
benefit cost would be increased by $6.9.
NOTE 16. BUSINESS SEGMENTS
- -------------------------------------------------------------------------------
Dana operates principally in three business segments: Vehicular, Industrial and
Lease Financing. The Vehicular segment consists primarily of operations which
manufacture and market axles, structural components, joints and shafts and
engine parts (such as pistons, piston rings, filters and gaskets). The
Industrial segment operations manufacture and market various products, including
those for off-highway motor vehicles. The Lease Financing segment consists of
DCC, whose primary operating subsidiaries are engaged in leasing and finance
operations.
Lease financing revenue includes lease financing income, fees and interest.
Other income includes dividends, interest and the gains recorded on
divestitures. Charges relating to restructuring and rationalization were charged
to operating income. Other expense includes interest and corporate expenses.
Corporate assets include cash, marketable securities, accounts receivable and
investments (excluding assets which can be identified to lease financing).
The "Other International" geographic area is comprised primarily of Brazil
and Canada, neither of which exceeds 10% of the consolidated amounts. Interarea
transfers between countries are transferred at the prevailing market price.
Export sales from the U.S. to customers outside the U.S. amounted to $554.6 in
1995, $675.6 in 1996 and $696.8 in 1997. Total export sales (including sales to
Dana's international subsidiaries which are eliminated for financial state-
34
<PAGE> 15
NOTES TO FINANCIAL STATEMENTS
in millions DANA CORPORATION
- -------------------------------------------------------------------------------
ment presentation) were $735.1, $847.3 and $927.3 in 1995, 1996 and 1997,
respectively.
Worldwide sales to Ford Motor Company and subsidiaries amounted to $1,299.3,
$1,263.5 and $1,372.6 in 1995, 1996 and 1997, respectively, which represented
17%, 16% and 17% of Dana's consolidated sales. Sales to Chrysler Corporation and
subsidiaries in 1995, 1996 and 1997 amounted to $968.0, $1,104.1 and $1,181.1,
respectively, representing 13%, 14% and 14% of Dana's consolidated sales. Sales
to Ford and Chrysler were primarily from the Company's Vehicular segment. No
other customer accounted for more than 10% of Dana's consolidated sales.
SFAS No. 131, "Disclosures about Segments of an Enterprise and Related
Information," issued in June 1997, is effective for fiscal years beginning after
December 15, 1997. This statement, which requires expanded disclosure of segment
information, will be adopted in 1998.
<TABLE>
<CAPTION>
LEASE
VEHICULAR INDUSTRIAL FINANCING CONSOLIDATED
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Year Ended December 31, 1995
Sales to customers $ 6,069.8 $ 1,526.5 $ 1.4 $ 7,597.7
Lease financing revenue 155.3 155.3
- -----------------------------------------------------------------------------------------------------
Total revenue $ 6,069.8 $ 1,526.5 $ 156.7 $ 7,753.0
- -----------------------------------------------------------------------------------------------------
Operating income $ 585.9 $ 103.7 $ 22.8 $ 712.4
- -----------------------------------------------------------------------------------------------------
Other income 33.7
Other expense (232.9)
- -----------------------------------------------------------------------------------------------------
Income before income taxes $ 513.2
- -----------------------------------------------------------------------------------------------------
Assets identified to segments $ 2,077.5 $ 614.8 $ 1,468.4 $ 4,160.7
- -----------------------------------------------------------------------------------------------------
Corporate assets 1,552.8
- -----------------------------------------------------------------------------------------------------
Total assets $ 5,713.5
- -----------------------------------------------------------------------------------------------------
Depreciation $ 177.0 $ 44.2 $ 2.0
- -----------------------------------------------------------------------------------------
Capital expenditures $ 332.9 $ 61.4 $ 10.7
- -----------------------------------------------------------------------------------------
Year Ended December 31, 1996
Sales to customers $ 6,130.5 $ 1,555.8 $ 7,686.3
Lease financing revenue $ 176.5 176.5
- -----------------------------------------------------------------------------------------------------
Total revenue $ 6,130.5 $ 1,555.8 $ 176.5 $ 7,862.8
- -----------------------------------------------------------------------------------------------------
Operating income $ 574.7 $ 109.9 $ 39.6 $ 724.2
- ------------------------------------------------------------------------------------------
Other income 26.7
Other expense (259.2)
- -----------------------------------------------------------------------------------------------------
Income before income taxes $ 491.7
- -----------------------------------------------------------------------------------------------------
Assets identified to segments $ 2,255.9 $ 654.0 $ 1,669.1 $ 4,579.0
- ------------------------------------------------------------------------------------------
Corporate assets 1,581.0
- -----------------------------------------------------------------------------------------------------
Total assets $ 6,160.0
- -----------------------------------------------------------------------------------------------------
Depreciation $ 192.0 $ 54.5 $ 5.8
- ------------------------------------------------------------------------------------------
Capital expenditures $ 262.0 $ 65.8 $ 12.7
YEAR ENDED DECEMBER 31, 1997
SALES TO CUSTOMERS $ 6,323.2 $ 1,967.6 $ 8,290.8
LEASE FINANCING REVENUE $ 193.6 193.6
- -----------------------------------------------------------------------------------------------------
TOTAL REVENUE $ 6,323.2 $ 1,967.6 $ 193.6 $ 8,484.4
- -----------------------------------------------------------------------------------------------------
OPERATING INCOME $ 483.3 $ 141.5 $ 35.7 $ 660.5
- ------------------------------------------------------------------------------------------
OTHER INCOME 285.0
OTHER EXPENSE (291.4)
- -----------------------------------------------------------------------------------------------------
INCOME BEFORE INCOME TAXES $ 654.1
- -----------------------------------------------------------------------------------------------------
ASSETS IDENTIFIED TO SEGMENTS $ 2,733.6 $ 844.7 $ 1,860.9 $ 5,439.2
- ------------------------------------------------------------------------------------------
CORPORATE ASSETS 1,679.5
- -----------------------------------------------------------------------------------------------------
TOTAL ASSETS $ 7,118.7
- -----------------------------------------------------------------------------------------------------
DEPRECIATION $ 225.2 $ 63.7 $ 4.5
- -----------------------------------------------------------------------------------------------------
CAPITAL EXPENDITURES $ 338.5 $ 75.4 $ 12.1
</TABLE>
35
<PAGE> 16
NOTES TO FINANCIAL STATEMENTS
in millions DANA CORPORATION
- --------------------------------------------------------------------------------
NOTE 16. BUSINESS SEGMENTS (CONT.)
<TABLE>
<CAPTION>
ADJUSTMENTS
UNITED OTHER AND
STATES EUROPE INTERNATIONAL ELIMINATIONS TOTAL
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Year Ended December 31, 1995
Sales to customers $ 5,475.9 $ 977.0 $ 1,144.8 $ 7,597.7
Lease financing revenue 104.0 37.3 14.0 155.3
Interarea transfers 180.5 12.6 118.7 $ (311.8)
- -------------------------------------------------------------------------------------------------------------------------
$ 5,760.4 $ 1,026.9 $ 1,277.5 $ (311.8) $ 7,753.0
- -------------------------------------------------------------------------------------------------------------------------
Operating income $ 573.7 $ 36.7 $ 102.0 $ 712.4
Other income 10.3 23.4 33.7
Other expense (223.8) (9.1) (232.9)
- -------------------------------------------------------------------------------------------------------------------------
Income before income taxes $ 360.2 $ 27.6 $ 125.4 $ 513.2
- -------------------------------------------------------------------------------------------------------------------------
Assets identified $ 2,631.3 $ 863.8 $ 665.6 $ 4,160.7
Corporate assets 1,244.7 135.4 172.7 1,552.8
- -------------------------------------------------------------------------------------------------------------------------
Total assets $ 3,876.0 $ 999.2 $ 838.3 $ 5,713.5
- -------------------------------------------------------------------------------------------------------------------------
Year Ended December 31, 1996
Sales to customers $ 5,519.2 $ 1,086.3 $ 1,080.8 $ 7,686.3
Lease financing revenue 122.4 45.2 8.9 176.5
Interarea transfers 171.7 19.2 128.6 $ (319.5)
- -------------------------------------------------------------------------------------------------------------------------
$ 5,813.3 $ 1,150.7 $ 1,218.3 $ (319.5) $ 7,862.8
- -------------------------------------------------------------------------------------------------------------------------
Operating income $ 589.4 $ 60.7 $ 74.1 $ 724.2
Other income 26.7 26.7
Other expense (240.8) (24.2) 5.8 (259.2)
- -------------------------------------------------------------------------------------------------------------------------
Income before income taxes $ 375.3 $ 36.5 $ 79.9 $ 491.7
- -------------------------------------------------------------------------------------------------------------------------
Assets identified $ 2,824.0 $ 1,004.0 $ 751.0 $ 4,579.0
Corporate assets 1,294.4 120.8 165.8 1,581.0
- -------------------------------------------------------------------------------------------------------------------------
Total assets $ 4,118.4 $ 1,124.8 $ 916.8 $ 6,160.0
- -------------------------------------------------------------------------------------------------------------------------
YEAR ENDED DECEMBER 31, 1997
SALES TO CUSTOMERS $ 5,994.4 $ 1,124.8 $ 1,171.6 $ 8,290.8
LEASE FINANCING REVENUE 134.5 50.9 8.2 193.6
INTERAREA TRANSFERS 396.4 72.2 198.6 $ (667.2)
- -------------------------------------------------------------------------------------------------------------------------
$ 6,525.3 $ 1,247.9 $ 1,378.4 $ (667.2) 8,484.4
- -------------------------------------------------------------------------------------------------------------------------
OPERATING INCOME $ 551.5 $ 26.7 $ 82.3 $ 660.5
OTHER INCOME 205.2 76.4 3.4 285.0
OTHER EXPENSE (349.1) 49.1 8.6 (291.4)
- -------------------------------------------------------------------------------------------------------------------------
INCOME BEFORE INCOME TAXES $ 407.6 $ 152.2 $ 94.3 $ 654.1
- -------------------------------------------------------------------------------------------------------------------------
ASSETS IDENTIFIED $ 3,466.2 $ 1,112.6 $ 860.4 $ 5,439.2
CORPORATE ASSETS 1,582.7 (18.6) 115.4 1,679.5
- -------------------------------------------------------------------------------------------------------------------------
TOTAL ASSETS $ 5,048.9 $ 1,094.0 $ 975.8 $ 7,118.7
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
36
<PAGE> 17
NOTES TO FINANCIAL STATEMENTS
in millions DANA CORPORATION
- -------------------------------------------------------------------------------
NOTE 17. ESTIMATED INCOME TAXES
- -------------------------------------------------------------------------------
Income tax expense (benefit) consisted of the
following components:
<TABLE>
<CAPTION>
Year Ended December 31
1995 1996 1997
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Current
U.S. Federal $ 68.0 $ 53.7 $ 147.5
U.S. State and Local 32.2 22.5 43.4
International 46.0 16.0 53.4
- -------------------------------------------------------------------------------
146.2 92.2 244.3
Deferred
U.S. Federal 48.6 80.0 71.6
International (13.6) (5.9) (22.3)
- -------------------------------------------------------------------------------
35.0 74.1 49.3
- -------------------------------------------------------------------------------
Total expense $ 181.2 $ 166.3 $ 293.6
- -------------------------------------------------------------------------------
</TABLE>
Deferred tax benefits (liabilities) are comprised of the following:
<TABLE>
<CAPTION>
December 31
1995 1996 1997
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Postretirement benefits
other than pensions $ 373.1 $ 362.4 $ 351.4
Postemployment benefits 44.9 47.3 55.2
Expense accruals 116.2 100.2 162.6
Inventory reserves 4.2 7.0 8.0
Pension accruals 4.9 1.9
Net operating loss
carryforwards 24.3 39.0 46.3
Other 9.6 26.0 32.2
- -------------------------------------------------------------------------------
Deferred tax benefits 577.2 583.8 655.7
- -------------------------------------------------------------------------------
Depreciation -
non-leasing (105.6) (129.9) (139.1)
Leasing activities (243.6) (299.0) (357.6)
Valuation allowances (4.8) (30.4)
Pension accruals (12.3)
Other (2.6) (2.6) (4.2)
- -------------------------------------------------------------------------------
Deferred tax liabilities (351.8) (436.3) (543.6)
- -------------------------------------------------------------------------------
Net deferred tax benefits $ 225.4 $ 147.5 $ 112.1
- -------------------------------------------------------------------------------
</TABLE>
The Company has traditionally been a taxpayer in the U.S. and accordingly
expects to realize substantially all of the deferred tax benefits attributable
to the Company's U.S. operations in the future. Valuation allowances are
provided for deferred benefits if the likelihood of future earnings is not
determinable. During 1997, the Company increased the valuation allowance by
$25.6, including $22.6 to reflect uncertainties related to the rationalization
of its operations in France. Income taxes paid during 1995, 1996 and 1997
amounted to $119.5, $107.6 and $185.7, respectively.
The effective tax rates differ from the U.S. Federal income tax rate for the
following reasons:
<TABLE>
<CAPTION>
Year Ended December 31
1995 1996 1997
- -----------------------------------------------------------------------------
<S> <C> <C> <C>
U.S. Federal income
tax rate 35.0% 35.0% 35.0%
Increase (reductions) in
taxes resulting from:
International income (2.8) (4.3) 6.0
Capital loss utilization (1.0) (.3) (.8)
Investment tax credits (.3) (.3) (.3)
Amortization of
goodwill .6 .6 .4
State and local income
taxes, net of Federal
income tax benefit 4.0 3.0 4.3
Miscellaneous items (.2) .1 .3
- -------------------------------------------------------------------------------
Estimated taxes on income 35.3% 33.8% 44.9%
- -------------------------------------------------------------------------------
</TABLE>
NOTE 18. COMPOSITION OF CERTAIN
BALANCE SHEET AMOUNTS
- -------------------------------------------------------------------------------
The following items comprise the net amounts indicated in the respective
balance sheet captions:
<TABLE>
<CAPTION>
December 31
1996 1997
- ------------------------------------------------------------------------------
<S> <C> <C>
INVESTMENTS AND OTHER ASSETS
Goodwill $ 285.3 $ 546.2
Investments at equity 86.9 197.9
Loans receivable 208.2 168.8
Intangible pension asset 35.0 20.4
Other 195.2 231.4
- ------------------------------------------------------------------------------
$ 810.6 $ 1,164.7
- ------------------------------------------------------------------------------
PROPERTY, PLANT AND EQUIPMENT, NET
Land and improvements to land $ 90.4 $ 86.9
Buildings and building fixtures 684.6 771.1
Machinery and equipment 2,867.0 3,053.3
- -------------------------------------------------------------------------------
3,642.0 3,911.3
Less: Accumulated depreciation 1,817.2 1,866.5
- ------------------------------------------------------------------------------
$ 1,824.8 $ 2,044.8
- ------------------------------------------------------------------------------
DEFERRED EMPLOYEE BENEFITS
Postretirement other than pension $ 844.1 $ 889.7
Postemployment 81.9 81.9
Pension 79.4 57.3
Compensation 20.2 33.6
- ------------------------------------------------------------------------------
$ 1,025.6 $ 1,062.5
- ------------------------------------------------------------------------------
LEASE FINANCING
Direct financing leases $ 583.4 $ 665.8
Leveraged leases 594.6 655.3
Property on operating leases,
net of accumulated depreciation 40.1 61.6
Allowance for credit losses (50.8) (52.6)
- ------------------------------------------------------------------------------
$ 1,167.3 $ 1,330.1
- ------------------------------------------------------------------------------
</TABLE>
37
<PAGE> 18
NOTES TO FINANCIAL STATEMENTS
in millions DANA CORPORATION
- -------------------------------------------------------------------------------
NOTE 18. COMPOSITION OF CERTAIN
BALANCE SHEET AMOUNTS
(CONT.)
- -------------------------------------------------------------------------------
The components of the net investment in direct financing leases are as
follows:
<TABLE>
<CAPTION>
December 31
1996 1997
- -------------------------------------------------------------------------------
<S> <C> <C>
Total minimum lease payments $ 638.1 $ 743.7
Residual values 66.0 89.5
Deferred initial direct costs 14.2 15.5
- -------------------------------------------------------------------------------
718.3 848.7
Less: Unearned income 134.9 182.9
- -------------------------------------------------------------------------------
$ 583.4 $ 665.8
- -------------------------------------------------------------------------------
</TABLE>
The components of the net investment in leveraged leases are as follows:
<TABLE>
<CAPTION>
December 31
1996 1997
- -------------------------------------------------------------------------------
<S> <C> <C>
Rentals receivable $ 4,883.8 $ 5,280.4
Residual values 698.5 865.2
Nonrecourse debt service (4,197.4) (4,629.1)
Unearned income (777.9) (849.0)
Deferred investment tax credit (12.4) (12.2)
- -------------------------------------------------------------------------------
594.6 655.3
Less: Deferred taxes arising from
leveraged leases 252.1 303.7
- -------------------------------------------------------------------------------
$ 342.5 $ 351.6
- -------------------------------------------------------------------------------
</TABLE>
The following is a schedule, by year, of total minimum lease payments
receivable on direct financing leases as of December 31, 1997:
<TABLE>
<CAPTION>
Year Ending December 31:
<S> <C>
1998 $ 290.3
1999 192.2
2000 114.2
2001 59.6
2002 25.7
Later years 61.7
- -------------------------------------------------------------------------------
Total minimum lease payments receivable $ 743.7
- -------------------------------------------------------------------------------
</TABLE>
- -------------------------------------------------------------------------------
NOTE 19. FAIR VALUE OF FINANCIAL
INSTRUMENTS
- -------------------------------------------------------------------------------
The estimated fair values of Dana's financial instruments are as follows:
<TABLE>
<CAPTION>
December 31
1996 1997
Carrying Fair Carrying Fair
Amount Value Amount Value
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
FINANCIAL ASSETS
Cash and marketable
securities $ 227.8 $ 227.8 $ 394.3 $ 394.3
Loans receivable (net) 208.2 207.2 168.8 168.9
FINANCIAL LIABILITIES
Short-term debt 640.3 640.3 504.2 504.2
Long-term debt 1,697.7 1,754.7 2,178.3 2,303.9
Security deposits --
leases 16.8 14.8 16.1 14.7
Deferred funding
commitments under
leveraged leases 5.9 5.9 4.9 5.0
Interest rate-based
option 7.2 7.2 9.9 9.9
UNRECOGNIZED FINANCIAL
INSTRUMENTS
Interest rate
derivatives:
Assets .7 1.0
Liabilities (12.9) (10.6)
</TABLE>
NOTE 20. COMMITMENTS AND
CONTINGENCIES
- -------------------------------------------------------------------------------
At December 31, 1997, the Company had purchase commitments for property,
plant and equipment aggregating approximately $151.7. Future minimum rental
commitments under operating leases aggregated $229.5, with rental payments
during the five succeeding years of $44.0, $37.6, $29.3, $25.0 and $22.0,
respectively. Net rental expense amounted to $70.4, $72.6 and $69.7 for 1995,
1996 and 1997, respectively.
In July of 1997, Dana signed an agreement to purchase the global axle and
brake business of Eaton Corporation for $287. The regulatory approval was
granted in December 1997 and the acquisition was completed in January 1998.
The Company and its consolidated subsidiaries are parties to various pending
judicial and administrative proceedings arising in the ordinary course of
business. These include, among others, proceedings based on product liability
claims and alleged violations of various environmental laws.
Management and its legal counsel periodically review the probable outcome of
pending proceedings, the costs and expenses reasonably expected to be incurred,
the availability
38
<PAGE> 19
NOTES TO FINANCIAL STATEMENTS
in millions DANA CORPORATION
- -------------------------------------------------------------------------------
and limits of the Company's insurance coverage, and the Company's established
accruals for uninsured liabilities. While the outcome of pending proceedings
cannot be predicted with certainty, management believes, based on these reviews
and the information currently available, that any liabilities that may result
from these proceedings are not reasonably likely to have a material effect on
the Company's liquidity, financial condition or results of operations.
NOTE 21. ACQUISITIONS
- -------------------------------------------------------------------------------
In 1995, Dana acquired the European axle group of GKN plc., a manufacturer of
axles for cars, light trucks and heavy-duty trucks, along with axles for
agricultural, industrial and construction equipment. Dana also acquired M.
Friesen GmbH in Germany, a supplier of remanufactured rotating electrics, a 70%
share of Industrias Serva S.A. in Spain, a manufacturer and distributor of
vehicular gaskets and Mohawk Plastics, Inc., a manufacturer of custom molded
plastics for the OE market in the United States.
During 1996, Dana acquired Thompson Ramco Argentina S.A. (Thompson), J.B.
Morgan and Co. Pty., Ltd. (Morgan), James N. Kirby Pty., Ltd., (Kirby),
Thermoplast+Apparatebau GmbH (Thermoplast) and Industrias Orlando Stevaux Ltda.
(Stevaux) and a majority interest in Centrust S.A. (Centrust). Centrust is an
Argentine company whose subsidiaries manufacture modular systems, brakes and
structural components. Thompson, also an Argentine company, manufactures and
distributes chassis parts and piston rings. Morgan and Kirby are both Australian
manufacturers of filters. Morgan produces oil, air, and fuel filters for
automobiles while Kirby produces radial and panel air filters for automobiles
and medium-duty trucks. Thermoplast is a German manufacturer of high-precision
injection-molded plastic components and systems for automotive applications.
Stevaux, a Brazilian company, manufactures gaskets and oil seals. Dana acquired
a 70% interest in Centrust while 100% of all other companies was purchased. Also
during 1996, Dana completed the acquisition of the light axle manufacturing
business of Rockwell do Brasil, an indirect subsidiary of Rockwell
International.
These acquisitions were accounted for as purchases and the results of their
operations have been included in the consolidated financial statements since the
dates of acquisition. The price and the results of operations of these companies
prior to acquisition were not material to the consolidated financial statements.
In 1997, Dana acquired the piston ring and cylinder liner operations of SPX
Corporation (SPD), the assets of Clark-Hurth Components (CH) from
Ingersoll-Rand, a 75% share of Wix Filtron Sp.zo.o and 50% of the shares of
Estampados Argentina S.A. (EASA), bringing Dana's effective ownership in this
affiliate to 85%. SPD manufactures and sells piston rings and cylinder liners
primarily for internal combustion engines. CH manufactures and sells
transmissions and axles for use in off-highway vehicles and equipment. Wix
Filtron is a Polish manufacturer of filtration products and EASA is an Argentine
manufacturer of heavy-duty structural components.
These acquisitions were accounted for as purchases and the results of their
operations have been included in the consolidated financial statements since the
dates of acquisition. Sales in 1997 were $595 higher than 1996 as a result of
acquisitions and total assets of companies acquired in 1997 amounted to $694.
In addition to the above acquisitions, in 1995 Dana purchased the remaining
shares of Hayes-Dana Inc., a Canadian subsidiary that manufactures new and
replacement parts for trucks, automobiles, off-highway vehicles and industrial
equipment and increased its equity ownership in R.O.C. Spicer from 49% to 51%.
R.O.C. Spicer manufactures axles and driveshafts in Taiwan.
In 1995, Dana acquired Plumley Companies, a U.S. manufacturer and distributor
of extruded and molded rubber and silicone sealing products, primarily for
automotive applications. Dana acquired Flexon, Inc., a U.S. manufacturer of fuel
filters in 1996. Both Plumley and Flexon were accounted for as poolings of
interests. Prior years' financial statements have not been restated since the
amounts are not material to the consolidated financial statements.
NOTE 22. DIVESTITURES
- -------------------------------------------------------------------------------
In March 1997, Dana completed the sale of its automotive warehouse
distribution business in the United Kingdom, the Netherlands and Portugal. In
August 1997, the sale of Dana's worldwide vehicular clutch operations was
completed. In September 1997, the vehicular transmission operations were sold to
a subsidiary of Dana's 49%-owned Mexican affiliate, Spicer S.A. de C.V. In
October 1997, the Company sold its flat rubber products operations and in
November 1997 completed the sale of its 49% interest in Korea Spicer
Corporation. In December 1997, as part of the rationalization plan announced in
the first quarter, Dana completed the sale of its automotive warehouse
distribution operation in France. Net gains recorded on these sales totaled
$134. These operations contributed sales of $525 in 1996; through the dates of
divestiture, 1997 sales for these operations totaled $236.
39
<PAGE> 20
NOTES TO FINANCIAL STATEMENTS
in millions except share amounts DANA CORPORATION
- -------------------------------------------------------------------------------
NOTE 23. RESTRUCTURING OF
OPERATIONS
- -------------------------------------------------------------------------------
During 1997, Dana initiated various restructuring plans. The cost of these
plans included a charge of $36 to initiate a rationalization plan at its Perfect
Circle Europe operations resulting in a workforce reduction of 368 people; a
charge of $39 relating to rationalizing its Reading, Pa., structural components
plant, with an expected workforce reduction of 1,140 people; a charge of $20 to
reduce deferred income tax benefits that were anticipated to be realized from
operating losses in France; a charge of $14 relating to the closure of its
Vimercate, Italy plant, with an anticipated workforce reduction of 120 people;
and $54 relating to downsizing or closing various facilities and exiting several
unprofitable lines of business, with an estimated workforce reduction of 440
people.
At December 31, 1997, $123 of restructuring charges remained in accrued
liabilities. The balance was comprised of $77 for the reduction of approximately
1,760 employees to be completed in 1998, $12 for closing excess facilities and
$34 for other non-cash write-downs of recorded assets. The estimated annual cash
expenditures will be approximately $59 in 1998, $16 in 1999 and $14 thereafter.
Dana's liquidity and cash flows will not be materially impacted by these
actions. It is anticipated that Dana's operations over the long term will
benefit from these realignment strategies. Following is a schedule of the
restructuring activity for 1997:
<TABLE>
<S> <C>
1997 Restructuring charges $ 162.4
1997 Activity:
Employee separation 2.0
Non-cash write-downs 37.3
- -------------------------------------------------------------------------------
Balance at December 31, 1997 $ 123.1
- -------------------------------------------------------------------------------
Employee reductions in 1997 306
</TABLE>
NOTE 24. NONCASH INVESTING AND
FINANCING ACTIVITIES
- -------------------------------------------------------------------------------
In leveraged leases, the issuance of nonrecourse debt financing, and
subsequent repayments thereof, is transacted between the lessees and lending
parties to the transactions. During 1995, 1996 and 1997, $339.1, $452.9 and
$388.5 of nonrecourse debt was issued to finance leveraged leases and $164.3,
$80.9 and $158.4 of nonrecourse debt obligations were repaid, respectively.
In 1996 and in 1997, in addition to cash contributions, 1,000,000 shares of
Dana common stock, with a market value of $31.1 in 1996 and $31.8 in 1997, were
contributed to the Dana Corporation Pension Plans Trust.
NOTE 25. SIGNIFICANT SUBSIDIARY
- -------------------------------------------------------------------------------
DCC is a wholly-owned subsidiary of Dana whose primary operating subsidiaries
are engaged in leasing and finance operations. The following is a summary of
DCC's results of operations and financial position:
<TABLE>
<CAPTION>
Year Ended December 31
1995 1996 1997
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Revenue from products
and services $ 180.4 $ 229.6 $ 254.4
- -------------------------------------------------------------------------------
Interest expense 62.8 74.4 80.9
General and administrative
expenses 103.1 115.6 137.8
- -------------------------------------------------------------------------------
165.9 190.0 218.7
- -------------------------------------------------------------------------------
Income before income taxes 14.5 39.6 35.7
Estimated income tax
provision (benefit) (8.0) 11.8 7.7
- -------------------------------------------------------------------------------
Income before equity
in earnings of affiliates 22.5 27.8 28.0
Equity in earnings of
affiliates 4.9 2.7 3.2
- -------------------------------------------------------------------------------
Net income $ 27.4 $ 30.5 $ 31.2
- -------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
December 31
1996 1997
- -------------------------------------------------------------------------------
Assets
<S> <C> <C>
Cash $ 3.5 $ 12.3
Loans receivable 208.1 168.8
Lease financing 1,327.9 1,498.4
Other assets 129.7 181.4
- -------------------------------------------------------------------------------
Total assets $ 1,669.2 $ 1,860.9
- -------------------------------------------------------------------------------
Liabilities and Shareholder's Equity
Notes payable $ 1,164.7 $ 1,286.9
Other liabilities 380.6 435.4
Shareholder's equity 123.9 138.6
- -------------------------------------------------------------------------------
Total liabilities and shareholder's
equity $ 1,669.2 $ 1,860.9
- -------------------------------------------------------------------------------
</TABLE>
40
<PAGE> 21
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS DANA CORPORATION
in millions
- --------------------------------------------------------------------------------
Dana took a number of major steps in 1997 to focus more sharply on its core
businesses in order to better serve its customers worldwide. These moves
included acquisitions, divestitures, the restructuring of certain operations,
and a reorganization of the Company's operations into six customer and
market-focused global Strategic Business Units -- automotive components, engine
components, heavy truck components, off-highway components, industrial
components, and leasing services.
In February, Dana acquired the assets of Clark-Hurth Components (CH), a
worldwide manufacturer of off-highway vehicle and equipment components, and the
worldwide piston ring and cylinder liner operations of SPX Corporation (SPD). In
March, Dana completed the sale of its automotive warehouse distribution business
in the United Kingdom, the Netherlands and Portugal to Partco Group plc. In
July, Dana announced, subject to regulatory approval, agreements to purchase
Eaton Corporation's worldwide axle and brake business and to sell its global
vehicular clutch business to Eaton. The sale of the vehicular clutch business
was completed at the end of August; regulatory approval of the axle and brake
purchase was received in December and the purchase was completed in January of
1998. In September, the Company completed the sale of its transmission business
to a unit of Dana's Mexican affiliate, Spicer S.A. de C.V. In October, the
Company sold its flat rubber business to a unit of Coltec Industries Inc. In
November, the Company sold its 49% share of Korea Spicer Corporation and
finally, in December, the automotive warehouse distribution business in France
was sold. Pre-tax gains on the sales of the operations mentioned above totaled
$227.
In addition to these acquisition and divestiture activities, Dana initiated
various restructuring plans in 1997. The Company implemented a rationalization
at its engine products operations in France, which resulted in a charge of $36.
The plan included the sale of a piston manufacturing facility, the
reorganization of a separate piston ring machining operation, the sale of its
Distribution France operation, and the downsizing and relocation of its division
office. A charge of $20 was recorded reducing deferred income tax benefits from
operating losses in France. A charge of $39 was incurred for restructuring the
Company's structural components facilities in Reading, Pa. A charge of $14 was
incurred relating to the closure of the Vimercate, Italy plant as part of the
rationalization of capacity in the off-highway components group resulting from
the acquisition of the assets of CH. Other restructuring and rationalization
plans announced throughout the year amounted to $54 for the downsizing or
closing of various facilities and exiting several unprofitable lines of
business.
These activities were a part of Dana's strategy to realign and strengthen
its worldwide business portfolio. During the year the Company also announced the
sales of its brakehose and cylinder businesses. These sales are expected to
close in early 1998.
LIQUIDITY AND CAPITAL RESOURCES
The Company continues to generate its largest source of cash from operating
activities. Net cash provided by operating activities in 1997 was $698, slightly
below the record level of $704 in 1996. Higher net income and depreciation and
amortization expenses in 1997 were offset by increased working capital
requirements. The gains of $141 from divestitures are included in cash flow from
investing activities.
<TABLE>
<CAPTION>
1995 1996 1997
<S> <C> <C> <C>
NET CASH FLOWS
FROM OPERATING
ACTIVITIES $388 $704 $698
</TABLE>
Net cash of $734 used in investing activities was $84 higher than in 1996.
The most significant use of cash in 1997 was for the acquisitions described
previously; divestitures provided cash of $394 in 1997.
Reflecting the Company's growth strategy in its core businesses and its
ongoing commitment to product improvement through research and technology,
capital expenditures were a record $426 in 1997. Capital spending in 1998 is
anticipated to be slightly less than in 1997. DCC's net purchases of leased
assets (purchases less principal payments) were $47 in 1997, $149 lower than in
1996.
<TABLE>
<CAPTION>
1995 1996 1997
<S> <C> <C> <C>
CAPITAL SPENDING $410 $357 $426
</TABLE>
Financing activities provided net cash of $203. Dana's net debt position
(short- and long-term debt less cash and cash equivalents) increased $178 over
December 31, 1996. Total consolidated debt increased $344 while cash and cash
equivalents increased $166. The debt increase was incurred early in 1997
primarily to fund the acquisitions of CH and SPD. Cash received from
divestitures was used partially to reduce debt and to accumulate funds for the
acquisition of Eaton Corporation's worldwide axle and brake business, which
closed in January 1998.
<TABLE>
<CAPTION>
1995 1996 1997
<S> <C> <C> <C>
NEW DEBT POSITION $2,040 $2,110 $2,288
</TABLE>
41
<PAGE> 22
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS DANA CORPORATION
in millions except per share amounts
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Year End Debt Analysis Short-Term Long-Term Total
- --------------------------------------------------------------------
<S> <C> <C> <C>
DCC
1996 $ 456 $ 708 $ 1,164
1997 325 961 1,286
- --------------------------------------------------------------------
Change $ (131) $ 253 $ 122
- --------------------------------------------------------------------
DANA (EXCLUDING DCC)
1996 $ 184 $ 990 $ 1,174
1997 179 1,217 1,396
- --------------------------------------------------------------------
Change $ (5) $ 227 $ 222
- --------------------------------------------------------------------
DANA CONSOLIDATED
1996 $ 640 $ 1,698 $ 2,338
1997 504 2,178 2,682
- --------------------------------------------------------------------
Change $ (136) $ 480 $ 344
- --------------------------------------------------------------------
</TABLE>
Cash dividends paid in 1997 were $109. Cash dividends per share increased 6%
over 1996. Dividends have been paid for 240 consecutive quarters with a current
annual dividend rate of $1.08 per share, an 8% increase over the 1996 year end
dividend rate.
In 1997, Dana filed a universal shelf registration statement with the U.S.
Securities and Exchange Commission to register common stock and/or debt
securities having a maximum aggregate offering price of $600. Dana plans to
offer the registered securities from time to time at prices and on terms to be
determined at the time of offering. The Company expects to use the net proceeds
from the sale of the securities for general corporate purposes, including the
repayment or refinancing of existing indebtedness. The Company does not intend
to issue equity in the immediate future.
Dana utilizes short-term committed and uncommitted bank lines for the
issuance of commercial paper and bank direct borrowings. Dana (excluding DCC)
had committed and uncommitted borrowing lines of credit totaling approximately
$1,400 at year end 1997, while DCC's lines were $921. Dana's strong cash flows
from operations, together with its worldwide credit facilities, is expected to
provide adequate liquidity to meet the Company's debt service obligations,
projected capital expenditures and working capital requirements.
Dana's management and legal counsel have reviewed the legal proceedings to
which the Company and its subsidiaries were parties as of December 31, 1997
(including, among others, those involving product liability claims and alleged
violations of environmental laws) and concluded that neither the liabilities
that may result from these legal proceedings nor the cash flows related to such
liabilities are reasonably likely to have a material adverse effect on the
Company's liquidity, financial condition or results of operations. The Company
estimates its contingent environmental and product liabilities based upon the
most probable method of remediation or outcome considering currently enacted
laws and regulations and existing technology. Measurement of liabilities is made
on an undiscounted basis and excludes the effects of inflation. In those cases
where there is a range of equally probable remediation methods or outcomes, the
Company accrues at the lower end of the range. At December 31, 1997, the Company
had accrued $50 for product liability costs (products) and $55, including $11
relating to acquisitions, for environmental liability costs (environmental),
compared to $65 for products and $47 for environmental at December 31, 1996. The
difference between the Company's minimum and maximum estimates for contingent
liabilities, while not considered material, was $15 for products and $1 for
environmental at December 31, 1997, compared to $17 for products and $1 for
environmental at December 31, 1996. At December 31, 1997, the Company had
recorded (as assets) probable recoveries from insurance or third parties in the
amounts of $29 for products and $10 for environmental, compared to $39 for
products and $10 for environmental at December 31, 1996.
RESTRUCTURING AND RATIONALIZATION EXPENSES
The Company's management evaluates its operations on an ongoing basis to
identify non-strategic and under-performing assets. Pursuant to these
evaluations, restructuring and rationalization plans are developed which may
result in abandonment, consolidation or relocation of operations. Upon approval
of these strategies (and, where appropriate, communication to affected
employees), the estimated costs of implementation (including employee benefits,
losses on disposal of assets and other expenses incidental to the restructuring
activities) are charged to expense. Restructuring and rationalization charges of
$162 were recorded in 1997. An accrued liability of $123 remained at December
31, 1997. The Company expects to settle $89 of this accrual in cash ($59 in
1998, $16 in 1999 and $14 thereafter). This amount generally represents employee
separation costs for the approximately 1,760 workers affected by these
activities. The balance of the accrual is non-cash and will be utilized to write
down the affected assets. Dana's liquidity and cash flows will not be materially
impacted by these actions. It is anticipated that Dana's operations over the
long term will benefit from these realignment strategies.
IMPACT OF THE YEAR 2000
The Company is currently developing a plan and timetable for assessing
whether its computer systems (including those which interface with customers,
suppliers and other third parties) will function properly when processing data
for the year 2000. At present, the Company has not determined the costs of this
assessment and of modifications that may be required to correct any "Year 2000"
problems, or the impact that such problems could have on its business, financial
condition, or results of operations.
RESULTS OF OPERATIONS 1997 VS. 1996
Dana achieved record worldwide sales in 1997 of $8,291, an 8% increase over
1996. Excluding the effect of acquisitions and divestitures, sales were $322 or
4% ahead of 1996. U.S. sales increased 9% over 1996 with acquisitions, net of
divestitures, adding $206 or 4%. Excluding the effect of acquisitions and
divestitures, U.S. sales increased $270 or 5%. Dana's international operations
increased sales 6% over 1996, with acquisitions, net of divestitures, adding $77
or 4%. Excluding these items, sales were $52 or 2% above last year's levels.
Exports from the U.S. increased 3% over 1996.
Fueled by Dana's first-quarter acquisition of CH, sales to global
manufacturers of off-highway vehicles were up 50%. Additionally, worldwide sales
to passenger car makers were up 9% over the comparable period last year.
Excluding the
42
<PAGE> 23
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS DANA CORPORATION
in millions
- -------------------------------------------------------------------------------
effect of acquisitions, worldwide original equipment (OE) sales to
global manufacturers of off-highway vehicles increased 2% and worldwide sales to
passenger car makers declined 7% from last year.
Dana's worldwide sales from the Vehicular segment, which includes sales of
components for trucks, sport utility vehicles, trailers, vans and automobiles,
increased 3% or $193 over 1996. The OE portion of this increase was $382 or 9%
over 1996 ($300 or 7% excluding acquisitions, net of divestitures), while the
aftermarket portion decreased $189 or 11% ($36 or 2% excluding acquisitions, net
of divestitures).
<TABLE>
<CAPTION>
SEGMENT SALES 1996 1997 % CHANGE
- ----------------------------------------------------------------
<S> <C> <C> <C>
Vehicular $6,130 $ 6,323 +3
Industrial 1,556 1,968 +26
------- --------
Total $7,686 $ 8,291 +8
------- --------
</TABLE>
U.S. sales of light truck components to OE manufacturers were up 8%
(acquisitions accounting for 1%) over a strong 1996 due to the ongoing demand
for light trucks and sport utility vehicles. U.S. medium and heavy truck OE
sales increased 7% (10% excluding the net effect of acquisitions and
divestitures) as truck production levels rebounded from 1996. Sales to the U.S.
OE passenger car market increased 17%, in large part due to the acquisition of
SPD in early 1997.
In the Industrial segment, which includes sales to the mobile off-highway
equipment market, Dana's worldwide sales rose 26% or $412 over 1996 (18% U.S.
and 42% international). Excluding the effect of acquisitions and divestitures,
sales increased $27 or 2% (4% increase in the U.S. and a 3% reduction
internationally). Worldwide sales to the mobile off-highway OE market increased
50%, while industrial OE sales improved 12% worldwide (2% and 9%, respectively,
excluding impact of acquisitions and divestitures). Mobile off-highway and
industrial distribution sales increased 9%, largely due to the acquisition of CH
in 1997.
Dana's worldwide distribution business decreased 5% over 1996. U.S.
distribution sales increased 1% while the international distribution sales
decreased 16%, primarily due to the sale of the European warehouse distribution
business. Worldwide automotive distribution sales were down 17% due to the
disposition. Truck parts distribution sales were up 3% and
off-highway/industrial distribution sales increased 9%.
The North American, European and South American regions all reported
increased sales over 1996. Asia Pacific, despite financial turmoil in the fourth
quarter, had comparable sales with 1996.
<TABLE>
<CAPTION>
SALES BY REGION 1996 1997 % CHANGE
- ----------------------------------------------------------------
<S> <C> <C> <C>
North America $ 5,875 $ 6,342 +8
Europe 1,086 1,125 +4
South America 536 635 +18
Asia Pacific 189 189 --
</TABLE>
North American sales were up $467 or 8% over 1996. Acquisitions, net of
divestitures, accounted for $206 or 4% of the increase. Continued demand for
light trucks and sport utility vehicles helped fuel the increase. European and
South American sales continued to grow in 1997 as the Company concentrated on
international growth of its core businesses, particularly through acquisitions.
Excluding the effect of acquisitions and divestitures, European sales were
comparable to 1996 while South America saw an 11% increase.
Revenue from lease financing and other income increased $275 over 1996.
Contributing to the increase were gains of $240 from the sale of the European
warehouse distribution operations ($76), the vehicular clutch business ($119),
the flat rubber products business ($14), the 49% share of Korea Spicer
Corporation ($18), and the sale of an investment in a leveraged lease by DCC
($13). Lease financing revenue at DCC increased 7% over 1996 as a result of
continued asset growth.
Dana's gross margin of 13.3% for 1997 was adversely affected by the $129 of
charges to cost of sales relating to restructuring and rationalization plans.
These charges included rationalizing the Company's Perfect Circle Europe
operations in France ($26), restructuring Dana's Parish facilities in Reading,
Pa. ($39), closing its off-highway axle plant in Vimercate, Italy ($14) and
downsizing and closing various facilities and exiting several unprofitable lines
of business ($50). Excluding these charges, Dana's gross margin would have been
14.9% versus a reported 15.1% in 1996. The net impact of acquisitions and
divestitures in 1997 also had a negative impact on gross margin.
Selling, general and administrative expenses (SG&A) increased $25 in 1997.
The net impact of acquisitions, divestitures and restructuring charges accounted
for $9 of the increase. SG&A expenses at DCC were $22 higher than in 1996 due to
increased asset levels and start-up costs associated with new product
development and market expansion. SG&A expenses as a percentage of sales
improved from 9.3% in 1996 to 8.9% in 1997.
Dana's operating income for 1997 was adversely affected by $132 of
restructuring charges, including those previously identified. Excluding these
charges, Dana's 1997 operating margin would have been 6.1% versus 5.8% in 1996.
Dana's operating margin as reported for 1997 was 4.5%. Operating margin was not
affected by the acquisitions and divestitures.
Dana's U.S. operations had a $38 decrease in reported operating income in
1997 over 1996, while international operations were down $26 million. Of the
restructuring and rationalization charges taken throughout 1997, $77 related to
U.S. operations and $55 related to international operations. Excluding these
charges, all regions would have shown an increase in operating income.
Operating income from the Vehicular segment decreased $91, while the
Industrial segment income increased $32. The Vehicular segment recorded
restructuring and rationalization charges of $110 and the Industrial segment
incurred charges of $22. DCC's operating income decreased $4 due primarily to
the increased costs of developing new products and expanding markets.
The Company's interest expense increased $37 over 1996 primarily due to
higher average debt levels associated with acquisitions.
Minority interest in net income of consolidated subsidiaries decreased $9,
primarily due to the lower earnings of Albarus S.A. (a Brazilian subsidiary) and
its majority-owned subsidiaries.
Equity in earnings of affiliates was higher in 1997 by $19, primarily due to
higher earnings of the Company's affiliates in Mexico. Spicer S.A. de C.V.
contributed $14 to the increase while the newly acquired affiliate of SPD
contributed $5.
43
<PAGE> 24
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS DANA CORPORATION
in millions
- -------------------------------------------------------------------------------
Dana's 1997 effective tax rate was 45% compared to 34% for 1996. The
effective rate was higher due to providing a valuation reserve for tax benefits
previously recorded in France, discontinuing the recording of tax benefits on
operating losses in France and providing a valuation reserve for tax benefits
associated with the expenses recorded for the rationalization plan at its
Perfect Circle Europe operations.
The Company reported record earnings in 1997 of $369, a $63 or 21% increase
over 1996. Profits for 1997 included $20 of gains relating to divestitures, net
of restructuring and rationalization charges.
Dana's component sales to producers of light truck and sport utility vehicles
in North America continued strong in 1997; this strength is expected to continue
into 1998. Medium and heavy truck production in North America is expected to be
at or slightly higher than 1997, but Dana's sales to this market are expected to
increase significantly due to the purchase of the axle and brake business of
Eaton Corporation. Sales to the off-highway market should see an increase due to
the first full year of sales from CH.
Dana expects its international business will grow at a modest pace in 1998.
Europe is expected to see increased sales due to the effect of acquisitions. The
financial uncertainty in the Asia Pacific region will continue into 1998 while
the South American economy may see a slight downturn. Recent acquisitions,
previously announced restructuring and rationalization programs, and focusing on
core businesses should provide growth for Dana in the last two regions.
The Company has included in this Annual Report statements about expectations
for 1998 and beyond, including anticipated sales and results of acquisitions,
divestitures, and restructuring and reorganization strategies. These statements
(indicated by such words as "anticipates," "estimates," "expects," and
"believes") represent management's current expectations based on present
information and current assumptions. However, as forward-looking statements,
they are inherently subject to risks and uncertainties. Actual results could
differ materially from those which are anticipated or projected due to a number
of factors, including changes in business relationships with the Company's major
customers, competitive pressures on sales and pricing, increases in production
or material costs that cannot be recouped in product pricing, and changes in
global economic and market conditions.
RESULTS OF OPERATIONS 1996 VS. 1995
Dana achieved record sales and profits in 1996 for the third consecutive
year. Sales were $7,686, up 1% over 1995, while profits increased to $306 or 6%
over last year. The major factors contributing to the Company's sales increase
were recent acquisitions and higher unit volumes of components for light truck
and sport utility vehicles in North America. These increases were partially
offset by a decline in North American medium and heavy truck production and
inclusion of an additional month's sales ($105) in 1995 for non-North American
operations due to a change in reporting periods. Acquisitions accounted for $322
of the 1996 sales increase, with $317 related to operations outside the U.S.
Sales from U.S. operations increased 1%, while international sales were up
2%, due primarily to acquisitions in South America and Europe. Exports from the
U.S. increased 22% over 1995. In 1996, international sales (including U.S.
exports) represented 37% of Dana's consolidated sales, compared to 35% in 1995.
Dana's worldwide sales from the Vehicular segment, which includes sales of
components and parts used on trucks, sport utility vehicles, trailers, vans and
automobiles, increased 1% over 1995.
<TABLE>
<CAPTION>
SEGMENT SALES 1995 1996 % Change
- -----------------------------------------------------------------
<S> <C> <C> <C>
Vehicular $6,070 $6,130 +1
Industrial 1,527 1,556 +2
- -----------------------------------------------------------------
Total $7,597 $7,686 +1
- -----------------------------------------------------------------
</TABLE>
The Company's U.S. sales from this segment increased 1%, while international
operations increased 2%. Sales to U.S. light truck manufacturers exceeded 1995
by 9% as light trucks and sport utility vehicles continued to be in demand. This
increase was partially offset by lower U.S. medium and heavy truck production,
compared to 1995's record build levels, resulting in lower Dana sales to those
markets of 8% and 17%, respectively. Heavy truck production in 1996, while below
1995's unusually high level, was still above average levels for the last 15
years. International sales from this segment increased, largely due to the
contribution of Dana's European and South American acquisitions.
Worldwide sales from Dana's Industrial segment, which includes sales to the
mobile off-highway (MOH) equipment market, increased 2% over 1995. Sales of
components to MOH manufacturers, primarily agricultural and construction
equipment, increased 6% worldwide, 3% in the U.S. and 10% internationally. The
international increase was principally the result of the acquisition of GKN's
European axle operations in late 1995. MOH and industrial distribution sales
increased 1% over 1995. Those increases were partially offset by a 6% sales
decline of Dana product sold to the Industrial OE market (Dana's smallest
market).
Dana's distribution sales increased 1% on a worldwide basis, with U.S. sales
increasing 3% and international decreasing 1%. Worldwide distribution sales
performances in 1996 versus 1995 by market were as follows: truck parts down 2%,
automotive up 3% and MOH/Industrial up 1%.
Dana's sales, on a regional basis, increased in Europe and South America and
were lower in North America and Asia Pacific.
<TABLE>
<CAPTION>
SALES BY REGION 1995 1996 % Change
- --------------------------------------------------------------
<S> <C> <C> <C>
North America $5,917 $5,875 -1
Europe 977 1,086 +11
South America 497 536 +8
Asia Pacific 207 189 -9
</TABLE>
The European and South American sales continued to grow in 1996 as the
Company concentrated on international growth of its core businesses,
particularly through acquisitions. North American sales were slightly lower,
reflecting decreases in medium and heavy truck production, which were partially
offset by light truck/sport utility vehicle increases. The lower sales in Asia
resulted from the weakness of Dana's markets in Taiwan and Australia.
Revenue from lease financing and other income increased $14 or 8% in 1996.
Leasing-related revenue and interest on loans were above 1995 by $25 as DCC's
average asset levels and gains on sales of leased assets were higher in 1996.
Other income in 1996 included gains of $5 on sales of certain assets
44
<PAGE> 25
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS DANA CORPORATION
in millions
- -------------------------------------------------------------------------------
and investments, while a $16 gain was recorded in 1995 due to the sale of equity
in three South American affiliates.
Adjustments for translation of foreign currency resulted in a gain of $1,
compared to a gain of $8 in 1995. The adjustments in both years related almost
exclusively to the translation from local currency to U.S. dollars of the
Company's Brazilian operations.
Dana's gross margin was 15.1% in both 1996 and 1995. Margins for U.S.
operations improved to 14.2% from 13.9% in 1995. Margins of the Company's
international operations declined to 17.4% from 18.1% in 1995, in large part due
to costs related to the integration of operations acquired in late 1995.
SG&A increased $30 or 4% in 1996. Operations acquired in the latter half of
1995 and in 1996 accounted for $23 of the increase. After adjusting for the
effect of those acquisitions, SG&A increased 1%.
Dana's operating income increased $12 million in 1996. U.S. operations had a
$16 increase, while international operations were down $4. The international
decrease was comprised of lower operating income at Dana's South American, Asia
Pacific and Canadian operations partially offset by an increase in Europe. The
European increase was primarily due to acquisitions.
Operating income from the Vehicular segment decreased 2%, while the
Industrial segment income increased 6% over 1995. The ratio of operating income
to sales for both segments was comparable in 1996 to 1995. Operating income of
the Lease Financing segment increased $17 over 1995. In 1996, DCC's operating
income increased as a result of higher average lease asset levels outstanding
during the year and improved lease and residual experience.
Interest expense in 1996 was $13 higher than in 1995 due to higher average
debt levels. This higher average debt position resulted from the funding of
acquisitions, capital additions and lease financing assets during 1996.
Equity in earnings of affiliates increased in 1996, primarily due to the
devaluation of the Mexican peso in 1995 which resulted in Dana recording a
non-operating charge of $18 for its proportionate share of translation losses
incurred by the Company's affiliate, Spicer S.A. de C.V.
Minority interest in net income of consolidated subsidiaries decreased $7 in
1996 due to the lower earnings of Albarus S.A. (a Brazilian subsidiary) and the
mid-1995 purchase of the minority interest in Hayes-Dana Inc. The earnings of
Albarus S.A. were lower in part due to the December 1995 sale of equity in one
of its subsidiaries.
Taxes on income decreased $15 in 1996 due to lower pre-tax profitability of
the Company and lower effective rates of Dana's international operations. The
Company's overall effective rate was 34% in 1996, compared to 35% in 1995.
45
<PAGE> 26
ADDITIONAL INFORMATION
in millions except per share amounts DANA CORPORATION
- -------------------------------------------------------------------------------
The following table shows the range of market prices of Dana Corporation
common stock on the New York Stock Exchange and the cash dividends declared and
paid for each quarter during 1996 and 1997. At December 31, 1997, the closing
price of Dana common stock was $47.50.
<TABLE>
<CAPTION>
CASH DIVIDENDS
STOCK PRICE DECLARED AND PAID
- -------------------------------------------------------------------------------------------------------------------------
1996 1997 1996 1997
Quarter Ended HI LO CLOSE HI LO CLOSE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
March 31 $34.13 $27.75 $33.38 $34.63 $30.63 $32.88 $.23 $.25
June 30 35.50 30.13 31.00 39.50 30.63 38.00 .25 .25
September 30 31.13 27.25 30.25 49.50 36.88 49.38 .25 .27
December 31 33.13 29.38 32.63 54.38 43.00 47.50 .25 .27
</TABLE>
UNAUDITED QUARTERLY FINANCIAL INFORMATION
- -------------------------------------------------------------------------------
The following information has been reviewed by our independent accountants
in accordance with generally accepted auditing standards (GAAS); however, they
have not performed an audit in accordance with GAAS on the quarterly information
to enable them to opine on each quarter.
<TABLE>
<CAPTION>
NET GROSS NET INCOME PER SHARE
QUARTER ENDED SALES PROFIT NET INCOME BASIC DILUTED
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
For the year ended
December 31, 1995
March 31 $1,924 $ 290 $ 59.2 $ .59 $ .58
June 30 1,969 315 89.1 .88 .88
September 30 1,727 268 60.9 .60 .60
December 31 1,978 275 78.9 .77 .77
- ------------------------------------------------------------------------------------------------------------
For the year ended
December 31, 1996
March 31 $1,973 $ 295 $ 78.7 $ .78 $ .77
June 30 2,020 321 91.5 .90 .89
September 30 1,816 280 65.2 .64 .64
December 31 1,877 265 70.6 .69 .69
- -------------------------------------------------------------------------------------------------------------
For the year ended
December 31, 1997
March 31 $ 2,115 $ 294 $ 92.6 $ .90 $ .89
June 30 2,141 316 93.8 .90 .89
September 30 1,961 245 98.3 .93 .92
December 31 2,074 255 84.4 .81 .79
</TABLE>
During the first quarter of 1995, Dana recorded a non-operating charge of
$18.0 (17 cents per share) for its proportionate share of translation losses
incurred by its Mexican affiliate, Spicer S.A. de C.V., due to the devaluation
of the Mexican peso.
In the fourth quarter of 1995, Dana recorded a gain of $12.0 (11 cents per
share) due to the sale of equity in three South American affiliates, a tax
benefit of $5.2 (5 cents) due to the sale of an insurance subsidiary in Bermuda
and a charge of $5.8 (6 cents) relating to a tentative settlement of a lawsuit
filed by the Department of Justice, which was settled in 1996.
During the first quarter of 1997, Dana recorded a gain of $45 (44 cents per
share) relating to the sale of its European warehouse operations. In addition,
the Company initiated a rationalization plan at its Perfect Circle Europe
operations resulting in a charge of $36 (35 cents per share).
50
<PAGE> 27
ADDITIONAL INFORMATION
in millions except per share amounts DANA CORPORATION
- -------------------------------------------------------------------------------
During the second quarter of 1997, the Company closed its Berwick, Pa.,
facility and sold certain of the operating assets and recorded a charge of $5 (5
cents per share).
In the third quarter, Dana recorded a gain of $70 (67 cents per share) on the
sale of its worldwide vehicular clutch operations. The Company also recorded
charges of $51 (50 cents per share), including $22 relating to the restructuring
of its Reading, Pa., facility, $20 million in deferred tax benefit valuation
allowances for benefits not expected to be utilized in France, $5 million to
restructure the light axle operations in England and $4 million relating to the
closure of two division offices and the consolidation of filtration operations.
During the fourth quarter of 1997, the Company recorded a gain of $18 (17
cents per share) on the sale of its 49% share of Korea Spicer Corporation and $8
(8 cents per share) relating to the sale of its flat rubber products operations.
Charges of $28 (27 cents per share) were recorded relating to the closure of its
Vimercate, Italy plant, closure of a hydraulic pump facility in Greenville, SC
and exiting several unprofitable lines of business.
<TABLE>
<CAPTION>
ELEVEN YEAR HISTORY
in millions except per share amounts DANA CORPORATION
- --------------------------------------------------------------------------------------------------------------------------------
FINANCIAL HIGHLIGHTS
For the Years 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Net Sales $4,180 $4,936 $4,865 $4,952 $4,398 $4,872 $5,460 $6,614 $7,598 $7,686 $8,291
Net Income (Loss) 142 162 132 76 13 (382) 80 228 288 306 369
Net Income (Loss) per
Common Share +
Basic 1.62 1.99 1.62 .92 .16 (4.35) .86 2.31 2.84 3.01 3.54
Diluted 1.56 1.91 1.56 .92 .16 (4.32) .85 2.30 2.83 2.99 3.49
Cash Dividends per
Common Share .70 .77 .80 .80 .80 .80 .80 .83 .90 .98 1.04
Total Assets 4,914 4,786 5,225 4,513 4,179 4,343 4,632 5,124 5,714 6,160 7,119
Long-Term Debt 1,322 1,324 1,522 1,486 1,541 1,467 1,207 1,187 1,315 1,698 2,178
<CAPTION>
DANA CORPORATION
(including Dana Credit Corporation on an equity basis)
- -------------------------------------------------------------------------------------------------------------------------------
For the Years 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
SUMMARY OF OPERATIONS
NET SALES $4,142 $4,896 $4,857 $4,948 $4,385 $4,863 $5,457 $6,607 $7,596 $7,686 $8,291
Cost of Sales 3,480 4,133 4,104 4,129 3,841 4,282 4,688 5,631 6,469 6,550 7,212
Income (Loss) before
Income Taxes 203 238 217 187 (24) 48 224 380 490 452 619
Tax Rate * 41.4% 45.8% 43.8% 51.9% (12.5)% 54.2% 39.7% 40.8% 36.9% 34.3% 46.2%
NET INCOME ** 142 162 132 76 13 56 129 228 288 306 369
Percentage Pre-tax Profit
on Sales 4.9% 4.9% 4.5% 3.8% (.5)% 1.0% 4.1% 5.8% 6.5% 5.9% 7.5%
Capital Expenditures 164 222 223 226 148 111 176 278 338 284 365
FINANCIAL POSITION
Current Assets $1,516 $1,570 $1,498 $1,489 $1,379 $1,552 $1,779 $1,989 $2,101 $2,366 $2,731
Current Liabilities 1,032 1,060 990 1,002 996 990 1,209 1,456 1,628 1,477 1,827
Current Ratio 1.5-1 1.5-1 1.5-1 1.5-1 1.4-1 1.6-1 1.5-1 1.4-1 1.3-1 1.6-1 1.5-1
Working Capital 484 509 508 487 423 562 569 533 533 889 905
Long-Term Debt 690 681 759 766 786 687 496 389 534 810 992
Total Shareholders' Equity 865 960 1,020 1,049 989 707 801 940 1,165 1,429 1,701
Return on Average
Shareholders' Equity 15.7% 17.8% 13.3% 7.3% 1.3% 6.6% 17.1% 26.2% 27.4% 23.6% 23.6%
COMMON STOCK DATA
Average Number of Shares
Outstanding (in thousands) 87,430 81,353 81,658 81,954 82,171 87,792 92,533 98,689 101,297 101,800 104,340
Book Value per Share $10.64 $11.81 $12.47 $12.79 $12.03 $7.70 $8.14 $9.51 $11.48 $13.87 $16.18
Earnings per Share **+
Basic 1.62 1.99 1.62 .92 .16 .64 1.39 2.31 2.84 3.01 3.54
Diluted 1.56 1.91 1.56 .92 .16 .63 1.38 2.30 2.83 2.99 3.49
Stock Price High 27.13 20.25 21.44 19.06 18.25 24.13 30.13 30.69 32.63 35.50 54.38
Low 13.75 16.25 16.50 9.94 12.31 13.38 22.00 19.63 21.38 27.25 30.63
Close 17.06 19.44 17.31 14.94 13.88 23.50 29.94 23.50 29.25 32.63 47.50
P/E Ratios High 17 10 13 21 114 38 22 13 11 12 15
Low 8 8 10 11 77 21 16 8 8 9 9
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
+ Years prior to 1997 have been adjusted to conform with SFAS No. 128.
* Net of the cumulative effect of the change in accounting for income taxes
in 1987.
** Excludes one-time SFAS No. 106 charge of $438 ($4.99 per share) in 1992 and
SFAS No. 112 charge of $49 (53 cents per share) in 1993.
51
<PAGE> 1
Exhibit 21
DANA CORPORATION
CONSOLIDATED SUBSIDIARIES
AS OF DECEMBER 31, 1997
Dana Corporation
4500 Dorr Street
Toledo, Ohio 43615
<TABLE>
<CAPTION>
UNITED STATES
- -------------
<S> <C>
DSA of America, Inc. Delaware
Albarus, Inc. Delaware
DTF Trucking, Inc. Delaware
Dana Distribution, Inc. Delaware
Dana International Finance Inc. Delaware
Dana International Limited Delaware
Dana Risk Management Services, Inc. Delaware
Dana World Trade Corporation Delaware
Flexon, Inc. Michigan
Flight Operations, Inc. Delaware
GemStone Gasket Company Delaware
Precision Specialties Inc. Delaware
Swanton Air Three, Inc. Delaware
Results Unlimited, Inc. Delaware
Warner Sensors Corporation Delaware
(formerly Marengo Corporation) Delaware
UnderCar International, Inc. Delaware
McQuay-Norris, Inc. Delaware
Reinz Wisconsin Gasket Co. Delaware
Perfect Circle Valve Seals, L.L.C. Delaware
Plumley Companies, Inc. Tennessee
Mohawk Plastics, Inc. Michigan
Wix Filtration Media Specialists, Inc. Delaware
Dana Venture Capital Corporation Ohio
Diamond Financial Holdings, Inc. Delaware
Admiral's Harbour, Inc. Ohio
Summey Building Systems, Inc. North Carolina
Dana Credit Corporation Delaware
Dana Commercial Credit Corporation Delaware
Camotop Two Corporation Delaware
Comprehensive Asset Services, Inc. Delaware
Dana Business Credit Corporation Delaware
Dana Commercial Finance Corporation Delaware
Dana Commercial Credit, Canada Inc. Delaware
Dana Fleet Leasing, Inc. Delaware
Isom & Associates, Inc. Delaware
Leased Equipment, Inc. Delaware
Lease Recovery, Inc. Delaware
Midwest Housing Investments J.V., Inc. Delaware
Potomac Leasing Company Delaware
Shannon Energy Services, Inc. Delaware
Shannon Property Management, Inc. Delaware
Shannon Supermarket Investors, Inc. Delaware
CCD Air Ten, Inc. Delaware
CCD Air Eleven, Inc. Delaware
CCD Air Twelve, Inc. Delaware
</TABLE>
<PAGE> 2
<TABLE>
<S> <C>
CCD Air Thirteen, Inc. Delaware
CCD Air Fourteen, Inc. Delaware
CCD Air Twenty, Inc. Delaware
CCD Air Twenty-One, Inc. Delaware
CCD Air Twenty-Two, Inc. Delaware
CCD Air Twenty-Three, Inc. Delaware
CCD Air Thirty, Inc. Delaware
CCD Air Thirty-Two, Inc. Delaware
CCD Air Thirty-Three, Inc. Delaware
CCD Air Thirty-Four, Inc. Delaware
CCD Air Thirty-Five, Inc. Delaware
CCD Air Thirty-Six, Inc. Delaware
CCD Air Thirty-Seven, Inc. Delaware
CCD Air Thirty-Eight, Inc. Delaware
CCD Air Thirty-Nine, Inc. Delaware
CCD Air Forty, Inc. Delaware
CCD Air Forty-One, Inc. Delaware
CCD Air Forty-Two, Inc. Delaware
CCD Air Forty-Four, Inc. Delaware
CCD Air Forty-Six, Inc. Delaware
CCD Airway One, Inc. Delaware
CCD Airway Three, Inc. Delaware
CCD Airway Five, Inc. Delaware
CCD Rail Two, Inc. Delaware
CCD Rail Three, Inc. Delaware
DCC Franchise Services, Inc. Delaware
DCC Project Finance One, Inc. Delaware
DCC Project Finance Two, Inc. Delaware
DCC Project Finance Three, Inc. Delaware
DCC Linden, Inc. Delaware
DCC Project Finance Four, Inc. Delaware
DCC Project Finance Five, Inc. Delaware
DCC Project Finance Six, Inc. Delaware
DCC Project Finance Ten, Inc. Delaware
DCC Servicing, Inc. Delaware
REBAC, Inc. Delaware
REBNEC Three, Inc. Delaware
REBNEC Five, Inc. Delaware
REBNEC Seven, Inc. Delaware
REBNEC Eight, Inc. Delaware
REBNEC Nine, Inc. Delaware
REBNEC Eleven, Inc. Delaware
RECCEG, Inc. Delaware
REFIRST, Inc. Delaware
REHAT, Inc. Delaware
RENOVO One, Inc. Delaware
Letovon Hammersmith Co. Delaware
RENOVO Three, Inc. Delaware
Letovon Heathrow Co. Delaware
RENOVO Five, Inc. Delaware
Letovon Waterloo Co. Delaware
RENOVO Seven, Inc. Delaware
RENOVO Nine, Inc. Delaware
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
RENOVO Eleven, Inc. Delaware
RENOVO Thirteen, Inc. Delaware
RETRAM, Inc. Delaware
Dana Lease Finance Corporation Delaware
Camotop One Corporation Delaware
Dana Leasing, Inc. Delaware
CCD Air Four, Inc. Delaware
CCD Air Five, Inc. Delaware
CCD Air Seven, Inc. Delaware
CCD Air Eight, Inc. Delaware
CCD Air Nine, Inc. Delaware
CCD Air Forty-Three, Inc. Delaware
CCD Air Forty-Seven, Inc. Delaware
CCD Airway Two, Inc. Delaware
CCD Airway Four, Inc. Delaware
CCD Rail One, Inc. Delaware
CCD Rail Four, Inc. Delaware
DCC Project Finance Seven, Inc. Delaware
DCC Project Finance Eight, Inc. Delaware
DCC Project Finance Eleven, Inc. Delaware
DCC Spacecom Two, Inc. Delaware
DCC Vendorcom, Inc. Delaware
JVQ Capital One, Inc. Delaware
REBNEC One, Inc. Delaware
REBNEC Two, Inc. Delaware
REBNEC Four, Inc. Delaware
REBNEC Six, Inc. Delaware
REBNEC Ten, Inc. Delaware
REBNEC Twelve, Inc. Delaware
RECONN, Inc. Delaware
RENOVO Two, Inc. Delaware
Letovon Hammersmith Co. Delaware
RENOVO Four, Inc. Delaware
Letovon Heathrow Co. Delaware
RENOVO Six, Inc. Delaware
Letovon Waterloo Co. Delaware
RENOVO Eight, Inc. Delaware
RENOVO Ten, Inc. Delaware
RENOVO Twelve, Inc. Delaware
RERSEY, Inc. Delaware
RESAMM, Inc. Delaware
REVA, Inc. Delaware
DCC Project Finance Nine, Inc. Delaware
Farnborough Properties Partners I Limited Delaware
Farnborough Properties Company Delaware
Farnborough Properties Partners II Limited Delaware
Farnborough Properties Partners III Limited Delaware
Farnborough Airport Properties Company Delaware
Farnborough Properties Partners IV Limited Delaware
Findlay Properties, Inc. Ohio
Ottawa Properties, Inc. Michigan
Shannon Properties, Inc. Delaware
First Shannon Realty of North Carolina, Inc. North Carolina
Lenox I-4 Lakeland Associates Florida
Region Center Associates Florida
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
Dana Austria GmbH Austria
Dana Canada, Inc. (fka Hayes-Dana Inc.) Canada
Hayes-Dana (Quebec) Inc. Canada
Dana Commercial Credit, Canada Inc. Canada
Dana Japan, Ltd. Japan
Spicer Philippines Manufacturing Co. Philippines
(Ceased Operation as of December of 1984 - Inactive)
Dantean Co., Ltd. (f.k.a. Spicer Thailand) Thailand
Dana Industrial Co., Ltd. Thailand
Dana Asia (Thailand) Ltd. Thailand
Spicer Asia (Thailand) Ltd. Thailand
Dana Asia (Singapore) Pte. Ltd. Singapore
(f.k.a. Dana World Trade Singapore (Pte.) Ltd.)
(Includes Warner Electric Division and Aftermarket
Distribution Division)
R.O.C. Spicer Ltd. Taiwan
Timing Investments Limited Taiwan
Talyin Enterprise Ltd. Taiwan
Taiyiu Warner Industrial Ltd. (liquidated 05/31/94) Taiwan
ROC Spicer Investment Co., Ltd. Taiwan
Shenyang Spicer Limited Taiwan
Spicer Asia Engineering Ltd. Taiwan
Dana Asia (Taiwan) Ltd. (Warner Electric Trading Co.) Taiwan
Dana Asia (Taiwan) APD Co., Ltd. Taiwan
Dana Australia (Holdings) Pty. Ltd. Australia
Dana Australia Pty. Ltd. Australia
Truckline Parts Centres Pty. Ltd. Australia
Dana Australia Trading Pty. Ltd. Australia
(Formerly Spicer Drivetrain Pty. Ltd.)
J.B. Morgan and Co. Pty., Ltd. Australia
Dana Asia Pacific Industrial
(fka Warner Electric Australia Pty. Ltd.) Australia
Dana Europe Holdings B.V. Netherlands
Spicer Netherland B.V. (Dormant) Netherlands
Leguana Participations B.V.(Holding Co) Netherlands
Warner Electric BV (f.k.a. Maumee Holdings B.V.) Netherlands
(Sales Office-Amsterdam)
Superior Electric Nederland B.V. (shell) Netherlands
Warner Electric SA (Dormant) Belgium
Clark-Hurth Belgium N.V. Belgium
Clark Equipment Belgium N.V. Belgium
</TABLE>
<PAGE> 5
<TABLE>
<S> <C>
Dana Commercial Credit (UK) Limited United Kingdom
Dana Commercial Credit Limited United Kingdom
DCC (March) Limited United Kingdom
DCC (June) Limited United Kingdom
DCC (September) Limited United Kingdom
Dana Lease Finance Corporation
Letovon Hammersmith Co. United Kingdom
Letovon Heathrow Co. United Kingdom
Letovon Waterloo Co. United kingdom
Farnborough Properties Partners I Limited/
Farnborough Properties Partners II Limited
Farnborough Properties Company United Kingdom
Farnborough Properties Partners III Limited/
Farnborough Properties Partners IV Limited
Farnborough Airport Properties Company United Kingdom
Farnborough Aerospace Centre Management Limited
Dana Holdings Limited United Kingdom
Dana Spicer Europe Ltd. United Kingdom
Warner Electric Limited United Kingdom
Dana Interlock Limited (Dormant 1/1/94) United Kingdom
(Trade Transferred to Wichita Co. Ltd)
Taylor Industrial Clutches Ltd. United Kingdom
Wichita Company Limited (Dormant-Trade United Kingdom
transferred to Dana Spicer Europe Ltd.)
Dana (1982) Ltd. (Dormant) United Kingdom
Superior Electric Engineering Services, Ltd. United Kingdom
Stieber Ltd. United Kingdom
Dana S.A. France
Perfect Circle Europe (fka Floquet Monopole S.A.) France
Societe Industrielle de Precision Marti, S.A. France
Societe de Reconditionnement Industriel France
de Moteurs S.A. (S.R.I.M.)
Spicer France S.A.R.L. France
Warner France, S.A. France
Collins & Tournadre "TOURCO" France
G.I.E. Warner & Tourco France
Superior Electric S.A.R.L. France
Stieber S.A.R.L. France
Dana Finance S.A. France
Clark-Hurth Components S.A.R.L.
Spicer India Limited India
Stieber Precision Pvt. Ltd. India
Dana Italia, SpA Italy
Metaltechno SpA Italy
Clark-Hurth Components SpA Italy
Dana Equipamientos SA (f.k.a. Spicer Espana S.A.) Spain
Sealed Power Europe S.L.
Industrias Seloc Reinz S.A. (closed) Spain
</TABLE>
<PAGE> 6
<TABLE>
<S> <C>
Industrias Serva S.A. Spain
Glaser Serva S.A. Spain
Dana AB Sweden
Warner-Tollo AB Sweden
Warner Electric (International) S.A. Switzerland
(International Headquarters, f.k.a. Warner
Electric S.A., locally known as "Swiss Inc.")
Warner Electric S.A. Switzerland
(Operating and local sales company, f.k.a.
Societe de Vente Warner Electric S.A., locally known as "Swiss Trade")
Dana GmbH Germany
Dana Holdings GmbH
(formerly Erwin Hengstler Hydraulic GmbH) Germany
Reinz Dichtungs GmbH Germany
Euro Reinz GmbH (dormant) Germany
Warner Electric GmbH Germany
Erwin Hengstler Hydraulic GmbH Germany
The Weatherhead GmbH Germany
M. Freisen GmbH Germany
Horst Riedel GmbH Germany
Spicer GmbH (f.k.a. Superior Electric GmbH) Germany
Clark-Hurth Components Vertriebs GmbH Germany
DKW Kunststoffwerke GmbH(Holding Co) Germany
Thermoplast+Apparatebau GmbH(Germany) Germany
Dana Capital GmbH Germany
Dana Equipamentos Ltda. Brazil
Albarus, S.A. Industrial E Comercio Brazil
Pellegrino Autopecas Industrial e Comerico Ltda. Brazil
CIDAP-Industrial e Distribuidora
de Aurtopecas Ltda. (Dormant) Brazil
Albarus Sistemas Hidraulicos Ltda. Brazil
Albarus S.A. Comercial e Exportadora Brazil
Cirane Industria e Comercio Ltda. Brazil
Previalbarus Societe de Providencia Brazil
SIMESC Brazil
Dana do Brasil Ltda. Brazil
Dana Industrias Ltda. Brazil
SM- Sistemas Modulares Brazil
Warner Electric do Brasil Ltda. Brazil
Dana Foreign Sales Corporation Virgin Islands
Dana Asia (Hong Kong) Limited Hong Kong
Kentning Industries Limited Hong Kong
Shui Hing Manufacturing Company Limited Hong Kong
</TABLE>
<PAGE> 7
<TABLE>
<S> <C>
Tecnologia de Mocion Controlada S.A. de C.V. Mexico
UBALI S.A. Uruguay
Talesol S.A. Uruguay
Dana Argentina S.A. Argentina
Dana San Juan S.A. (f.k.a. AROS Daneri, S.A.) Argentina
Dana San Luis S.A. (f.k.a. Trasa San Luis) Argentina
Transmissiones Homocineticas Argentina S.A. (THA) Argentina
Thompson Ramco-Argentina S.A. Argentina
Centrust S.A. Argentina
Armetal Industria Argentina de Metales Argentina
Farlock S.A. Argentina
Cerro de los Medanos S.A. Argentina
Estampados Argentinos Sociedad Anonima (EASA) Argentina
Dana Asia Pacific (Malaysia) Sdn. Bhd. Malaysia
Dana Asia (Korea) Co. Ltd. Korea
Industria De Ejes Y Transmissiones S.A. (Transejes) Colombia
Transejes C.D. Ltda. Colombia
Transcar Ltda. Colombia
Transmotor Ltda. Colombia
Wix Filtron Sp. zo.o. Poland
</TABLE>
<PAGE> 1
Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectuses
constituting parts of the Registration Statements on Form S-3 (Nos. 033-58121,
333-00539, 033-18043, 333-22935, 333-23733 and 333-42239) and in the
Registration Statements on Form S-8 (Nos. 033-64198 and 333-37435) of Dana
Corporation of our report dated January 21, 1998 appearing on page 22 of the
Annual Report to Shareholders which is incorporated in this Annual Report on
Form 10-K. We also consent to the incorporation by reference of our report on
the Financial Statement Schedule, which appears on page 15 of this Form 10-K.
PRICE WATERHOUSE LLP
Toledo, Ohio
February 27, 1998
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
-----------------
The undersigned directors and/or officers of Dana Corporation hereby
constitute and appoint Southwood J. Morcott, John S. Simpson, Charles W. Hinde,
Martin J. Strobel and Sue A. Griffin, and each of them, severally, their true
and lawful attorneys-in-fact with full power for and on their behalf to execute
the Corporation's Annual Report on Form 10-K for the fiscal year ended December
31, 1997, including any and all amendments thereto, in their names, places and
stead in their capacity as directors and/or officers of the Corporation, and to
file the same with the Securities and Exchange Commission on behalf of the
Corporation under the Securities and Exchange Act of 1934, as amended.
This Power of Attorney automatically ends as to each appointee upon the
termination of his or her service with the Corporation.
In witness whereof, the undersigned have executed this instrument the
8th day of December, 1997.
/s/ B. F. Bailar /s/ R. B. Priory
- ------------------------------- ----------------------------------
B. F. Bailar R. B. Priory
/s/ E. M. Carpenter /s/ J. D. Stevenson
- ------------------------------- ----------------------------------
E. M. Carpenter J. D. Stevenson
/s/ E. Clark /s/ T. B. Sumner, Jr.
- ------------------------------- ----------------------------------
E. Clark T. B. Sumner, Jr.
/s/ G. H. Hiner /s/ J. S. Simpson
- ------------------------------- ----------------------------------
G. Hiner J. S. Simpson
/s/ J. M. Magliochetti /s/ C. W. Hinde
- ------------------------------- ----------------------------------
J. M. Magliochetti C. W. Hinde
/s/ M. R. Marks /s/ M. J. Strobel
- ------------------------------- ----------------------------------
M. R. Marks M. J. Strobel
/s/ S. J. Morcott /s/ S. A. Griffin
- ------------------------------ ----------------------------------
S. J. Morcott - S. A. Griffin
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 93,300
<SECURITIES> 301,000
<RECEIVABLES> 1,162,900
<ALLOWANCES> 29,600
<INVENTORY> 909,800
<CURRENT-ASSETS> 0
<PP&E> 3,911,300
<DEPRECIATION> 1,866,500
<TOTAL-ASSETS> 7,118,700
<CURRENT-LIABILITIES> 0
<BONDS> 2,178,300
0
0
<COMMON> 105,100
<OTHER-SE> 1,596,100
<TOTAL-LIABILITY-AND-EQUITY> 7,118,700
<SALES> 8,290,800
<TOTAL-REVENUES> 8,770,300
<CGS> 7,180,400
<TOTAL-COSTS> 7,180,400
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 196,100
<INCOME-PRETAX> 654,100
<INCOME-TAX> 293,600
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 369,100
<EPS-PRIMARY> 3.54
<EPS-DILUTED> 3.49
</TABLE>
