EXHIBIT 10(y)
MODINE MANUFACTURING COMPANY
----------------------------
INCENTIVE STOCK OPTION AGREEMENT
--------------------------------
THIS INCENTIVE STOCK OPTION granted this day of
--------
January , 2000, by Modine Manufacturing Company, a Wisconsin
- ---------
corporation (the "Company"), to
-----------------------------
(the "Employee") under and pursuant to the Company's 1994
Incentive Compensation Plan (the "Plan").
WITNESSETH:
WHEREAS, the Committee of the Board of Directors, which is
authorized to administer the Plan (the "Committee"), is of the
opinion that the interests of the Company and its subsidiaries
will be advanced by encouraging and enabling certain key
employees of the Company and its subsidiaries to acquire or
increase their proprietary interest in the Company, thus
providing them with a more direct stake in its welfare and
assuring a closer identification of their interests with those of
the Company; and
WHEREAS, the Committee believes that the acquisition of such
an interest in the Company will stimulate the efforts of such
employees and strengthen their desire to remain with the Company
or one of its subsidiaries;
NOW, THEREFORE, in consideration of the aforementioned, and
the covenants and agreements herein set forth, the Company grants
this option (which is intended to qualify as an incentive stock
option within the meaning of Section 422A of the Internal Revenue
Code) to the Employee on the terms hereinafter expressed:
1. Option Grant. The Company hereby grants to the Employee an
------------
option to purchase a total of shares of Common
-----------
Stock of the Company at the option price of $ per
----------
share, being at least equal to 100% of the fair market value
of such shares on the date hereof.
2. Time of Exercise; Exercise Limitation. This option may be
-------------------------------------
exercised (in the manner provided in paragraph 3 hereof) in
whole or in part, from time to time after the date hereof,
subject to the following limitations:
(a) Except for exercises under paragraph 5 below, this
option may not be exercised for one year from the date
when the Employee's present employment is first
commenced.
(b) This option is intended to qualify as an incentive
stock option so that the Employee may obtain
preferential tax treatment and, consequently, certain
limitations on disposition must be observed. In order
to obtain preferential tax treatment, shares of capital
stock transferred to the Employee pursuant to this
Agreement may not be disposed of within twenty-four
(24) months after the grant of such shares or twelve
(12) months after exercise of such shares.
(c) If Employee is an officer of the Company subject to the
reporting requirements of Section 16 of the Securities
Exchange Act of 1934, this option may not be exercised
by the Employee for six (6) months from the date of grant.
(d) This option may only be exercised, at any one time,
exclusively in multiples of twenty-five (25) shares
with a one hundred (100) share exercise minimum, except
for the purchase of all shares then remaining subject
to this option.
(e) This option may not be exercised beyond the shorter of:
(i) ten (10) years from the date hereof;
(ii) after an Employee has been terminated for cause
(such as dishonesty or negligence in performance
of Employee's duties). In such event the
employee shall forfeit all unexercised options;
(iii) three (3) years (except as provided in paragraph
5) following termination of employment (if
without cause) or retirement; provided, however,
that this option must be exercised within ninety
(90) days following termination of employment
(if without cause) or retirement from the Company
in order to obtain preferential tax treatment.
In the event this option is not exercised in accordance
with subparagraphs (i), (ii) or (iii) above, it shall
be forfeited as an unexercised option.
(f) To the extent required by the Internal Revenue Code,
the aggregate fair market value (determined at the time
the option is granted) of the Common Stock for which
incentive stock options are exercisable for the first
time by an option holder during any calendar year
(under all the plans of the Company) shall not exceed
$100,000. This limitation applies to Incentive Stock
Options granted after 1986 only. Incentive Stock
Options exercisable for the first time in a calendar
year that exceed the $100,000 annual limit are denied
preferential tax treatment.
3. Exercise of Option. This option may be exercised only by
------------------
appropriate notice in writing delivered to the Secretary of
the Company at 1500 DeKoven Avenue, Racine, Wis. 53403, and
accompanied by:
(a) Check payable to the order of the Company, or Modine
stock (the value of which shall be the fair market
value of the stock on the day preceding the exercise
date), or a combination of Modine stock and cash, or
attestation, i.e., by affidavit identifying for
delivery specific already-owned shares of Modine Stock
having a value equal to the aggregate exercise price,
but not actually delivering such shares to Modine, for
the full purchase price of the shares purchased.
4. Nontransferability of Option. This option is not
----------------------------
transferable by the Employee otherwise than (a) by will or
the laws of descent and distribution, or (b) pursuant to a
qualified domestic relations order, and is exercisable,
during the Employee's lifetime, only by the Employee or his
legal representative.
5. Death or Disability of Employee. If the Employee dies
-------------------------------
during the option period, this option may be exercised in
whole or in part and from time to time, in the manner
described in paragraph 3 hereof, by the Employee's estate or
the person to whom the option passes by will or the laws of
descent and distribution, but only within a period of (a)
one year next succeeding the Employee's death, or (b) ten
years from the date hereof, whichever period is shorter. If
the Employee becomes disabled during the option period, his
option may be exercised in whole or in part and from time to
time, in the manner described in paragraph 3 hereof, within
one year of retirement or other termination of employment
due to a determination of permanent and total disability;
except that any options exercised after one year of
retirement due to disability, but prior to expiration of
three years following such retirement, will be denied
preferential tax treatment.
6. Delivery of Certificates. The Company shall issue and
------------------------
deliver certificates for stock purchased pursuant to an
exercise of this option subject to the following
limitations:
(a) The Employee shall have no interest in any such shares
until payment for said shares is made in accordance
with paragraph 3 hereinabove.
(b) The Company shall not be required to issue or deliver
any certificate for its Common Stock purchased upon the
exercise of this option prior to the admission of such
shares to listing on any stock exchange or any
over-the-counter quotation system on which shares may
at that time be listed. In the event of the exercise
of this option while the option class of stock is not
so listed or admitted, the Company shall make prompt
application for such listing or admission. If any time
during the option period the Company shall be advised
by its counsel that the shares deliverable upon an
exercise of the option are required to be registered
under the Federal Securities Act of 1933 or any state
securities law or that delivery of such shares must be
accompanied or preceded by a prospectus, the Company
will use its best efforts to effect such registration
or provide such prospectus, but delivery of shares by
the Company may be deferred until such registration is
effected or such prospectus is available.
7. Adjustment Provisions. In the event that there is any
---------------------
change in the number of issued shares of Common Stock of the
Company without new consideration to the Company therefor,
by reason of stock dividends, stock split-ups or like
recapitalizations, the number of shares which may thereafter
be purchased under this option shall be adjusted in the same
proportion as said change in issued shares. In such event,
the per share purchase price specified in paragraph 1 above
shall be adjusted so that the total consideration payable to
the Company for the adjusted number of shares remaining
subject to this option shall not be changed by reason of the
adjustment in number of shares.
If during the term of this option the Common Stock of the
Company shall be combined or be changed into the same or
another kind of stock of the Company or into securities of
another corporation, whether through recapitalization,
reorganization, sale, merger, consolidation, or by other
means, the Company shall cause adequate provision to be made
whereby the Employee thereafter will be entitled to receive,
upon the due exercise of any then unexercised portion of
this option, the securities which the Employee would have
been entitled to receive for Common Stock acquired through
exercise of such portion of the option (regardless of
whether or to what extent the option would then have been
exercisable) immediately prior to the effective date of such
recapitalization, reorganization, sale, merger,
consolidation, or similar transaction. If appropriate, due
adjustment shall be made in the per share or per unit price
of the securities purchased on exercise of this option
following said recapitalization, reorganization, sale,
merger, consolidation, or similar transaction.
8. Effect on Other Benefits. Neither this option, shares of
------------------------
stock issued upon its exercise, any excess of market value
over option price, nor any other rights, benefits, values or
interests resulting from the granting of this option shall
be considered as compensation for purposes of any pension,
profit sharing, retirement plan, insurance plan, investment
or stock purchase plan, or any other employee benefit plan
of the Company or any of its subsidiaries.
9. Fair Market Value. For purposes hereof, "fair market value"
-----------------
shall equal the closing market price on the largest stock
exchange or over-the-counter quotation system on which
Modine Common Stock is traded on the date a determination is
required to be made under the Plan or this Agreement, or if
no stock is traded on that day then it shall equal the
closing market price on the last preceding day on which such
stock was traded on said exchange or system.
10. Employee Not Deemed to be a Shareholder. The Employee shall
---------------------------------------
not be deemed to be a shareholder of the Company for any
purposes with respect to any option granted hereunder except
to the extent that such option shall have been exercised and
a stock certificate issued therefor.
11. No Right to Continued Employment. Nothing in this Agreement
--------------------------------
or the Plan shall confer upon Employee any right to continue
in the employment of the Company or in any way affect the
right of the Company to terminate Employee's employment at
any time.
12. Cancellation and Rescission of Stock Option. The Committee
-------------------------------------------
may (in its sole discretion) cancel this option at any time
if Employee is not in compliance with all other applicable
provisions of this option, the Plan, and with the following
conditions:
(a) Conflict of Interest. Employee shall not render
services for any organization or engage directly or
indirectly in any business which, in the judgment of
the Committee, is or becomes competitive with the
Company, or which organization or business, or the
rendering of services to such organization or business,
is or becomes otherwise prejudicial to or in conflict
with the interests of the Company (including but not
limited to serving as an employee, consultant, advisor
or in any other capacity to such organization or
business, or participating in a hostile takeover
attempt of the Company by such organization or
business);
(b) Certain Prohibited Activities. Employee shall comply
fully with applicable laws and government regulations
(both civil and criminal) and maintain high ethical
standards. Employee shall also comply with the
Company's corporate policies, including, but not
limited to, Policy No. G-2, Guideline for Business
Conduct, and Policy No. G-3, Antitrust Compliance, and
the Company's Agreement for Protection of Trade Secrets
and Sales Data and for Assignment of Inventions; or
(c) Leaving the Company within One Year of Exercise.
Employee shall not exercise any portion of this option
and then leave the employment of the Company within one
year after exercise for any reason except death,
disability, normal retirement, or early retirement with
the consent of the Board of Directors.
The judgment of the Committee shall be based on Employee's
position and responsibilities while employed by the Company,
Employee's post-employment responsibilities and position
with the other organization or business, the extent of past,
current and potential competition or conflict between the
Company and the other organization or business, the effect
on the Company's customers, suppliers and competitors of
Employee's assuming the post-employment position, and such
other considerations as are deemed relevant given the
applicable facts and circumstances. If Employee retires, he
shall be free, however, to purchase as an investment or
otherwise, stock or other securities of such organization or
business so long as they are listed upon a recognized
securities exchange or traded over-the-counter, and such
investment does not represent a substantial investment to
Employee or a greater than 10 percent equity interest in the
organization or business.
Failure to comply with the provisions of paragraphs (a) or
(b) of this Paragraph 13 prior to, or during the twenty-four
(24) months after, any exercise pursuant to this option, or
failure to comply with the provisions of paragraph (c) of
this Paragraph 13 during the twelve (12) months after
exercise pursuant to this option, shall cause such exercise
to be subject to rescission. The Company shall notify
Employee in writing of any such rescission within
twenty-four (24) months after such exercise under paragraphs
(a) or (b) or within twelve (12) months after such exercise
under paragraph (c). In the event of notice of rescission,
Employee shall pay to the Company the amount of any gain
realized or payment received pertaining to the rescinded
exercise of this option.
By accepting this Agreement, Employee consents to a
deduction from any amounts the Company owes Employee from
time to time (including amounts owed to Employee as salary
or other compensation, fringe benefits, or vacation pay, as
well as any other amounts owed to Employee by the Company),
to the extent of the amounts Employee owes the Company under
paragraphs (a), (b), or (c) above. Whether or not the
Company elects to make any set-off in whole or in part, if
the Company does not recover by means of set-off the full
amount Employee owes, calculated as set forth above,
Employee agrees to pay immediately the unpaid balance to the
Company. Such payment shall be made either in cash or by
returning to the Company the number of shares of Common
Stock that Employee received in connection with the
rescinded exercise.
13. Grant Subject to 1994 Incentive Compensation Plan. This
-------------------------------------------------
award is subject to all the terms and conditions set forth
in the 1994 Incentive Compensation Plan as amended which is
hereby incorporated by reference and to all determinations
of the Committee of the Board of Directors which is
authorized to administer the Plan. As a condition of
granting the option herein granted, the Employee agrees, for
himself and his personal representatives, that any requirement
or interpretation, dispute, or disagreement which may arise
under or as a result of or pursuant to this Agreement or the
Plan shall be determined by the Committee in its sole
discretion, and that any interpretation or determination by
the Committee shall be final, binding and conclusive.
14. Governing Law. This Agreement shall be construed,
-------------
administered and governed in all respects in accordance with
the laws of the State of Wisconsin.
IN WITNESS WHEREOF, the Company has caused this option to be
executed on the date first above written.
ATTEST: MODINE MANUFACTURING COMPANY
By:
- -------------------------- ------------------------------------
W. E. Pavlick, Secretary D. R. Johnson
President & Chief Executive Officer
Accepted and Agreed To:
---------------------------------------
Employee
MODINE MANUFACTURING COMPANY
----------------------------
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
THIS NON-QUALIFIED STOCK OPTION granted this day of
------
January, 2000 by Modine Manufacturing Company, a Wisconsin
- -------
corporation (the "Company"), to , (the
-------------------------
"Employee") under and pursuant to the Company's 1994 Incentive
Compensation Plan (the "Plan").
WITNESSETH:
WHEREAS, The Committee of the Board of Directors, which is
authorized to administer the Plan (the "Committee"), is of the
opinion that the interests of the Company and its subsidiaries
will be advanced by encouraging and enabling certain key
employees of the Company and its subsidiaries to acquire or
increase their proprietary interest in the Company, thus
providing them with a more direct stake in its welfare and
assuring a closer identification of their interests with those of
the Company; and
WHEREAS, the Committee believes that the acquisition of such
an interest in the Company will stimulate the efforts of such
employees and strengthen their desire to remain with the Company
or one of its subsidiaries;
NOW, THEREFORE, in consideration of the aforementioned, and
the covenants and agreements herein set forth, the Company grants
its option to the Employee on the terms hereinafter expressed:
1. Option Grant. The Company hereby grants to the Employee an
------------
option to purchase a total of shares of Common
-----------
Stock of the Company at the option price of $ per
---------
share, being at least equal to 100% of the fair market value
of such shares on the date hereof.
2. Time of Exercise. This option may be exercised (in the
----------------
manner provided in paragraph 3 hereof) in whole or in part,
from time to time after the date hereof, subject to the
following limitations:
(a) Except for exercise under paragraph 5 below, this
option may not be exercised for one year from the date
when the Employee's present employment with Modine
first commenced.
(b) If Employee is an officer of the Company subject to
the reporting requirements of Section 16 of the
Securities Exchange Act of 1934, this option may not be
exercised by the Employee for six (6) months from the
date of grant.
(c) Options may be exercised before the option period
terminates without regard to the order of grant.
(d) This option may only be exercised, at any one time,
exclusively in multiples of twenty-five (25) shares
with a one hundred (100) share exercise minimum, except
for the purchase of all shares then remaining subject
to this option.
(e) This option may not be exercised beyond the shorter of:
(i) ten (10) years from the date hereof;
(ii) after an Employee has been terminated for cause
(such as dishonesty or negligence in performance
of Employee's duties). In such event the
employee shall forfeit all unexercised options;
(iii) three (3) years (except as provided in paragraph
5) following termination of employment (if
without cause) or retirement.
In the event this option is not exercised in accordance
with subparagraphs (i), (ii) or (iii) above, it shall
be forfeited as an unexercised option.
3. Exercise of Option. This option may be exercised only by
------------------
appropriate notice in writing delivered to the Secretary of
the Company at 1500 DeKoven Avenue, Racine, Wis. 53403 and
accompanied by:
(a) Check payable to the order of the Company, or
Modine Stock (the value of which shall be the fair
market value of the stock on the day preceding the
exercise date), or a combination of Modine stock and
cash, or attestation, i.e., by affidavit identifying
for delivery specific already-owned shares of Modine
Stock having a value equal to the aggregate exercise
price, but not actually delivering such shares to
Modine, for the full purchase price of the shares
purchased.
4. Nontransferability of Option. This option is not
----------------------------
transferable by the Employee otherwise than (a) by will or
the laws of descent and distribution, or (b) pursuant to a
qualified domestic relations order, and is exercisable,
during the Employee's lifetime, only by the Employee or his
legal representative.
5. Death of Employee. If the Employee dies during the option
-----------------
period, this option may be exercised in whole or in part and
from time to time, in the manner described in paragraph 3
hereof, by the Employee's estate or the person to whom the
option passes by will or the laws of descent and
distribution, but only within a period of (a) one year next
succeeding the Employee's death, or (b) ten years from the
date hereof, whichever period is shorter.
6. Delivery of Certificates. The Company shall issue and
------------------------
deliver certificates for stock purchased pursuant to an
exercise of this option subject to the following
limitations:
(a) The Employee shall have no interest in any such
Shares until certificates for said Shares are issued.
(b) The Company shall not be required to issue or
deliver any certificates for its Common Stock purchased
upon the exercise of this option prior to the admission
of such shares to listing on any stock exchange or any
over-the-counter quotation system on which shares may
at that time be listed. In the event of the exercise
of this option while the option class of stock is not
so listed or admitted, the Company shall make prompt
application for such listing or admission. If any time
during the option period the Company shall be advised
by its counsel that the shares deliverable upon an
exercise of the option are required to be registered
under the Federal Securities Act of 1933 or any state
securities law or that delivery of such shares must be
accompanied or preceded by a prospectus, the Company
will use its best efforts to effect such registration
or provide such prospectus, but delivery of shares by
the Company may be deferred until such registration is
effected or such prospectus is available.
7. Adjustment Provisions. In the event that there is any
---------------------
change in the number of issued shares of Common Stock of the
Company without new consideration to the Company therefor,
by reason of stock dividends, stock split-ups or like
recapitalizations, the number of shares which may thereafter
be purchased under this option shall be adjusted in the same
proportion as said change in issued shares. In such event,
the per share purchase price specified in paragraph 1 above
shall be adjusted so that the total consideration payable to
the Company for the adjusted number of shares remaining
subject to this option shall not be changed by reason of the
adjustment in number of shares.
If during the term of this option the Common Stock of the
Company shall be combined or be changed into the same or
another kind of stock of the Company or into securities of
another corporation, whether through recapitalization,
reorganization, sale, merger, consolidation, or by other
means, the Company shall cause adequate provision to be made
whereby the Employee thereafter will be entitled to receive,
upon the due exercise of any then unexercised portion of
this option, the securities which the Employee would have
been entitled to receive for Common Stock acquired through
exercise of such portion of the option (regardless of
whether or to what extent the option would then have been
exercisable) immediately prior to the effective date of such
recapitalization, reorganization, sale, merger,
consolidation, or similar transaction. If appropriate, due
adjustment shall be made in the per share or per unit price
to the securities purchased on exercise of this option
following said recapitalization, sale, merger,
consolidation, or similar transaction.
8. Effect on Other Benefits. Neither this option, shares of
------------------------
stock issued upon its exercise, any excess of market value
over option price, nor any other rights, benefits, values or
interests resulting from the granting of this option shall
be considered as compensation for purposes of any pension,
profit sharing, retirement plan, insurance plan, investment
or stock purchase plan, or any other employee benefit plan
of the Company or any of its subsidiaries.
9. Fair Market Value. For purposes hereof, "fair market value"
-----------------
shall equal the closing market price on the largest stock
exchange or over-the-counter quotation system on which
Modine Common Stock is traded on the date a determination is
required to be made under the Plan or this Agreement, or if
no stock is traded on that day then it shall equal the
closing market price on the last preceding day on which such
stock was traded on said exchange or system.
10. Employee Not Deemed to be a Shareholder. The Employee
---------------------------------------
shall not be deemed to be a shareholder of the Company for
any purposes with respect to any option granted hereunder
except to the extent that such option shall have been
exercised and a stock certificate issued therefor.
11. No Right to Continued Employment. Nothing in this Agreement
--------------------------------
or the Plan shall confer upon Employee any right to continue
in the employment of the Company or in any way effect the
right of the Company to terminate Employee's employment at
any time.
12. Cancellation and Rescission of Stock Option. The Committee
-------------------------------------------
may (in its sole discretion) cancel this option at any time
if Employee is not in compliance with all other applicable
provisions of this option, the Plan, and with the following
conditions:
(a) Conflict of Interest. Employee shall not render
services for any organization or engage directly or
indirectly in any business which, in the judgment of
the Committee, is or becomes competitive with the
Company, or which organization or business, or the
rendering of services to such organization or business,
is or becomes otherwise prejudicial to or in conflict
with the interests of the Company (including but not
limited to serving as an employee, consultant, advisor
or in any other capacity to such organization or
business, or participating in a hostile takeover
attempt of the Company by such organization or
business);
(b) Certain Prohibited Activities. Employee shall comply
fully with applicable laws and government regulations
(both civil and criminal) and maintain high ethical
standards. Employee shall also comply with the
Company's corporate policies, including, but not
limited to, Policy No. G-2, Guideline for Business
Conduct, and Policy No. G-3, Antitrust Compliance, and
the Company's Agreement for Protection of Trade Secrets
and Sales Data and for Assignment of Inventions; or
(c) Leaving the Company within One Year of Exercise.
Employee shall not exercise any portion of this option
and then leave the employment of the Company within one
year after exercise for any reason except death,
disability, normal retirement, or early retirement with
the consent of the Board of Directors.
The judgment of the Committee shall be based on Employee's
position and responsibilities while employed by the Company,
Employee's post-employment responsibilities and position
with the other organization or business, the extent of past,
current and potential competition or conflict between the
Company and the other organization or business, the effect
on the Company's customers, suppliers and competitors of
Employee's assuming the post-employment position, and such
other considerations as are deemed relevant given the
applicable facts and circumstances. If Employee retires, he
shall be free, however, to purchase as an investment or
otherwise, stock or other securities of such organization or
business so long as they are listed upon a recognized
securities exchange or traded over-the-counter, and such
investment does not represent a substantial investment to
Employee or a greater than 10 percent equity interest in the
organization or business.
Failure to comply with the provisions of paragraphs (a) or
(b) of this Paragraph 13 prior to, or during the twenty-four
(24) months after, any exercise pursuant to this option, or
failure to comply with the provisions of paragraph (c) of
this Paragraph 13 during the twelve (12) months after
exercise pursuant to this option, shall cause such exercise
to be subject to rescission. The Company shall notify
Employee in writing of any such rescission within
twenty-four (24) months after such exercise under paragraphs
(a) or (b) or within twelve (12) months after such exercise
under paragraph (c). In the event of notice of rescission,
Employee shall pay to the Company the amount of any gain
realized or payment received pertaining to the rescinded
exercise of this option.
By accepting this Agreement, Employee consents to a
deduction from any amounts the Company owes Employee from
time to time (including amounts owed to Employee as salary
or other compensation, fringe benefits, or vacation pay, as
well as any other amounts owed to Employee by the Company),
to the extent of the amounts Employee owes the Company under
paragraphs (a), (b), or (c) above. Whether or not the
Company elects to make any set-off in whole or in part, if
the Company does not recover by means of set-off the full
amount Employee owes, calculated as set forth above,
Employee agrees to pay immediately the unpaid balance to the
Company. Such payment shall be made either in cash or by
returning to the Company the number of shares of Common
Stock that Employee received in connection with the
rescinded exercise.
13. Grant Subject to 1994 Incentive Compensation Plan. This
-------------------------------------------------
award is subject to all the terms and conditions set forth
in the 1994 Incentive Compensation Plan which is hereby
incorporated by reference and to all determinations of the
Committee of the Board of Directors which is authorized to
administer the Plan. As a condition of granting the option
herein granted, the Employee agrees, for himself and his
personal representatives, that any requirement or
interpretation, dispute, or disagreement which may arise
under or as a result of or pursuant to this Agreement or the
Plan shall be determined by the Committee in its sole
discretion, and that any interpretation or determination by
the Committee shall be final, binding and conclusive.
14. Governing Law. This Agreement shall be construed,
-------------
administered and governed in all respects in accordance with
the laws of the State of Wisconsin.
IN WITNESS WHEREOF, the Company has caused this option to be
executed on the date first above written.
ATTEST: MODINE MANUFACTURING COMPANY
By:
- -------------------------- ------------------------------------
W. E. Pavlick, Secretary D. R. Johnson, President and
Chief Executive Officer
Accepted and Agreed To:
----------------------------------------
Employee