Exhibit 10-H(1)
FIRST AMENDMENT
TO THE DANA CORPORATION
SUPPLEMENTAL BENEFITS PLAN
Pursuant to resolutions of the Board of Directors adopted on October
21, 2003, the Dana Corporation Supplemental Benefits Plan (the "Plan") is hereby
amended, effective as of December 8, 2003, as set forth below.
1. Section 1.3 of the Plan is amended by deleting the definition of
"Change in Control" and replacing it in its entirety as follows:
1.3 "Change in Control" shall mean the first to occur of any of the
following events:
(a) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the
securities Beneficially Owned by such Person any securities
acquired directly from the Company or its Affiliates)
representing 20% or more of the combined voting power of the
Company then outstanding securities, excluding any Person who
becomes such a Beneficial Owner in connection with any
acquisition by any corporation pursuant to a transaction that
complies with clauses (1), (2) and (3) of paragraph (c) below;
or
(b) the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals
who, on December 8, 2003, constitute the Board (the "Incumbent
Board") and any new director whose appointment or election by
the Board or nomination for election by the Company'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 December 8, 2003 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 Company, shall
not be treated as a member of the Incumbent Board; or
(c) there is consummated a merger, reorganization, statutory share
exchange or consolidation or similar corporate transaction
involving the Company or any direct or indirect subsidiary of
the Company, a sale or other disposition of all or
substantially all of the assets of the Company, or the
acquisition of assets or stock of another entity by the
Company or any of its subsidiaries (each a "Business
Combination"), in each case unless, immediately following such
Business Combination, (1) the voting securities of the Company
outstanding immediately prior to such Business Combination
(the "Prior Voting Securities") continue to represent (either
by remaining outstanding or by being converted into voting
securities of the surviving entity of the Business Combination
or any parent thereof) at least 50% of the combined voting
power of the
securities of the Corporation or such surviving entity or
parent thereof outstanding immediately after such Business
Combination, (2) no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company or the
surviving entity of the Business Combination or any parent
thereof (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 securities of the Corporation or
surviving entity of the Business Combination or the parent
thereof, except to the extent that such ownership existed
immediately prior to the Business Combination and (3) at least
a majority of the members of the board of directors of the
Corporation or the surviving entity of the Business
Combination or any parent thereof were members of the
Incumbent Board at the time of the execution of the initial
agreement or of the action of the Board providing for such
Business Combination; or
(d) the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company.
Notwithstanding the foregoing, any disposition of all or substantially
all of the assets of the Company pursuant to a spinoff, splitup or similar
transaction (a "Spinoff") shall not be treated as a Change in Control if,
immediately following the Spinoff, holders of the Prior Voting Securities
immediately prior to the Spinoff continue to beneficially own, directly or
indirectly, more than 50% of the combined voting power of the then outstanding
securities of both entities resulting from such transaction, in substantially
the same proportions as their ownership, immediately prior to such transaction,
of the Prior Voting Securities; provided, that if another Business Combination
involving the Corporation occurs in connection with or following a Spinoff, such
Business Combination shall be analyzed separately for purposes of determining
whether a Change in Control has occurred.
For purposes of this definition of "Change in Control," the following
terms shall have the following meanings:
"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 Company. 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.
"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.
"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 Company.
2. Section 4.7(a) of the Plan is deleted in its entirety and replaced
by the following:
(a) LUMP SUM PAYMENT. Upon the occurrence of a Change in
Control, (i) each Employee, (ii) each former Employee and (iii) each
Employee's spouse or beneficiary following his death who is receiving
benefits under the Plan (each, a "Recipient") shall receive, on account
of future payments of any and all benefits due under the Plan, a Lump
Sum Payment, so that each such Employee, former Employee or Recipient
will receive substantially the same amount of after-tax income as
before the Change of Control, determined as set forth in paragraph (c)
of this Section 4.7.
3. The following sentence is inserted at the end of Section 4.7(c) of
the Plan:
The date of the Change in Control shall be treated as the date of
retirement for each Employee who would otherwise be eligible for retirement as
of such date for purposes of calculating the Lump Sum Payment.
4. A new sentence is added at the end of the Plan:
The first Amendment to the Plan is effective as of December 8, 2003.
In Witness Whereof, Dana Corporation has adopted this amendment.
DANA CORPORATION
By: /s/ R. B. Priory
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Chairman of the Compensation
Committee of the Board of Directors
ATTEST
/s/ R. W. Spriggle
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