EXHIBIT 10(a)
MODINE MANUFACTURING COMPANY
DIRECTOR EMERITUS RETIREMENT PLAN
EFFECTIVE APRIL 1, 1992
MODINE MANUFACTURING COMPANY
DIRECTOR EMERITUS RETIREMENT PLAN
EFFECTIVE APRIL 1, 1992
WHEREAS, the Board of Directors of Modine Manufacturing
Company has determined it to be in the best interest of the
Company to establish a retirement plan for directors of the
Company.
NOW, THEREFORE, effective as of April 1, 1992, Modine
Manufacturing Company establishes this Modine Manufacturing
Company Director Emeritus Retirement Plan with respect to
directors of Modine who on or after April 1, 1992 retire, die
or otherwise terminate their service as a director of Modine.
ARTICLE I
DEFINITIONS
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For the purposes of this retirement plan, the following
words and phrases shall have the meanings indicated, unless a
different meaning is clearly required by the context:
1.1 The term "Act" means the Employee Retirement Income
Security Act of 1974.
1.2 The term "Actuarial Equivalent" means equality in
value of the aggregate amount expected to be received under
the Plan based on the discount rate and mortality assumptions
applicable, as defined below:
(a) Discount rate/assumption - For purposes of
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computing any adjustments called for under the
terms of the Plan for any benefit (when such
adjustment is not otherwise provided for in the
Plan), the discount rate assumption shall be the
same discount rate as then utilized for the
calculation of the present value of future benefits
as disclosed in the financial statement pension
plan footnotes of the Modine Manufacturing Company
annual report.
(b) Mortality Assumption - For purposes of
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computing any adjustments called for under the
terms of the Plan for any benefit (when such
adjustment is not otherwise provided for in the
Plan), the mortality assumption shall be based on
the 1971 Group Annuity Mortality Table.
1.3 The term "Beneficiary" means the person or persons
designated by a Director or former Director as his
beneficiary as provided in Section 3.5.
1.4 The term "Board" or "Board of Directors" means the
current Board of Directors of the Company.
1.5 The term "Company" or "Modine" means Modine
Manufacturing Company, a Wisconsin corporation, its corporate
successors, and the surviving corporation resulting from any
merger or consolidation of Modine Manufacturing Company with
any other company or companies.
1.6 A "Director" means any person who is or becomes a
director of Modine on or after April 1, 1992 regardless of
whether such person is also an employee of Modine on or after
such date.
1.7 The "Effective Date" means April 1, 1992.
1.8 The "Plan" means this Modine Manufacturing Company
Director Emeritus Retirement Plan with all amendments and
supplements hereafter made.
1.9 The "Plan Year" means the twelve-month period
commencing April 1, 1992 and each April 1 thereafter.
1.10 "Retirement Benefit" means the amount of retirement
benefit payable annually to a retired Director under the
terms of the Plan.
1.11 "Surviving Spouse" shall mean and be limited to the
person who (i) was the Director's or former Director's spouse
at the time of his death, and (ii) was his spouse for at
least one full year immediately prior to the date of his death.
1.12 "Retirement Date" means with respect to any
Director, the last day of the calendar quarter in which he
retires from his service as a Director of Modine.
1.13 "Survivor Benefit" means the amount of survivor
benefit payable annually to the Surviving Spouse or
Beneficiary of a former Director under the terms of the Plan.
1.14 "Termination Date" means with respect to any
Director, the date upon which he terminates his service as a
director of Modine.
ARTICLE II
RETIREMENT BENEFIT
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2.1 Eligibility. Each person who is or becomes a
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Director of Modine on or after April 1, 1992 and whose
service as a Director with Modine ceases on or before his
Retirement Date shall be eligible for a Retirement Benefit.
2.2 Benefit Amount. The amount of the Retirement
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Benefit for a Director shall be an amount equal to the
annualized rate at which Directors are being paid for their
services to the Company as Directors (including any Board
meeting fees but excluding any applicable committee meeting
fees) as in effect at the time such Director ceases his
service as a Director.
2.3 Benefit Payment. The Retirement Benefit shall be
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paid to a retired Director in four equal quarterly payments
commencing with the first day of the first calendar quarter
following the calendar quarter in which his Retirement Date
occurs and shall be payable on the first day of each
succeeding calendar quarter until the earlier of: (i) his
death; or (ii) the period of time with respect to which a
Retirement Benefit is paid under the Plan equals the period
of time with respect to which the retired Director served as
a Director of the Company.
ARTICLE III
SURVIVOR BENEFIT
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3.1 Eligibility.
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(a) If a deceased Director, at the time of death, had not
commenced receiving Retirement Benefit payments under
the Plan, such deceased Director's Surviving Spouse or
Beneficiary, as determined pursuant to Section 3.5 of
the Plan, shall be eligible to receive a Survivor Benefit
as provided in Sections 3.2(a) and 3.3(a) of the Plan.
(b) If a deceased former Director, prior to the time of
death, had ceased his services as a Director and at
the time of death was receiving or eligible to receive
Retirement Benefit payments under the Plan, such
deceased former Director's Surviving Spouse or
Beneficiary, as determined pursuant to Section 3.5 of
the Plan, shall be eligible to receive a Survivor Benefit
as provided in Sections 3.2(b) and 3.3(b) of the Plan.
3.2 Benefit Amount.
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(a) The amount of Survivor Benefit payable to a deceased
Director's Surviving Spouse or Beneficiary who is
eligible for such benefit pursuant to Section 3.1(a)
of the Plan shall be equal to the amount of Retirement
Benefit that would have been paid to the Director
determined in accordance with Section 2.2 of the Plan
assuming he had not died but his services as a Director
had ceased as of the date of his death.
(b) The amount of Survivor Benefit payable to a deceased
former Director's Surviving Spouse or Beneficiary who
is eligible for such benefit pursuant to Section 3.1(b)
of the Plan shall be equal to the amount of Retirement
Benefit that was being paid, or was due to be paid, to
the deceased former Director at the time of his death.
3.3 Benefit Payments.
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(a) A Surviving Benefit payable to a deceased
Director's Surviving Spouse or Beneficiary pursuant
to Section 3.1(a) of the Plan shall be paid in four
equal payments commencing with the first day of the
first quarter following the calendar quarter in which
the Director's death occurred and shall be payable on
the first day of each succeeding calendar quarter until
the period of time with respect to which the Surviving
Spouse or Beneficiary is paid a Survivor Benefit under
the Plan equals the period of time with respect to which
the retired Director served as a Director of the Company.
(b) A Survivor benefit payable to a deceased
former Director's Surviving Spouse or Beneficiary
pursuant to Section 3.1(b) of the Plan shall be
paid in four equal payments commencing with the
first day of the first quarter following the
calendar quarter in which the former Director's
death occurred and shall be payable on the first
day of each succeeding calendar quarter until the
period of time with respect to which the Surviving
Spouse or Beneficiary is paid a Survivor Benefit
under the Plan when combined with the period of
time with respect to which the deceased former
Director was paid a retirement benefit pursuant to
Section 2.3 of the Plan equals the period of time
with respect to which the deceased former Director
served as a Director of the Company.
3.4 Death of Surviving Spouse or Beneficiary. In the
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event a Surviving Spouse or Beneficiary receiving Survivor
Benefit payments under the Plan dies prior to receiving the
last Survivor Benefit payment to which such person is
entitled pursuant to Section 3.3(a) or 3.3(b) of the plan,
the estate of such deceased Surviving Spouse or Beneficiary
shall be paid in a single lump sum payment the actuarial
equivalent present value of an amount equal to the total of
the quarterly payments remaining to be paid at the time of
such Surviving Spouse's or Beneficiary's death. The lump sum
payment provided pursuant to this Section 3.4 shall be paid
on the first day of the first calendar quarter following the
death of such Surviving Spouse or Beneficiary, or as soon
thereafter as administratively practicable.
3.5 Determination of Person Entitled to Receive
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Survivor Benefit. In the event of the death of a Director or
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former Director under circumstances under which a Survivor
Benefit is payable under Section 3.1(a) or 3.1(b) of the
Plan, if such deceased Director or deceased former Director
is survived by a Surviving Spouse, such Survivor Benefit will
be paid to such Surviving Spouse unless the deceased Director
or deceased former Director not less than 10 days prior to
his death has filed with Modine, as plan administrator, a
designation, in form and substance satisfactory to Modine,
designating a person or persons other than his Surviving
Spouse as his Beneficiary for receiving Survivor Benefit
payments under the Plan.
In the event a deceased Director or deceased former
Director is not survived by a Surviving Spouse and has not
designated a Beneficiary or no person designated as his
Beneficiary has survived the deceased Director or deceased
former Director, any Survivor Benefit payable pursuant to
Section 3.2(a) or 3.2(b) of the Plan shall be payable to the
estate of such deceased Director or deceased former Director
in a single lump sum on the first day of the first calendar
quarter following the death of such deceased Director or
deceased former Director, or as soon thereafter as
administratively practicable.
ARTICLE IV
GENERAL PROVISIONS REGARDING BENEFITS
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4.1 Restriction on Alienation of Retirement Benefits.
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(a) Except as provided in Section 4.1(b) of the
Plan, the rights and interests of any person under
the Plan shall not be subject in any manner to
sale, transfer, encumbrance, assignment, pledge, or
alienation of any kind; nor may such rights or
interests be resorted to, either voluntarily or
involuntarily, for the satisfaction of the debts
of, or other obligations or claims against, such
person, including claims for alimony, support,
separate maintenance and claims in bankruptcy
proceedings. No such person shall have power in
any manner to sell, transfer, encumber, assign,
pledge or alienate any of his interests or rights
under the Plan and any attempt to do so shall be
void.
(b) Notwithstanding the provisions of Section 4.1(a)
of the Plan, all or any part of the benefit of a
Director under the Plan shall be subject to and
payable in accordance with the applicable
requirements of any Qualified Domestic Relations
Order, as that term is defined in Section 206(d)(3)
of the Employee Retirement Income Security Act of
1974 (hereinafter referred to in the Plan as the
"Act"), and Modine shall provide for payment in
accordance with such order and Section and all
regulations promulgated under such Section. All
such payments pursuant to a Qualified Domestic
Relations Order shall be subject to reasonable
rules and regulations promulgated by Modine;
provided that such rules and regulations are
consistent with Section 206(d)(3) of the Act. If
prior to the commencement of payment of a Director's
Retirement Benefit, any amount attributable to his
Retirement Benefit is allocated for, or paid to, an
alternate payee or payees pursuant to a Qualified
Domestic Relations Order, the amount of his
Retirement Benefit shall be reduced by an amount
equal to the Actuarial Equivalent of the amount so
paid or allocated to an alternate payee or payees.
4.2 Facility of Payment. In the event that it should
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be found that any individual to whom an amount is payable
under the Plan is incapable of attending to his financial
affairs because of any mental or physical conditions,
including the infirmities of advanced age, such amount
(unless prior claim therefor shall have been made by a duly
qualified guardian or other legal representative) may, in the
discretion of Modine, be paid to another person for the use
or benefit of the individual found incapable of attending to
his financial affairs or in satisfaction of legal obligations
incurred by or on behalf of such individual. Any such payment
made in accordance with the provisions of this Section 4.2 of
the Plan shall be a complete discharge of liability therefor
under the Plan.
4.3 Nonforfeitability of Benefits. Except as provided
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in Section 8.2 of the Plan, a Director's right to a
retirement benefit under the Plan shall be nonforfeitable
upon and after his Retirement Date.
4.4 Payment of Benefits. The benefits provided under the
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Plan shall be paid solely from the general assets of Modine and
Modine shall not have any obligation to establish or maintain a
separate fund or funds to provide for the payment of benefits.
4.5 Application of Certain Plan Provisions. For purposes
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of the general administrative provisions of the Plan, a
Director's former spouse, a former Director's former spouse, a
deceased Director's Surviving Spouse or Beneficiary, or a
deceased former Director's Surviving Spouse or Beneficiary
shall be treated as any other person entitled to receive
benefits under the Plan upon any termination of the plan, and
any such former spouse, Surviving Spouse or Beneficiary who
has an interest under the Plan at the time of such termination,
which does not cease by reason thereof, shall be deemed to be
a retired Director for all purposes of the Plan.
4.6 Service of Process. The General Counsel of Modine
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Manufacturing Company is hereby designated as the agent for
service of legal process on the Plan.
4.7 Governing Law. The Plan shall be interpreted,
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administered and enforced in accordance with the laws of the
State of Wisconsin, and the rights of Directors, former
Directors, former spouses, Surviving Spouses, Beneficiaries
and all other persons shall be determined in accordance
therewith, provided, however, that to the extent federal law
is applicable, such federal law shall apply.
4.8 Titles. Titles are provided in the Plan for
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convenience of reference only and are not to serve as a basis
for interpretation or construction of the Plan.
4.9 References. Unless the context clearly indicates
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to the contrary, a reference to a Plan provision, statute,
regulation or document shall be construed as referring to any
subsequently enacted, adopted or executed counterpart.
4.10 Pronouns. Use of any form of the masculine pronoun
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in this Plan shall, when the circumstances make it
appropriate, be deemed to include the equivalent form of the
female pronoun.
ARTICLE V
ADMINISTRATION
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5.1 Authority of Modine. Modine, which shall be
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administrator, shall have all the powers, authorities and
responsibilities expressly conferred upon herein and further
shall have the sole right to interpret and construe the Plan,
and to determine any disputes arising thereunder; subject,
however, to the provisions of Section 5.3 and 5.4 of the
Plan. In exercising such powers and authorities and in
fulfilling such responsibilities, Modine shall at all times
exercise good faith, apply standards of uniform application
and refrain from arbitrary action. Modine may employ such
attorneys, agents and accountants as it may deem necessary or
advisable to assist it in carrying out its duties hereunder.
Modine, by action of the Board of Directors, may designate a
person or persons other than Modine to carry out any of such
powers, authorities or responsibilities.
5.2 Action of Modine. Any of Modine's powers,
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authorities or responsibilities for the operation and
administration of the Plan which have not been delegated in
accordance with Section 5.1 of the Plan may be exercised by a
majority of the members of the Board of Directors of Modine,
either by a vote at a meeting, or in writing without a
meeting. All notices, advice, directions, certifications,
approvals and instructions required or authorized to be given
by Modine under the Plan shall be in writing and signed by
either: (i) a majority of the members of the Board of
Directors of Modine, or by such member or members as may be
designated by an instrument in writing, signed by all members
thereof, as having authority to execute such documents on his
behalf; or (ii) a person who becomes authorized to act for
Modine in accordance with the provisions of Section 5.1 of
the Plan. Subject to the provisions of Section 5.3 of the
Plan, any action taken by Modine which is authorized,
permitted or required under the Plan shall be final and
binding upon Modine, and all persons who claim an interest
under the Plan.
5.3 Denial of claims. Whenever Modine denies, whether
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in whole or in part, a claim for benefits filed by any person
(hereinafter referred to in this Article as "Claimant"), Modine
shall transmit a written notice setting forth, in a manner
calculated to be understood by the Claimant, a statement of
the specific reasons for the denial of the claim, reference
to the specific Plan provisions on which the denial is based,
a description of any additional material or information
necessary to perfect the claim (including an explanation of
why such material or information is necessary) and an
explanation of the Plan's claims review procedure as set
forth in Section 5.4 of the Plan. In addition, the written
notice shall contain the date on which such notice was sent
and a statement advising the Claimant that within 60 days of
the date on which he received such notice, he may have Modine
review its decision denying the Claimant's claim for benefits.
5.4 Claims Review Procedure. Within 60 days of the
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date on which the notice of denial of claim is received by
the Claimant, the Claimant or his authorized representative
may request that the claim denial be reviewed by filing with
Modine a written request therefor, which request shall
contain the following information:
(a) The date on which the notice of denial of
claim was received by the Claimant;
(b) The date on which the Claimant's request for
review was filed with Modine; provided, however,
that the date on which the Claimant's request for
review was in fact filed with Modine shall control
in the event the date of actual filing is later
than the date started by the Claimant pursuant to
this Section 5.4;
(c) The specific portions of the denial of his
claim which the Claimant requests Modine to review;
(d) A statement by the Claimant setting forth the
basis upon which he believes Modine should reverse
its previous denial of his claim for benefits and
accept his claim as made; and
(e) Any written material (including as exhibits)
which the Claimant desires Modine to examine in its
consideration of his position as stated pursuant to
Section 5.4(d) of the Plan.
Within 60 days of the date determined pursuant to
Section 5.4(b) of the Plan, Modine shall conduct a full and
fair review of its decision denying the Claimant's claim for
benefits. Within ten days following the date of such review,
Modine shall send to the Claimant its written decision setting
forth, in a manner calculated to be understood by the Claimant,
a statement of the specific reasons for its decision, including
reference to the specific Section of the Plan relied upon.
5.5 Indemnification. In addition to whatever rights of
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indemnification the members of the Board of Directors of
Modine, or any other person or persons to whom any powers,
authorities or responsibilities of Modine are allocated or
delegated pursuant to Section 5.1(b) of the Plan may be
entitled under the Certificate of Incorporation or by-laws of
Modine, including any amendments thereto, under any provision
of law, or under any other agreement, Modine shall satisfy any
liability actually and reasonably incurred by any such member
or such other person or persons, including expenses, attorney's
fees, judgments, fines and amounts paid in settlement, in
connection with any threatened, pending or completed action
suit or proceeding which is related to the exercise or failure
to exercise by such member or such other person or persons, of
any of the powers, authorities, responsibilities or discretion
of Modine as provided under the Plan, or reasonably believed by
such members or such other person or persons to be provided
thereunder, and any action taken by such member or such person
or persons in connection therewith.
ARTICLE VI
AMENDMENT AND DURATION
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6.1 Amendment and Termination. Modine reserves the
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right to amend the Plan, or to terminate the Plan at any time
and from time to time by resolution of the Board of Directors
of Modine and all persons claiming any interest under the
Plan shall be bound thereby; provided, however, that no
amendment shall be adopted, the effect of which would
directly or indirectly (i) divest the interest of any
Director, or any person entitled to receive a benefit under a
Director, in any amount that any of them would have received
had the Director's services as a Director terminated
immediately prior to the effective date of such amendment, or
(ii) divest the interest of any former Director or any person
entitled to receive a benefit under a former or deceased
former Director, in any amount that any of them would
otherwise have received.
6.2 Termination. In the event of a termination of the
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Plan, the benefit interests of all Directors, former
Directors, deceased former Directors, and each person or
persons entitled to or receiving a benefit under or through
them shall be determined and paid by Modine in accordance
with the provisions of this Section 6.2.
For purposes of this Section 6.2, the amount to be
paid to any individual hereunder shall be the Actuarial
Equivalent of all of the benefits payable under the Plan to
such individual. Following the determination of the amount
to be paid to any individual pursuant to this Section 6.2,
such amount shall be paid in a single lump sum payment within
10 days after such determination.
Notwithstanding anything to the contrary contained
herein, in no event will the amount to be paid pursuant to
this Section 6.2 be determined and paid later than 30 days
after the effective termination date of the Plan.
6.3 Immediate Vesting Upon Termination. Upon
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termination of the Plan, pursuant to Sections 6.1 and 6.2 of
the Plan, the rights of all affected Directors, former
Directors, deceased former Directors, and persons claiming a
benefit under or through them to benefits accrued to the date
of such termination, shall be fully vested and
nonforfeitable.
ARTICLE VII
CHANGE OF CONTROL
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7.1 Termination Due to Change in Control. The
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provisions of Article VI notwithstanding, in the event of a
Change in Control, the plan shall automatically terminate
without any further action.
7.2 Lump Sum Payment of Benefits. In the event of the
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termination of the Plan pursuant to Section 7.1 of the Plan,
the benefit interest of all Directors, former Directors,
deceased former Directors, and each person or persons
entitled to or receiving a benefit under or through them,
shall be determined and paid by Modine in accordance with the
provisions of this Section 7.2.
For purposes of this Section 7.2, the amount to be
paid to any individual hereunder shall be an amount equal to
the total of all quarterly benefit payments which otherwise
would be payable under the Plan to such individual.
Following the determination of the amount to be paid to any
individual pursuant to this Section 7.2, such amount shall be
paid in a single lump sum payment within 10 days after such
determination.
Notwithstanding anything to the contrary contained
herein, in no event will the amount to be paid pursuant to
this Section 7.2 be determined and paid later than 30 days
after the effective termination date of the Plan pursuant to
Section 7.1 of the Plan.
7.3 Immediate Vesting Upon Termination. Upon
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termination of the Plan, pursuant to Sections 7.1 and 7.2 of
the Plan, the rights of all affected Directors, former
directors, deceased former Directors, and persons claiming a
benefit under or through them, to benefits accrued to the date
of such termination, shall be fully vested and nonforfeitable.
7.4 Change in Control Defined. For purposes of the
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Plan, a "Change in Control" shall mean any of the following
events:
(a) The acquisition (other than from the Company)
by any person (as such term is defined in Sections
13(d) or 14(d) of the Securities Exchange Act of
1934, as amended (the "1934" Act)) of beneficial
ownership (within the meaning of Rule 13d-3
promulgated under the 1934 Act) of thirty-five
percent (35%) or more of the combined voting power
of the Company's then outstanding voting
securities; or
(b) The individuals who, as of April 1, 1992, are
members of the Board of Directors of Modine (the
"Incumbent Board"), cease for any reason to
constitute a majority of the board, unless the
election, or nomination for election by the
Company's stockholders, of any new director was
approved by a vote of a majority of the Incumbent
Board, and such new director shall, for purposes of
this Agreement, be considered as a member of the
Incumbent Board; or
(c) Approval by stockholders of the Company of (i)
a merger or consolidation involving the Company if
the stockholders of the Company, immediately before
such merger or consolidation, do not, as a result
of such merger or consolidation, own, directly or
indirectly, more than sixty-five percent (65%) of
the combined voting power of the then outstanding
voting securities of the Company resulting from
such merger or consolidation in substantially the
same proportion as their ownership of the combined
voting power of the voting securities of the
Company outstanding immediately before such merger
or consolidation, or (ii) a complete liquidation or
dissolution of the Company or an agreement for the
sale or other disposition of all or substantially
all of the assets of the Company.
Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur pursuant to Section 7.4(a) of
the Plan, solely because thirty-five percent (35%) or more of
the combined voting power of the Company's then outstanding
securities is acquired by (i) a trustee or other fiduciary
holding securities under one or more employee benefit plans
maintained by the Company or any of its subsidiaries or (ii)
any corporation which, immediately prior to such acquisition,
is owned directly or indirectly by the stockholders of the
Company in the same proportion as their ownership of stock in
the Company immediately prior to such acquisition.
ARTICLE VIII
MISCELLANEOUS
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8.1 Services.
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(a) Each former Director who is receiving a
Retirement Benefit under the Plan shall, at
reasonable times and places as requested by any
then current Director of the Company, be available
for consultation concerning the business and
affairs of the Company. Each such former Director
shall attend such meeting or meetings of the Board
of Directors as any person, who at the time is a
member of the Chief Executive Office of the
Company, requests.
(b) The foregoing notwithstanding, it is
understood that a former Director providing service
pursuant to Section 8.1(a) shall be reimbursed by
the Company for any and all reasonable expenses
which are incurred in providing the requested
services or attending any meeting of the Board as
requested.
(c) It is understood that any former Director
while attending any meeting of the Board, since he
is not a duly elected and qualified Director of the
Company, shall not vote nor be counted in
determining a quorum at any such meeting.
8.2 Non-Competition.
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(a) Notwithstanding anything to the contrary
contained in the Plan, in the event a former
Director irrespective of whether he is receiving
Retirement Benefit payments under the Plan engages
directly or indirectly in activities which compete
in any manner with the business or activities of
the Company, the right of such former Director to
receive any Retirement Benefit payments under the
Plan and the right of any other person to receive
any benefit payments under the Plan shall be
immediately terminated and no Retirement Benefit or
other benefit payments under the Plan shall be paid
thereafter to the former Director or to any person
who claims a benefit under or through him.
(b) For purposes of Section 8.2(a), a former
Director shall not be deemed to have engaged in
competition with the business or activities of the
Company if such former Director's sole relationship
with a competitor of the Company consists of his
holding, directly or indirectly, an equity interest
in such other company not greater than two percent
(2%) of such other company's outstanding
securities.
8.3 Fraud or Other Criminal Activity. Notwithstanding
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anything to the contrary contained in the Plan, in the event
a Director or former Director, irrespective of whether he is
receiving Retirement Benefit payments under the Plan, is
convicted of fraud or of a felony (and with respect to such
conviction such person's right to file an appeal after
conviction has expired, or if such person has filed an appeal
after conviction, the appellate court fails to reverse the
conviction) and such fraud or felony is determined by a
majority of the members of the Board of Directors then in
office (excluding, if applicable, the Director guilty of such
fraud or felony) to have damaged Modine, the right of such
Director or former Director to receive any Retirement Benefit
payments under the plan and the right of any other person to
receive any benefit payments under the Plan under such
Director or former Director shall be immediately terminated
and no Retirement Benefit or other benefit payments under the
plan shall be paid thereafter to the Director, former
Director or any person who claims a benefit under or through
such Director or former Director. For purposes of this
Section 8.3 of the plan, any determination by the members of
the Board of Directors that any fraud or felony of a Director
or former Director has damaged Modine shall be conclusive and
binding upon the Director or former Director and any person
who claims a benefit under or through him.
EXHIBIT (10(c)
A G R E E M E N T
between
MODINE MANUFACTURING COMPANY
and
R. T. SAVAGE
dated
January 1, 1984
TABLE OF CONTENTS
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Section Page
- ------- ----
Recitals . . . . . . . . . . . . . . . . . . . 3
I Employment; period of employment . . . . . . . 4
II Position, duties, responsibilities . . . . . . 5
III Compensation, compensation plans, perquisites. 7
IV Employee Benefit Plans . . . . . . . . . . . . 10
V Supplemental Retirement Annuity. . . . . . . . 12
VI Effect of Death or Disability. . . . . . . . . 15
VII Termination. . . . . . . . . . . . . . . . . . 16
VIII No Obligation to Mitigate Damages. . . . . . . 27
IX Confidential Information, Non Compete. . . . . 28
X Withholding. . . . . . . . . . . . . . . . . . 32
XI Notices. . . . . . . . . . . . . . . . . . . . 32
XII General Provisions . . . . . . . . . . . . . . 33
XIII Amendment or Modification; Waiver. . . . . . . 36
XIV Severability . . . . . . . . . . . . . . . . . 37
XV Successors to the Company. . . . . . . . . . . 37
XVI Change in Control. . . . . . . . . . . . . . . 38
XVII Governing Law. . . . . . . . . . . . . . . . . 39
AGREEMENT
THIS AGREEMENT made and entered into as of the 1st day of
January, 1984, by and between Modine Manufacturing Company, a
Wisconsin corporation, having its principal place of business in
Racine, Wisconsin (the "Company"), and R. T. Savage, of Racine,
Wisconsin (the "Executive").
WHEREAS:
A. The Executive has been employed by the Company
for a period of 11 years.
B. The Executive is a principal executive officer
of the Company and is currently a group vice
president.
C. The Executive possesses intimate knowledge of
the business and affairs of the Company, its
policies, methods, potential and operations.
D. The Board of Directors of the Company (the
"Board") recognizes that Executive's contribution
to the growth and success of the Company has been
substantial and desires to assure the Company of
Executive's continued employment in an executive
capacity and to compensate him therefor.
E. Executive is desirous of committing himself to
serve the Company for the period and on the terms
herein provided.
NOW THEREFORE, In consideration of the foregoing and of
the respective covenants and agreements of the parties herein
contained, the parties hereto agree as follows:
I. Employment; period of employment.
1.01 The Company hereby agrees to continue
Executive in its employ, and Executive hereby
agrees to remain in the employ of the corporation
for the period set forth in paragraph 1.02 below
(Period of Employment), in the position and with
the duties and responsibilities set forth in
Section II below and subject to the other terms and
conditions hereinafter stated.
1.02 The Period of Employment shall commence on the
date first above written and shall continue until
the close of business on the third anniversary
thereof; provided, however, that on each
anniversary of the date of this Agreement the
Period of Employment shall be automatically
extended for an additional year unless prior
thereto either party hereto has given written
notice to the other that such party does not wish
to extend the Period of Employment. In the event
the Executive shall continue in the full time
employment of the Company after the latter date,
such continued employment shall be subject to the
terms and conditions of this Agreement and the
Period of Employment shall include the period
during which the Executive in fact so continues in
such employment.
II. Position, duties, responsibilities.
2.01 (a) It is contemplated that during the
Period of Employment the Executive shall
continue to serve as a principal officer of
the Company and as a member of its Board of
Directors if serving as a member of the Board
of Directors on the date of this Agreement or
if elected to the Board of Directors during
the Period of Employment with the office(s)
and title(s) set forth in Exhibit A attached
to and made part of this Agreement, with
reporting responsibility as set forth in such
Exhibit A and with duties and
responsibilities including those specifically
set forth in such Exhibit A.
(b) At all times during the Period of
Employment 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 in subparagraph
2.01(a) above and Exhibits A to this
Agreement.
2.02 During the Period of Employment the Executive
shall, without compensation other than that herein
provided, also serve and continue to serve as an
officer or director, or both, of any subsidiary,
division or affiliate of the Company.
2.03 Throughout the Period of Employment the
Executive shall devote his full time and undivided
attention during normal business hours to the
business and affairs of the Company except for
reasonable vacations, approved leaves of absence,
and except for illness or incapacity but nothing in
this Agreement shall preclude the Executive from
devoting reasonable periods required for:
(a) serving as a director or a member
of any organization involving no conflict of
interest with the interests of the Company;
(b) engaging in charitable and community activities
and
(c) managing his personal investments,
provided that such activities do not materially
interfere with the regular performance of his
duties and responsibilities under this Agreement.
2.04 The office of the Executive shall be located
at the principal office of the Company within the
Racine, Wisconsin 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 ninety (90) working days in any
year nor more than twenty (20) consecutive days at
any one time.
III. Compensation, compensation plans, perquisites
3.01 (a) For all services rendered by the Executive in
any capacity during the Period of Employment,
including, without limitation, services as an
executive, officer, director or member of any
committee of the Company or of any subsidiary,
division or affiliate thereof, the Executive
shall be paid as compensation:
(i) A base salary (the Minimum Base Salary),
payable not less often than monthly, at
the rate of no less than $10,417 per month,
with such increases in such rate as shall
be awarded from time to time to reflect
increases in the cost of living and
such increases as shall be awarded
from time to time in accordance with
the Company's regular administrative
practices of other salary increases
applicable to executives of the
Company in effect on the date of this
Agreement (the Minimum Base Salary)
and
(ii) An annual incentive award or bonus under
the Company's Management Incentive Plan,
or such equivalent successor plan as may be
adopted by the Company, upon a basis
that will render total compensation
for any calendar month, consisting of
the Minimum Base Salary provided in
clause (i) of this subparagraph 3.01
(a), plus the annual incentive award
for such month determined by dividing
the annual incentive award required by
this Agreement to be made for the
fiscal year of the Company in which
such month occurred by the number of
months in such fiscal year, equal to
no less than $11,667 per month.
(b) Subject to the provisions of clause
(ii) of subparagraph 3.01(a) above, nothing
in this Agreement shall preclude a change in
the mix between the base salary and annual
incentive award of the Executive by
increasing the base salary of the Executive,
or the incentive award or both.
(c) Any increase in salary pursuant to
clause (i) of subparagraph 3.01(a) or in
annual incentive award or other compensation
shall in no way diminish any other obligation
of the Company under this Agreement.
3.02 During the Period of Employment the Executive
shall be and continue to be a full participant in
the Incentive Stock Option Plan of the Company and
in any and all other executive incentive plans in
which executives of the Company 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 right plans, or equivalent
successor plans that may be adopted by the Company,
with at least the same reward opportunities that
have heretofore been provided. Nothing in this
Agreement shall preclude improvement of reward
opportunities in such plans or other plans in
accordance with the present practice of the
Company.
3.03 During the Period of Employment the Executive
shall be entitled to perquisites, including without
limitation, an office, secretarial and clerical
staff, and to fringe benefits, including, without
limitation, the business and personal use of one or
more automobiles and payment or reimbursement of
country club and luncheon club fees and dues,
executive health programs, paid annual Mayo Clinic
visit, income tax services, estate planning or
other executive perquisites of the Company
established for key employees, in each case at
least equal to those incidental to his office on
the date of this Agreement, as well as to
reimbursement, upon proper accounting, of
reasonable expenses and disbursements incurred by
him in the course of his duties.
3.04 The compensation, perquisites and benefits
provided for in this Section III, together with
other matters therein set forth, are in addition to
the benefits provided for in Sections IV and V of
this Agreement.
IV. Employee Benefit Plans
4.01 The Executive, his dependents and beneficiaries,
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 Disability Plan of the Company, as
defined in subparagraph 5.01(c) below, shall be
entitled to all payments and benefits and service
credit for benefits during the Period of Employment
to which officers of the Company, their dependents
and beneficiaries, are entitled as the result of the
employment of such officers during the Period of
Employment under the terms of employee plans and
practices of the Company, including, without
limitation, the Pension and Disability Plan of the
Company, as defined in subparagraph 5.01(c) below,
the Modine Contributory Employee Stock Ownership
and Investment Plan, the 401(k) plan, its death
benefit plans (consisting of its Group Insurance
Plan for Management Employees providing term life
insurance, accidental death and dismemberment
insurance, and travel accident insurance), its
disability benefit plans (consisting of its Income
Protection Plan providing salary continuation,
sickness and accident and long-term disability
benefits), its medical, dental and health and
welfare plans and other present or equivalent
successor plans and practices of the Company, its
subsidiaries and divisions, 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 Period of
Employment as a result of participation in such
plan or practice during the Period of Employment.
4.02 Nothing in this Agreement shall preclude the
Company from amending or terminating any employee
benefit plan or practice, but, it being the intent
of the parties that the Executive shall continue to
be entitled during the Period of Employment to
perquisites as set forth in paragraph 3.03 above and
to benefits and service credit for benefits under
paragraph 4.01 above at least equal to those attached
to his position on the date of this Agreement, 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 beneficiaries, 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 practice that he or his dependents
and beneficiaries 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
Company itself shall pay or provide therefor.
V. Supplemental Retirement Benefit
5.01 For the purpose of this Section V and any
other provision of this Agreement:
(a) The term "Average Annual Earnings"
shall mean the arithmetic average of the
Executive's Annual Earnings for the highest
five consecutive calendar years during the
last ten years immediately preceding the
earlier of the calendar year of the
Executive's Normal Retirement Date or
termination of service with the Company;
except that Annual Earnings in the year of
Normal Retirement or termination may also be
considered.
(b) The term "Annual Earnings" shall
mean all compensation paid to the Executive
during the calendar year for services
rendered to the Company (i.e. W-2 earnings,
plus any amount contributed on behalf of the
Executive to a Company sponsored qualified
Salary Reduction Plan).
(c) The term "Pension and Disability
Plan" shall mean the Modine Pension and
Disability Plan for Salaried Employees that
is in effect on the date hereof, and any
amendments thereto which may hereafter be
adopted.
(d) The term "Credited Service" shall
mean the period of the Executive's employment
considered in determining the amount of
benefit payable to or on behalf of the
Executive in accordance with Section 2.3 of
the Pension and Disability Plan, and
including each year of this Employment
Agreement.
5.02 Upon retirement or termination of employment
hereunder, the Executive shall be entitled to the
supplemental retirement benefit provided by this
Section V in addition to all other benefits to
which the Executive may be entitled including,
without limitation, benefits under the Pension and
Disability Plan.
5.03 (a) Subject to the other provisions of
this Section V, the Executive shall be
entitled to a supplemental retirement benefit
on a straight life annuity basis payable by
the Company commencing on the first day of
the month immediately following the month in
which he retires or terminates employment,
and continuing on the first day of each month
thereafter during his lifetime.
(b) The monthly payment provided for in
subparagraph 5.03(a) above shall be equal to
one-twelfth of
(i) two (2%) percent of the Executive's
Average Annual Earnings for each year
of Credited Service up to a maximum of
twenty (20) years, plus
(ii) one (1%) percent of his Average Annual
Earnings for each year of Credited
Service in excess of twenty (20) years,
minus
(iii) one-half (1/2) of the Primary Social
Security Benefit, as defined by
Section 1.1(w) of the Pension and
Disability Plan, annualized, minus
(iv) his Retirement Pension benefit to which
he is entitled under the Pension and
Disability Plan.
5.04 A joint and survivor or other optional method
of payment applicable to the payment to the
Executive of his Retirement Pension benefit under
the Pension and Disability Plan, shall
automatically be applicable to the payment of the
supplemental retirement benefit provided by this
Section V, upon the same terms and conditions,
including reduction or discount factors, applicable
under the Pension and Disability Plan; except that
the limits of Section 4.7 of the Pension and
Disability Plan shall not apply to this
supplemental retirement benefit.
5.05 In the event that the Company defaults in
payment of all or any part of the supplemental
retirement benefit hereinbefore provided by this
Section V and fails to remedy such default within
thirty days after having received notice from the
Executive or his beneficiary, the Company shall
thereupon pay to the Executive or his beneficiary,
as the case may be, in full discharge of its
obligations under this Section V, (i) a lump sum
amount actuarially equivalent, based on the same
assumption and discount factors as would be
applicable under the Retirement Income Plan for
Salaried Employees as then in effect, to the future
payments otherwise payable under this Section V,
and (ii) an amount equal to any and all past due
payments under this Section V.
VI. Effect of Death or Disability
6.01 In the event of the death of the Executive
during the Period of Employment, the legal
representative of the Executive shall be entitled
to the compensation provided for in paragraph 3.01
above for the month in which death shall have taken
place, at the rate being paid at the time of death,
and the Period of Employment 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.
6.02 (a) The term "Disability," as used in
this Agreement, shall mean an illness or
accident occurring during the Period of
Employment which prevents the Executive from
performing his duties under this Agreement.
(b) In the event of the Disability of
the Executive during the Period of
Employment, the Executive shall be entitled
to the benefits provided for in paragraph
4.01 above, at the rate being paid at the
time of the commencement of Disability. In
addition, after a disability period of twelve
(12) months, the Executive shall receive
disability payments of 60% of the monthly
compensation set forth in paragraphs
3.01(a)(i) and 3.01(a)(ii) less the amount of
any Company group insured long-term
disability benefits he receives.
VII. Termination
7.01 The Company may at its option terminate this
Agreement at any time during the term hereof. In
the event of a termination, as defined in paragraph
7.03 below, during the Period of Employment, the
provisions of this Section VII shall apply. Any
provision of this Agreement to the contrary
notwithstanding, the payments, benefits, service
credit for benefits and other matters provided by
this Section VII in the event of such a Termination
are in addition to any payments, benefits, service
credit for benefits and other matters provided by
Section V that may apply in such event.
7.02 In the event of a Termination and subject to
compliance by the Executive with the provisions of
Section IX below, relating to confidential
information, the Company shall, as liquidated
damages or severance pay, or both, or payment for
services rendered in the past, pay to the Executive
and provide him, his dependents, beneficiaries and
estate, with the following:
(a) The Company shall pay the Executive (i) the
compensation provided in paragraph 3.01 above
for the month in which Termination shall have
occurred at the rate being paid at the time of
Termination and (ii) an amount equal to the
Average Annual Earnings of the Executive, as
defined in subparagraph 5.01(a) above, at the
end of each month thereafter commencing with
the month next following the month in which
Termination occurred and continuing during
the remainder of the Period of Employment but
in no event beyond the month in which the death
of the Executive shall have occurred nor beyond
the last month, if any, for which the Executive
would be entitled to payment in respect of
Disability under paragraphs 6.01 and 6.02(b)
above in the absence of such Termination.
(b) During the period that the payments provided
for in subparagraph (a) of this paragraph 7.02
are required to be made, the Executive, his
dependents and beneficiaries, shall continue
to be entitled to all benefits under employee
benefit plans of the Company as if the Executive
were still employed during such period under
this Agreement and, if and to the extent that
such benefits shall not be payable or provided
under any such plan by reason of the Executive
no longer being an employee of the Company as
the result of Termination, the Company shall
itself pay or provide for payment to the
Executive, his dependents and beneficiaries, of
such benefits and the service credit for benefits
provided for in subparagraph 7.02(c) below.
(c) The period in which the payments provided for
in subparagraph (a) of this paragraph 7.02 are
required to be made shall be considered
(i) service with the Company for the purpose
of continued credits under the employee
benefit plans referred to in paragraph 4.01
above and all other benefit plans of the
Company applicable to the Executive or his
beneficiaries as in effect immediately prior
to Termination but prior to any reduction of
benefits thereunder as the result of amendment
or termination during the Period of Employment;
(ii) service within the meaning of subparagraph
5.01(d) above for purposes of Section V
above; and
(iii) service with the Company for purposes of
determining payments and other rights in
respect of awards made or accrued prior to
Termination under the executive incentive
plans referred to in paragraph 3.02 above
and all other incentive plans of the Company
in which the Executive was a participant
prior to Termination.
7.03 The word "Termination," for the purpose of
this Section 7 and any other provisions of this
Agreement, shall mean:
(a) Termination by the Company of the employment of the
Executive for any reason other than for Cause as
defined in paragraph 7.04 below or for Disability
as defined in subparagraph 6.02(a) above or death.
(b) Termination by the Executive of his employment with
the Company upon the occurrence of any of the following
events:
(i) Failure to elect or reelect the Executive to
the Board of Directors of the Company, 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 Period of
Employment, or failure to elect or reelect the
Executive to, or removal of the Executive from,
the office(s) described in paragraph 2.01(a) above
and 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 paragraph 2.01 above
and Exhibit A to this Agreement, or a reduction in
compensation, which is not remedied within 30 days
after receipt by the Company of written notice
from the Executive.
(iii) A determination by the Executive made in good
faith that as a result of a Change in Control of
the Company, as defined in Section XVI below,
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 II of this Agreement and the situation
is not remedied within 30 days after receipt by
the Company of written notice from the Executive
of such determination.
(iv) A breach by the Company of any provision of this
Agreement not embraced within the foregoing clauses
(i), (ii), and (iii) of this subparagraph 7.03(b)
which is not remedied within 30 days after receipt
by the Company of written notice from the Executive.
(v) The liquidation, dissolution, consolidation or
merger of the Company 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 Company
under this Agreement but without releasing the
company that is the original party to this
Agreement;
provided that in any event set forth in this subparagraph
7.03(b) above, the Executive shall have elected to
terminate his employment under this Agreement upon not
less than forty and not more than ninety days' advance
written notice to the Board of Directors of the Company,
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 paragraph 7.03 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 Company.
7.04 For the purpose of any provision of this Agreement, the
termination of the Executive's employment shall be deemed to
have been for Cause only
(a) if termination of his employment shall have been
the result of an act or acts of dishonesty on the
part of the Executive constituting a felony and
resulting or intended to result directly or
indirectly in gain or personal enrichment at the
expense of the Company, or
(b) if there has been a breach by the Executive during
the Period of Employment of the provisions of
Section IX relating to confidential information, and
such breach results in demonstrably material injury to
the Company, 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
Company pursuant to resolution duly adopted by the
Board of Directors of the Company 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 subparagraphs (a) or (b) above,
specifying the particulars thereof in detail.
Anything in this paragraph 7.04 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
Company for Cause if termination of his employment took place
(i) as the result of bad judgment or negligence on the part of
the Executive, or (ii) as the result of an act or omission
without intent of gaining therefrom directly or indirectly a
profit to which the Executive was not legally entitled, or
(iii) 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 Company, or (iv) 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 Company, or (B) the laws of the
State of Wisconsin or (C) the directors' and officers'
liability insurance of the Company, 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 (v) 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 omissions could
not at the time of such commission or omission have been
known to a member of the Board of Directors of the Company
(other than the Executive), 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 (vi) 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
Company (other than the Executive) more than twelve
calendar months prior to notice having been given to the
Executive of the termination of his employment.
7.05 In the event that the Executive's employment shall be
terminated by the Company during the Period of Employment
and such termination is alleged to be for Cause, or the
Executive's right to terminate his employment under
paragraph 7.01 above shall be questioned by the Company,
or the Company shall withhold payments or provision of
benefits because the Executive is alleged to be
engaged in Competition in breach of the provisions
of paragraph 9.03 below or 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
Racine, Wisconsin area or other mutually agreeable
area under the rules of the American Arbitration
Association by serving a notice to arbitrate upon
the Company 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 paragraph 7.03(b) is subject to
question or that the Company is withholding or
proposes to withhold payments or provision of
benefits or within such longer period as may
reasonably be necessary for the Executive to take
action in the event that his illness or incapacity
should preclude his taking such action within such
ninety-day period.
7.06 (a) In the event that the Company defaults on
any obligation set forth in paragraph 7.02
of this Agreement 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 Company 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 Company under paragraph 7.02 of this
Agreement 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 Company when and to the
extent that they become due and payable. Any
interest or other income on such amount shall
be paid over currently as earned to the
Company. To the extent not theretofore
expended, such amount shall be repaid to the
Company 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 Company and the Executive or, in the
event of his death, his beneficiary, that all
obligations of the Company under paragraph
7.02 hereof have been substantially
satisfied.
(b) Such amount under (a) above shall, in the
event of any question, be determined jointly
by the firm of certified public accountants
regularly employed by the Company 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.
(c) The third-party stakeholder, the fees and
expenses of which shall be paid by the Company,
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.
VIII. No Obligation to Mitigate Damages
8.01 In the event of a termination, as defined in
paragraph 7.03 above, the Executive shall not be
required to mitigate the amount of compensation and
benefits set forth in paragraph 7.02 above by
seeking employment with others, or otherwise, nor
shall the amount of such compensation and benefits
be reduced or offset in anyway by any income or
benefits earned by Executive from another employer
or other source after the termination becomes
effective.
IX. Confidential Information, Non Compete
9.01 The Executive agrees not to disclose, (either
while in the Company's employ, while engaged as a
consultant or at any time thereafter, to any person
not employed by the Company, or not engaged to
render services to the Company, except with the
prior written consent of an officer authorized to
act in the matter by the Board of Directors of the
Company), any confidential information obtained by
him while in the employ of the Company, including,
without limitation, information relating to any of
the Company'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 Company or from disclosure
required by law or Court order. The Agreement
herein made in this paragraph 9.01 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 Company, its
subsidiaries and affiliates.
9.02 The Executive also agrees that upon leaving
the Company'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 Company, and he will surrender to
the Company any record, list, drawing, blueprint,
specification or other document or property of the
Company, its subsidiaries and affiliates, together
with any copy and reproduction thereof, mechanical
or otherwise, which is of a confidential nature
relating to the Company, 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
Company.
9.03 (a) Subject to the provisions of paragraph 7.05 above,
there shall be no obligation on the part of the
Company to make any further payments provided for
in Section VI above or to provide any further
benefits specified in such Section VI if` the
Executive shall, during the period that such
payments are being made or benefits provided,
engage in Competition with the Company as
hereinafter defined, provided all of the
following shall have taken place:
(i) the Secretary of the Company, pursuant to
resolution of the Board of Directors of the
Company, 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.
(b) The word "Competition" for the purposes of this
paragraph 9.03 and any other provision 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 5%
or more of the sales of the Company and its
subsidiaries and affiliates during the last fiscal
year of the Company preceding the termination of
the Executive's employment, in any geographical
area in which the Company, 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
Company within the meaning of this paragraph 9.03,
(ii) soliciting any person who is a customer of the
businesses conducted by the Company, or any business
in which the Executive has been engaged on behalf of
the Company and its subsidiaries or affiliates at
anytime during the term of this Agreement on
behalf of a business described in clause (i) of
this subparagraph 9.03(b) or (iii) inducing or
attempting to persuade any employee of the Company
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 subparagraph 9.03(b).
(c) The Executive agrees, in addition to the provisions
relating to Competition set forth in subparagraph
9.03(a) above, that, he will not engage in
Competition as defined in subparagraph 9.03(b) above,
during the Period of Employment, and during the
twenty-four (24) months immediately thereafter;
provided, however, that the competition prohibition
during the twenty-four (24) month following the
Period of Employment shall not be applicable should
there be a "Change in Control of the Company" as
defined in Article XVII.
X. Withholding
Anything to the contrary notwithstanding, all payments
required to be made by the Company under this Agreement
to the Executive or his estate or beneficiaries shall be
subject to the withholding of such amounts, if any,
relating to tax and other payroll deductions as the
Company may reasonably determine it should withhold
pursuant to any applicable law or regulation. In lieu of
withholding such amounts, the Company may accept other
provisions to the end that it has sufficient funds to pay
all taxes required by law to be withheld in respect of
any or all of such payments.
XI. Notices
All notices, requests, demands and other communications
provided for by this Agreement shall be in writing and
shall be sufficiently given if and when mailed in the
continental United States by registered or certified mail
or personally delivered to the party entitled thereto at
the address given from time to time by the parties to
this Agreement which address shall be such address as the
addressee may have given most recently by a similar
notice. Any such notice delivered in person shall be
deemed to have been received on the date of delivery.
XII. General Provisions
12.01 There shall be no right of set-off or
counterclaim in respect of any claim, debt or
obligation against any payments to the Executive,
his dependents, beneficiaries or estate, provided
for in this Agreement.
12.02 The Company 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 Company 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.
12.03 No right or interest to or in any payments
shall be assignable by the Executive; provided,
however, that this provision shall not preclude him
from designating one or more beneficiaries to
receive any amount that may be payable after his
death and shall not preclude the legal
representative of his estate from assigning any
right hereunder to the person or persons entitled
thereto under his will or, in the case of
intestacy, to the person or persons entitled
thereto under the laws of intestacy applicable to
his estate.
12.04 (a) 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.
(b) The Executive shall not have any present right,
title, or interest whatsoever in or to any
investments which the Company may make to aid
it in meeting its obligations under this Agreement.
(c) Except for the provisions of paragraph 7.06 above,
nothing contained in this Agreement shall create or
be construed to create a trust of any kind, or a
fiduciary relationship between the Company and the
Executive or any other person.
(d) Except for the provisions of paragraph 7.06 above,
to the extent that any person acquires a right to
receive payments from the Company 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 Company.
(e) Except for the provisions of paragraph 7.06 above,
all payments to be made under this Agreement shall
be paid from the general funds of the Company 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.
12.05 The term "beneficiaries" as used in this Agreement shall,
in the event of the death of the Executive, include any
person, including a corporate or individual beneficiary
designated by the Executive in a written instrument in
form acceptable to and filed with the Company. In the
absence of such designation, or if the designation is
invalid for any reason, the benefits shall then be paid
to the Executive's estate.
12.06 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 or
beneficiaries.
12.07 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.
12.08 The titles to sections in this Agreement are
intended solely for convenience and no provision of
this Agreement is to be construed by reference to
the title of any section.
12.09 This Agreement shall be binding upon and shall
inure to the benefit of the Executive, his heirs
and legal representatives, and the Company and its
successors as provided in Section XVI hereof.
12.10 This instrument contains the entire agreement
of the parties relating to the subject matter of
this Agreement and supersedes and replaces all
prior agreements and understandings with respect to
such subject matter, and the parties hereto have
made no agreements, representations or warranties
relating to the subject matter of this Agreement
which are not set forth herein.
XIII. 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
Company 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 Company hereunto
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.
XIV. Severability
Anything in this Agreement to the contrary
notwithstanding:
(a) In the event that any provision of this
Agreement, or portion thereof, shall be determined
to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this
Agreement and parts of such provision not so
invalid or unenforceable shall be unaffected
thereby and shall remain in full force and effect
to the fullest extent permitted by law:
(b) Any provision of this Agreement, or portion
thereof, which may be invalid or unenforceable in
any jurisdiction shall be limited by construction
thereof, to the end that such provision, or portion
thereof, shall be valid and enforceable in such
jurisdiction; and
(c) Any provision of this Agreement, or portion
thereof, which may for any reason be invalid or
unenforceable in any jurisdiction shall remain in
effect and be enforceable in any jurisdiction in
which such provision, or portion thereof, shall be
valid and enforceable.
XV. Successors to the Company
Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the
Company and any successor of the Company, including,
without limitation, any corporation or corporations
acquiring directly or indirectly all or substantially
all of the assets of the Company whether by merger,
consolidation, sale or otherwise (and such successor
shall thereafter be deemed embraced within the term
"the Company" for the purposes of this Agreement),
but shall not otherwise be assignable by the Company.
XVI. Change in Control
For the purpose of this Agreement, the term "Change in
Control of the Company" shall mean a change in control
of a nature that would be required to be reported in
response to Item 5(f) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934 as
in effect on the date of this Agreement; provided that,
without limitation, such a change in control shall be
deemed to have occurred if and when (a) any "person" (as
such term is used in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934) is or becomes a
beneficial owner, directly or indirectly, of securities
of the Company representing thirty-five percent (355)
or more of the combined voting power of the Company's
then outstanding securities or (b) during any period of
24 consecutive months, commencing before or after the
date of this Agreement, individuals who at the beginning
of such twenty-four month period were directors of the
Company cease for any reason to constitute at least a
majority of the Board of Directors of the Company.
XVII. Governing Law
The validity, interpretation, construction, performance
and enforcement of this Agreement shall be governed by
the laws of the State of Wisconsin without giving effect
to the principles of conflict of laws thereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
MODINE MANUFACTURING COMPANY
BY s/E. E. Richter
-----------------------------------
President
(SEAL)
Attest:
s/W. E. Pavlick
- --------------------------
Secretary
s/R. T. Savage
-----------------------------------
EXHIBIT A
Period Title
- ------ -----
EXHIBIT 10(d)
MODINE MANUFACTURING COMPANY
1985 INCENTIVE STOCK PLAN
(as amended July 19, 1989)
(as amended July 18, 1990)
(as amended January 15, 1997)
1. PURPOSE. The Modine Manufacturing Company 1985 Incentive
Stock Plan (the "Plan") is intended to provide incentives which
will attract and retain highly competent persons as officers and
key employees of Modine Manufacturing Company (the "Company") and
its majority owned subsidiaries, by providing them with
opportunities to acquire Common Stock of the Company ("Common
Stock") or monetary payments based on the value of such shares
pursuant to the Benefits described herein.
2. ADMINISTRATION. The Board of Directors of the Company
shall supervise and administer the Plan. Any questions of
interpretation of the Plan or of any Benefits issued under it
shall be determined by the Board and such determination shall be
final and binding upon all persons. Any or all powers and
discretion vested in the Board under this Plan (except the power
to amend or terminate the Plan) may be exercised by a committee
of at least two directors (the "Committee") authorized by the
Board to do so. Composition of the Committee is intended to
satisfy the requirements of Rule 16 b-3 of the Securities and
Exchange Act of 1934 (the "Exchange Act") and Section 162(m) of
the Internal Revenue Code. A majority of members of the
Committee shall constitute a quorum, and all determinations of
the Committee shall be made by a majority of its members. Any
determination of the Committee under the Plan may be made without
notice or meeting of the Committee, by a writing signed by a
majority of the Committee members.
3. PARTICIPANTS. Participants will consist of such key
employees (including officers) of the Company or any or all of
its present or future majority owned subsidiaries as the Board of
Directors in its sole discretion determines to be mainly
responsible for the success and future growth and profitability
of the Company and whom the Board of Directors may designate from
time to time to receive Benefits under the Plan. Benefits may be
granted under this Plan to persons who have received options or
other Benefits under this or other plans of the Company.
4. TYPES OF BENEFITS. Benefits under the Plan may be
granted in any one or a combination of (a) Stock Purchase
Agreements; (b) Stock Awards or Bonuses; (c) Stock Options
(incentive stock options and non-qualified stock options with or
without tax offset bonuses and discounted stock options); (d)
Stock Appreciation Rights; (e) Restricted Stock; (f) Performance
Unit Plans; (g) Performance Share Plans; and (h) Book Value Stock
Plans; all as generally described hereinafter and all subject to
such features currently utilized in connection with such Benefits
or as developed hereafter which comply with appropriate Internal
Revenue Service, Securities and Exchange Commission, or other
regulations, and such other terms and conditions all as the Board
of Directors may deem appropriate.
5. SHARES RESERVED UNDER THE PLAN. There is hereby reserved
for issuance under the Plan an aggregate of 2,250,000 shares of
Common Stock (except as supplemented hereinafter provided in
Paragraph 15), $0.625 par value, which may be authorized but
heretofore unissued shares or shares reacquired by the Company,
including shares purchased on the open market. Any shares
subject to the options, rights, agreements, plans, or awards as
described hereinafter or issued under such options, rights,
agreements, plans or awards may thereafter be subject to new
options, rights, agreements, plans or awards under this Plan if
there is a lapse, expiration or termination of any such options,
rights, agreements, plans or awards prior to issuance of the
shares or payment of the equivalent or if shares are issued under
such options, rights, agreements, plans or awards, and thereafter
are reacquired by the Company pursuant to rights reserved by the
Company upon issuance thereof.
6. STOCK PURCHASE AGREEMENTS. Stock Purchase Agreements
will consist of agreements for the present or future sale of
Common Stock by the Company to a participant at such prices and
on such terms and conditions as the Board of Directors deems
appropriate.
7. STOCK AWARDS. Stock Awards will consist of shares of
Common Stock transferred to participants without other payment
therefor as a bonus for service rendered to the Company and its
majority owned subsidiaries.
8. STOCK OPTIONS. Stock Options will consist of options to
purchase shares of Common Stock at purchase prices determined by
the Committee at the date such option is granted. Except
regarding Incentive Stock Options, such option price may be less
than the fair market value of Modine Common Stock on the date of
grant, but in no event shall the option price be less than the
par value of the shares. Such options will be exercisable not
later than ten years after the date they are granted and will
terminate not later than three years after termination of
employment for any reason other than death.
9. STOCK APPRECIATION RIGHTS. Stock Appreciation Rights,
granted in conjunction with a stock option, will consist of
rights to receive an amount equal to the appreciation in fair
market value since the date of grant in lieu of exercising the
corresponding stock option.
10. RESTRICTED STOCK. Restricted Stock will consist of
shares of Common Stock which are transferred to the employee but
which carry restrictions such as a prohibition against
disposition or an option to repurchase in the event of employment
termination, and may be subject to a substantial risk of
forfeiture. Shares of Restricted Stock may be granted to the
employee at no charge, or they may be sold to him. Restrictions
on the shares of stock may lapse over a period of time. As the
restrictions lapse, the employee has unrestricted shares which
he may sell or transfer. If, however, the restrictions are
violated prior to their lapse, those shares still subject to such
restrictions are forfeited by the employee, and must be returned
to the Company.
11. PERFORMANCE UNIT PLANS. A Performance Unit Plan will
provide for units, contingently granted, which entitle the
employee to cash payments or their equivalent in shares of stock
valued at the time of the grant (i.e., the unit value remains
constant and does not fluctuate with changes in the market value
of the stock), if predetermined objectives are met.
12. PERFORMANCE SHARE PLANS. A Performance Share Plan will
provide for artificial shares, contingently granted, which
entitle the employee to actual shares of Common Stock or their
cash equivalent at the time of payment (i.e., the unit value may
appreciate or decline depending on future market value of the
stock), if predetermined objectives are achieved.
13. BOOK VALUE STOCK PLANS. A Book Value Stock Plan will
permit the employee to purchase shares of Common Stock at book
value. Such "book value" stock may be required to be resold to
the Company upon termination of the employment relationship, or
at other specified times at the then-book value of the stock.
14. FORM OF PAYMENT. Payments required, if any, upon a
participant's exercise of Benefits under the Plan may be made in
the form of: (a) cash; (b) Company stock; (c) a combination of
Company stock and cash; or (d) such other forms or means which
the Committee shall determine in its discretion and in such
manner as is consistent with the Plan's purpose and applicable
law.
15. ADJUSTMENT PROVISIONS. If the Company shall at any time
change the number of issued shares of Common Stock without new
consideration to the Company (by stock dividends, stock splits,
or similar transactions), the total number of shares reserved for
issuance under this Plan and the number of shares covered by each
outstanding Benefit shall be adjusted so that the aggregate
consideration payable to the Company, if any, and the value of
each such Benefit shall not be changed. Benefits may also
contain provisions for their continuation or for other equitable
adjustments after changes in the Common Stock resulting from
reorganization, sale, merger, consolidation or similar
occurrences. If the Company acquires an entity which has issued
and outstanding stock options or other rights, the Company may
substitute stock options or rights for options or rights of such
entity, including options or other rights to acquire stock at
less than 100% of the fair market price of the stock at grant.
The number and kind of such stock options and other rights shall
be determined by the Committee and the total number of shares
reserved for issuance under this Plan shall be appropriately
adjusted consistent with such determination and in such manner as
the Committee may deem equitable to prevent substantial dilution
or enlargement of the Benefits granted to, or available for,
present or future participants of this Plan, but in no event
shall the total number of shares reserved for issuance under this
Plan be increased by more than an additional, 20% by reason of
this provision.
16. NONTRANSFERABILITY. Each Benefit granted under the Plan
to an employee shall not be transferable by him otherwise than by
will or the laws of descent and distribution, and shall be
exercisable, during his lifetime, only by him. In the event of
the death of a participant during employment or prior to the
termination of any Benefit held by him hereunder, each Benefit
theretofore granted to him shall be exercisable or payable to the
extent provided therein but not later than one year after his
death (and not beyond the stated duration of the Benefit). Any
such exercise or payment shall be made only:
(a) By or to the executor or administrator of the estate
of the deceased participant or the person or persons to
whom the deceased participant's rights under the Benefit
shall pass by will or the laws of descent and
distribution; and
(b) To the extent, if any, that the deceased participant
was entitled at the date of his death.
17. OTHER PROVISIONS. The award of any Benefit under the
Plan may also be subject to such other provisions (whether or not
applicable to the Benefit awarded to any other participant) as
the Board of Directors determines appropriate, including without
limitation, provisions for the installment purchase of Common
Stock under such Benefits, provisions to assist the participant
in financing the acquisition of Common Stock, provisions for
prepayment at the participant's election of the purchase price of
Common Stock under such Benefits, provisions for the forfeiture
of, or restrictions on resale or other disposition of shares
acquired under such Benefits, provisions giving the Company the
right to repurchase shares acquired under any form of Benefits in
the event the participant elects to dispose of such shares,
provisions to comply with Federal and state securities laws, or
understandings or conditions as to the participant's employment
in addition to those specifically provided for under the Plan.
18. TENURE. A participant's right, if any, to continue to
serve the Company and its subsidiaries as an officer, employee,
or otherwise, shall not be enlarged or otherwise affected by his
designation as a participant under the Plan.
19. DURATION, AMENDMENT AND TERMINATION. No Benefit shall be
granted more than ten years after the date of adoption of this
Plan; provided, however, that the terms and conditions applicable
to any Benefit granted within such period may thereafter be
amended or modified by mutual agreement between the Company and
the participant or such other persons as may then have an
interest therein. Also, by mutual agreement between the Company
and a participant hereunder, or under any future plan of the
Company, Benefits may be granted to such participant in
substitution and exchange for, and in cancellation of, any
Benefits previously granted such participant under this Plan, or
any benefit previously or thereafter granted to him under any
future plan of the Company. The Board of Directors may amend the
Plan from time to time or terminate the Plan at any time.
However, no action authorized by this paragraph shall reduce the
amount of any existing Benefit or change the terms and conditions
thereof without the participant's consent. No amendment of the
Plan shall, without approval of the stockholders of the Company,
(i) increase the total number of shares which may be issued under
the Plan or increase the amount or type of Benefits that may be
granted under the Plan; (ii) change the minimum purchase price,
if any, of shares of Common stock which may be made subject to
Benefits under the Plan; or (iii) modify the requirements as to
eligibility for Benefits under the Plan.
20. SHAREHOLDER APPROVAL. The Plan has been adopted by the
Board of Directors on January 16, 1985, subject to approval by
the shareholders of the Company. Such adoption shall be null and
void if shareholder approval is not obtained within twelve months
of the adoption of the Plan by the Board of Directors.
21. SECTION 16 COMPLIANCE. With respect to persons subject
to Section 16 of the Exchange Act, transactions under this Plan
are intended to comply with all applicable conditions of Rule 16b-
3 or its successors under the Exchange Act. To the extent any
provision of the Plan or action by the Committee fails to so
comply, it shall be deemed null and void, to the extent permitted
by law and deemed advisable by the Committee. In addition, to
the extent a participant (who is also a Reporting Person under
Rule 16b-3 or its successors) engages in an opposite-way
transaction within six months that jeopardizes the exemption, it
shall be deemed null and void.
ms 12/10/96
EXHIBIT 10(i)
EXISTING DIRECTOR EMERITI
DIRECTOR EMERITUS AGREEMENT
This Agreement made and entered into this 19th day
------
of December, 1984 by and between B. H. Regenburg
---------- ------------------------
(hereinafter "DIRECTOR EMERITUS") and MODINE MANUFACTURING
COMPANY (hereinafter "MODINE"), a corporation formed and
existing under the laws of the State of Wisconsin, United
States of America,
WITNESSETH that
WHEREAS, DIRECTOR EMERITUS has served as a Director of
MODINE for a considerable period of time; and
WHEREAS, DIRECTOR EMERITUS has attained such status
pursuant to MODINE By-law 2.12 at the close of the term in
which the DIRECTOR EMERITUS attained the age of seventy (70)
years or has been conferred the status of DIRECTOR EMERITUS
by resolution of the MODINE Board of Directors; and
WHEREAS, compensation for serving as a Director of
MODINE included retirement income in the form of DIRECTOR
EMERITUS compensation (such retirement income being
hereinafter referred to as "DIRECTOR EMERITUS compensation"),
and
WHEREAS, MODINE and DIRECTOR EMERITUS desire to reduce
to writing the understanding between the parties;
NOW THEREFORE, in consideration of the mutual covenants
herein, and other good and valuable consideration the receipt
of which is hereby acknowledged, the parties agree as
follows:
1. MODINE shall pay and DIRECTOR EMERITUS shall
receive DIRECTOR EMERITUS compensation comprised of retainer
fees and monthly meeting fees.
2. The retainer fees shall consist of a payment of
$1,000 dollars per quarter annual period in the months of
- ----------
March, June, September and December.
3. The meeting fees shall consist of a payment of
$500 dollars each on a monthly basis whether or not a
- -------
Board of Directors meeting is held or whether or not DIRECTOR
EMERITUS is in attendance.
4. DIRECTOR EMERITUS shall receive notice of meetings
of the Board of Directors, shall be invited to and welcomed
to all meetings of the Board of Directors and of the
stockholders of MODINE, and shall receive such reimbursement
for reasonable expenses, if any, for attendance at meetings
of the Board of Directors as the Board of Directors shall
determine.
5. The DIRECTOR EMERITUS shall not be entitled to a
vote at the Board of Directors meeting and shall not have any
duties or powers of a Director of MODINE.
6. The term of this Agreement shall commence upon the
date hereof and shall continue until death of the DIRECTOR
EMERITUS. The foregoing notwithstanding, this Agreement shall
immediately terminate and be of no further force or effect
and DIRECTOR EMERITUS shall cease to be a DIRECTOR EMERITUS
if DIRECTOR EMERITUS breaches the provisions of Paragraph 7
of this Agreement.
7. DIRECTOR EMERITUS shall consider meetings of the
Board of Directors of MODINE to be confidential and shall not
disclose the contents thereof to any third party without the
express written consent of MODINE; provided, however, this
covenant shall not pertain to such matters as have been
publicly made available or disclosed by MODINE.
IN WITNESS WHEREOF, the parties have executed this
Agreement in duplicate as of the day and year first above
written.
MODINE MANUFACTURING COMPANY
BY s/E. E. Richter
----------------------------------
PRESIDENT
ATTEST:
s/W. E. Pavlick
- ----------------------
Secretary
s/B. H. Regenburg
---------------------------------------
Director Emeritus (B. H. Regenburg)
EXHIBIT 10(m)
MODINE MANUFACTURING COMPANY
1994 INCENTIVE COMPENSATION PLAN
(as amended January 15, 1997)
1. PURPOSE. The Modine Manufacturing Company 1994 Incentive
Compensation Plan (the "Plan") is intended to provide incentives
which will attract and retain highly competent persons as
officers and key employees of Modine Manufacturing Company (the
"Company") and its majority owned subsidiaries by providing them
with opportunities to acquire Common Stock of the Company
("Common Stock") , receive monetary payments based on the value
of such shares pursuant to the stock-based benefits ("Benefits")
described herein, or receive cash or Common Stock bonuses upon
attainment of specified financial goals of the Company.
2. ADMINISTRATION.
(a) Procedure. The Board of Directors of the Company
---------
shall supervise and administer the Plan. Any questions of
interpretation of the Plan or of any Benefits issued under it
shall be determined by the Board and such determination shall be
final and binding upon all persons.
(b) Committee. Any or all powers and discretion vested
---------
in the Board under this Plan may be exercised by a committee of
at least two directors (the "Committee") authorized by the Board
to do so. Composition of the Committee is intended to satisfy
the requirements of Rule 16 b-3 of the Securities and Exchange
Act of 1934 (the "Exchange Act") and Section 162(m) of the
Internal Revenue Code. A majority of members of the Committee
shall constitute a quorum, and all determinations of the
Committee shall be made by a majority of its members. Any
determination of the Committee under the Plan may be made without
notice or meeting of the Committee, by a writing signed by a
majority of the Committee members.
(c) Powers of the Board. Subject to the provisions of
-------------------
the Plan, the Board shall have the authority, in its discretion:
(i) to grant or award Benefits under the Plan; (ii) to determine,
in accordance with the provisions of the Plan, the fair market
value of the Common Stock; (iii) to determine, in accordance with
the provisions of the Plan, the exercise price per share of
options to be granted; (iv) to determine the employees to whom,
and the time or times at which, options or other Benefits shall
be granted and the number of shares to be represented by each
option or other Benefit; (v) to interpret the Plan; (vi) to
prescribe, amend, and rescind rules and regulations relating to
the Plan; (vii) to determine the terms and provisions of each
option or other Benefit granted or awarded (which need not be
identical) and, with the consent of the holder thereof, modify or
amend each option or other Benefit; (viii) to reduce the exercise
price per share of outstanding and unexercised options; (ix) to
accelerate or defer (with the consent of the optionee) the
exercise date of any option; (x) to authorize any person to
execute on behalf of the Company any instrument required to
effectuate the grant or award of an option or other Benefit; and
(xi) to make all other determinations deemed necessary or
advisable for the administration of the Plan.
(d) Effect of Decisions. All decisions, determinations,
-------------------
and interpretations of the Board, or the Committee, as the case
may be, shall be final and binding on all participants and any
other holders of any Benefits granted or awarded under the Plan.
(e) Section 16 Compliance. With respect to persons
---------------------
subject to Section 16 of the Exchange Act, transactions under this
Plan are intended to comply with all applicable conditions of Rule
16b-3 or its successors under the Exchange Act. To the extent any
provision of the Plan or action by the Committee fails to so comply,
it shall be deemed null and void, to the extent permitted by law and
deemed advisable by the Committee. In addition, to the extent a
participant (who is also a Reporting Person under Rule 16b-3 or its
successors) engages in an opposite-way transaction within six months
that jeopardizes the exemption, it shall be deemed null and void.
3. PARTICIPANTS; GENERAL TERMS AND CONDITIONS.
(a) Employees. Participants will consist of such key employees
---------
(including officers) of the Company or any or all of its present or
future majority owned subsidiaries as the Board of Directors in its sole
discretion determines to be mainly responsible for the success and future
growth and profitability of the Company and whom the Board of Directors
may designate from time to time to receive Benefits under the Plan.
Benefits may be granted under this Plan to persons who have received
options or other Benefits under this or other plans of the Company.
(b) Maximum Number. The maximum number of shares with respect
--------------
to which a Benefit may be granted or awarded to any participant in any
one year of the Company shall not exceed one hundred fifty thousand
(150,000) shares.
(c) General Terms and Conditions. The Committee shall
----------------------------
determine the time or times at which Benefits shall be granted or
awarded, the number of Benefits granted or awarded (subject to
the limitation of this Section 3(b) above), and such other terms
and conditions of the Benefits in addition to those set forth in
this Plan which comply with applicable Internal Revenue Service,
Securities and Exchange Commission, or other laws and
regulations, all as the Committee deems appropriate.
4. BENEFITS.
(a) Types. Benefits under the Plan may be granted in any
-----
one or a combination of:
(1) Stock Purchase Agreements. Stock Purchase
-------------------------
Agreements will consist of agreements for the present or future
sale of Common Stock by the Company to a participant at such
prices and on such terms and conditions as the Board or Committee
deems appropriate.
(2) Stock Awards or Bonuses. Stock Awards or Bonuses
-----------------------
will consist of shares of Common Stock transferred to
participants with or without other payment therefor as a bonus
for services rendered or to be rendered to the Company and its
majority owned subsidiaries.
(3) Stock Options (incentive stock options and
------------------------------------------
non-qualified stock options with or without tax
-----------------------------------------------
offset bonuses and discounted stock options):
--------------------------------------------
(i) Exercise Price. Stock Options will consist
--------------
of options to purchase shares of Common Stock at purchase prices
determined by the Board or Committee at the date such option is
granted. Except regarding Incentive Stock Options, such option
price may be less than the fair market value of Common Stock on
the date of grant, but in no event shall the option price be less
than the par value of the shares. The fair market value shall be
the closing price per share of Common Stock on the National
Association of Securities Dealers Automated Quotation ("NASDAQ")
National Market System on the date of grant. If the Common Stock
ceases to be listed on the NASDAQ National Market System, the
Board or Committee shall designate an alternative method of
determining the fair market value of the Common Stock.
(ii) Term. Such options will be exercisable not
----
later than ten years after the date they are granted and will
terminate not later than three years after termination of
employment for any reason other than death.
(4) Stock Appreciation Rights: Stock Appreciation
-------------------------
Rights, granted in conjunction with a stock option, will consist
of rights to receive an amount equal to the appreciation in fair
market value since the date of grant in lieu of exercising the
corresponding stock option.
(5) Restricted Stock: Restricted Stock will consist
----------------
of shares of Common Stock which are transferred to the
participant but which carry restrictions such as a prohibition
against disposition or an option to repurchase in the event of
employment termination, and may be subject to a substantial risk
of forfeiture. Shares of Restricted Stock may be granted to the
participant at no charge, or they may be sold to the participant.
Restrictions on the shares of stock may lapse over a period of
time. As the restrictions lapse, the participant has
unrestricted shares which then may be sold or transferred. If,
however, the restrictions are violated prior to their lapse,
those shares still subject to such restrictions are forfeited by
the participant, and must be returned to the Company.
(6) Performance Unit Plans: A Performance Unit Plan
----------------------
will provide for units, contingently granted, which entitle the
participant to cash payments or their equivalent in shares of
stock valued at the time of the grant (i.e., the unit value
remains constant and does not fluctuate with changes in the
market value of the stock), if predetermined objectives are met.
(7) Performance Share Plans: A Performance Share
-----------------------
Plan will provide for artificial shares, contingently granted,
which entitle the participant to actual shares of Common Stock or
their cash equivalent at the time of payment (i.e., the unit
value may appreciate or decline depending on future market value
of the stock), if predetermined objectives are achieved.
(8) Book Value Stock Plans: A Book Value Stock Plan
----------------------
will permit the participant to purchase shares of Common Stock at
book value. Such "book value" stock may be required to be resold
to the Company upon termination of the employment relationship,
or at other specified times at the then book value of the stock.
(9) Annual Stock or Cash Incentive Plans. An annual
------------------------------------
Stock or Cash Incentive Plan will allow the participant to
receive, in addition to the participant's base salary, annual
stock or cash bonuses (portions of which may be paid quarterly
over the course of the fiscal year) based upon the financial
performance of the Company. The performance measurement for the
stock or cash bonus will be based on Company pre-tax profit less
fifteen percent of shareholder equity, subject to a formula
determined by the Board or Committee for payout once this
threshold is met. The maximum annual formula award may be fixed
at up to one hundred percent of the participant's base salary
with the Board or Committee designating the percentage level of
participation and maximum bonus for each officer of the Company
while management designates the percentage level of participation
and maximum bonus for other participants. The Board or Committee
will determine whether the bonuses will be payable to
participants in stock or cash or a combination of stock and cash.
(b) Written Agreement. Each grant or award of a Benefit
-----------------
shall be evidenced by an appropriate written agreement, the form
of which shall be consistent with the terms and conditions of the
Plan and applicable law and shall be signed by an officer of the
Company and the participant.
5. SHARES RESERVED UNDER THE PLAN. There is hereby reserved
for issuance under the Plan an aggregate of three million
(3,000,000) shares of Common Stock (except as supplemented
hereinafter provided in Section 8), $0.625 par value, which may
be newly-issued shares, authorized but heretofore unissued shares
or shares reacquired by the Company, including shares purchased
on the open market. Any shares subject to the options, rights,
agreements, plans, or awards as described hereinafter or issued
under such options, rights, agreements, plans, or awards may
thereafter be subject to new options, rights, agreements, plans
or awards under this Plan if there is a lapse, expiration or
termination of any such options, rights, agreements, plans or
awards prior to issuance of the shares or payment of the
equivalent or if shares are issued under such options, rights,
agreements, plans, or awards, and thereafter are reacquired by
the Company pursuant to rights reserved by the Company upon
issuance thereof; provided, however, issued shares reacquired by
the Company may only be subject to new options, rights,
agreements, plans, or awards if the participant received no
benefit of ownership from the shares.
6. FORM OF PAYMENT. Payments required, if any, upon a
participant's exercise of Benefits under the Plan may be made in
the form of: (a) cash; (b) Company stock; (c) a combination of
Company stock and cash; or (d) such other forms or means which
the Committee shall determine in its discretion and in such
manner as is consistent with the Plan's purpose and applicable
Internal Revenue Service, Securities and Exchange Commission, or
other laws or regulations.
7. WITHHOLDING TAXES. No later than the date as of which an
amount first becomes includible in the gross income of the
participant for federal income tax purposes with respect to any
Benefit under the Plan or with respect to any exercise of any
stock option granted under the Plan, the participant shall pay to
the Company, or make arrangements satisfactory to the Company
regarding the payment of, any federal, state, local or foreign
taxes of any kind required by law to be withheld. Such withholding
obligations may be settled with Common Stock, including Common Stock
that is part of the award or that is received upon the exercise of
the stock option that gives rise to the withholding requirement.
The obligations of the Company under the Plan shall be conditional
upon such payment or arrangements, and the Company shall, to the
extent permitted by law, have the right to deduct any such taxes
from any payment otherwise due to the participant. The Company
may establish such procedures as it deems appropriate, including
the making of irrevocable elections or the timing of the use of
Common Stock, for the settlement of its withholding obligations.
8. ADJUSTMENT PROVISIONS.
(a) Changes in Capitalization. If the Company shall at
-------------------------
any time change the number of issued shares of Common Stock
without new consideration to the Company (by stock dividends,
stock splits, or similar transactions), the total number of
shares reserved for issuance under this Plan and the number of
shares covered by each outstanding Benefit shall be adjusted so
that the aggregate consideration payable to the Company, if any,
and the value of each such Benefit shall not be changed.
(b) Reorganization, Sale, etc. Benefits may also contain
-------------------------
provisions for their continuation, acceleration, immediate
vesting, or for other equitable adjustments after changes in the
Common Stock resulting from reorganization, sale, merger,
consolidation, dissolution, liquidation, or similar occurrences.
(1) Substitutions and Assumptions. If the Company
-----------------------------
acquires an entity which has issued and outstanding stock options
or other rights, the Company may substitute stock options or
rights for options or rights of such entity, including options or
other rights to acquire stock at less than 100% of the fair
market price of the stock at grant. The number and kind of such
stock options and other rights shall be determined by the
Committee and the total number of shares reserved for issuance
under this Plan shall be appropriately adjusted consistent with
such determination and in such manner as the Committee may deem
equitable to prevent substantial dilution or enlargement of the
Benefits granted to, or available for, present or future
participants of this Plan. The number of shares reserved for
issuance pursuant to Section 5 may be increased by the
corresponding number of options or other benefits assumed and, in
the case of a substitution, by the net increase in the number of
shares subject to options or other benefits before and after the
substitution.
9. NONTRANSFERABILITY. Benefits (other than non-qualified
stock options) granted under the Plan to an employee shall not
be transferable by the participant otherwise than by will or the
laws of descent and distribution, or pursuant to a qualified
domestic relations order, and shall be exercisable, during the
participant's lifetime, only by the participant; non-qualified
stock options granted under the Plan to a participant may be
assignable or transferable by the participant to or for the
benefit of a member of the participant's family. In the event of
the death of a participant during employment or prior to the
termination of any Benefit held by the participant hereunder,
each Benefit theretofore granted to the participant shall be
exercisable or payable to the extent provided therein but not
later than one year after the participant's death (and not beyond
the stated duration of the Benefit). Any such exercise or
payment shall be made only:
(a) By or to the executor or administrator of the estate
of the deceased participant or the person or persons to whom the
deceased participant's rights under the Benefit shall pass by
will or the laws of descent and distribution; and
(b) To the extent, if any, that the deceased participant
was entitled at the date of the participant's death.
10. OTHER PROVISIONS. The award of any Benefit under the
Plan may also be subject to such other provisions (whether or not
applicable to the Benefit awarded to any other participant) as
the Board or Committee determines appropriate, including without
limitation, provisions for the installment purchase of Common
Stock under such Benefits, provisions to assist the participant
in financing the acquisition of Common Stock, provisions for
prepayment at the participant's election of the purchase price of
Common Stock under such Benefits, provisions for the forfeiture
of, or restrictions on resale or other disposition of shares
acquired under such Benefits, provisions giving the Company the
right to repurchase shares acquired under any form of Benefit in
the event the participant elects to dispose of such shares,
provisions to comply with federal and state tax or securities laws,
or understandings or conditions as to the participant's employment
in addition to those specifically provided for under the Plan or
written agreement.
11. TENURE. A participant's right, if any, to continue to
serve the Company and its subsidiaries as an officer, employee,
or otherwise, shall not be enlarged or otherwise affected by
designation as a participant under the Plan.
12. EMPLOYEES IN FOREIGN COUNTRIES. The Board or Committee
shall have the authority to adopt such modifications, procedures,
and subplans as may be necessary or desirable to comply with
provisions of the laws of foreign countries in which the Company
or its subsidiaries may operate to assure the viability of the
Benefits granted or awarded to employees employed in such
countries and to meet the objectives of the Plan.
13. DURATION, AMENDMENT AND TERMINATION. No Benefit shall be
granted more than ten years after the date of adoption of this Plan;
provided, however, that the terms and conditions applicable to any
Benefit granted within such period may thereafter be amended or
modified by mutual agreement between the Company and the participant
or such other persons as may then have an interest therein. Also, by
mutual agreement between the Company and a participant hereunder, or
under any future plan of the Company, Benefits may be granted to such
participant in substitution and exchange for, and in cancellation of,
any Benefits previously granted such participant under this Plan, or
any benefit previously or thereafter granted to him under any future
plan of the Company. The Board or Committee may amend the Plan from
time to time or terminate the Plan at any time. However, no action
authorized by this paragraph shall reduce the amount of any existing
Benefit or change the terms and conditions thereof without the
participant's consent. No amendment of the Plan shall, without
approval of the stockholders of the Company, (i) increase the total
number of shares which may be issued under the Plan or increase the
amount or type of Benefits that may be granted under the Plan;
(ii) change the minimum purchase price, if any, of shares of Common
stock which may be made subject to Benefits under the Plan; or (iii)
modify the requirements as to eligibility for Benefits under the Plan.
14. UNFUNDED STATUS OF PLAN. It is presently intended that the
Plan constitute an "unfunded" plan for incentive compensation. The
Board or Committee may authorize the creation of trusts or other
arrangements to meet the obligations created under the Plan to deliver
Common Stock or make payments; provided, however, that, unless the Board
or Committee otherwise determines, the existence of such trusts or other
arrangements is consistent with the "unfunded" status of the Plan.
15. SHAREHOLDER APPROVAL. The Plan has been adopted by the Board of
Directors on March 15, 1994, and shall be effective upon approval by the
shareholders of the Company. Such adoption shall be null and void if
shareholder approval is not obtained within twelve months of the adoption
of the Plan by the Board of Directors.
ms 12/10/96
EXHIBIT 10(n)
MODINE MANUFACTURING COMPANY
1994 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(as amended January 15, 1997)
1. PURPOSE. The Modine Manufacturing Company 1994 Stock
Option Plan for Non-Employee Directors (the "Directors' Plan") is
intended to promote the interests of Modine Manufacturing Company
(the "Company") and its stockholders by providing potential
compensation for the non-employee members of the Company's Board
of Directors, thereby assisting the Company in its efforts to
attract and retain well qualified individuals to serve as its
directors. Options granted under the Directors' Plan are
intended to be of a type that does not meet all of the
requirements of Section 422A of the Internal Revenue Code of 1954
as heretofore and hereafter amended, and the Directors' Plan
shall be construed so as to carry out that intention.
2. ADMINISTRATION.
(a) Procedure; Disinterested Directors. The Board will
----------------------------------
administer the Plan; provided, however, that the Board may
appoint a committee (the "Committee") of two (2) or more
directors to administer the Plan if deemed necessary or advisable
in order to comply with the exemptive rules promulgated pursuant
to Section 16(b) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(b) Powers. Grants of Options under the Plan and the
------
amount, price, and timing of the awards to be granted will be
automatic as described in Section 5. However, all questions of
interpretation of the Plan will be determined by the Board or the
Committee, as applicable, and such determination will be final
and binding upon all parties.
(c) Section 16 Compliance. Transactions under this
---------------------
Directors' Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange
Act. To the extent any provision of the Directors' Plan or
action by the Board or Committee fails to so comply, it shall be
deemed null and void, to the extent permitted by law and deemed
advisable by the Board or Committee. In addition, to the extent
a participant (who is also a Reporting Person under Rule 16b-3 or
its successors) engages in an opposite way transaction that
jeopardizes the exemption, it shall be deemed null and void.
3. PARTICIPANTS. Participants shall consist of all present
or future directors of the Company who are not employees of the
Company.
4. SHARES RESERVED UNDER THE DIRECTORS' PLAN. There is
hereby reserved for issuance under the Directors' Plan an
aggregate of five hundred thousand (500,000) shares of Common
Stock, $0.625 par value, which may be newly-issued, authorized
but heretofore unissued shares or shares reacquired by the
Company, including shares purchased on the open market. Any
shares subject to Directors' Stock Options or issued under such
options may thereafter be subject to new options under this
Directors' Plan, if there is a lapse, expiration or termination
of any such options prior to issuance of the shares or if shares
are issued under such options, and thereafter are reacquired by
the Company pursuant to rights reserved by the Company upon
issuance thereof.
5. NUMBER OF SHARES TO BE GRANTED EACH ELIGIBLE DIRECTOR;
EXERCISE.
(a) Automatic Grant. Within thirty (30) days after
---------------
election or re-election to the Board of Directors by the
Company's stockholders, each director so elected or re-elected
shall be automatically granted an option for that number of
shares equal to the multiple of five thousand (5000) and the
number of years in the term to which he has been elected to the
Company's Board of Directors.
(b) Exercise. An option may be exercised in whole at any
--------
time or in part from time to time.
(c) Written Agreement. Each option shall be evidenced by
-----------------
an appropriate written agreement, the form of which shall be
consistent with the terms and conditions of the Directors' Plan
and applicable law, and which shall be signed by one or more
designated members of the Board or Committee and the non-employee
director.
6. OPTION PRICE; TERM. Directors' Stock Options shall
consist of options to purchase shares of Common Stock at purchase
prices not less than 100 percent of the fair market value of the
shares on the date the option is granted. The fair market value
per share shall be the closing price per share of the Common
Stock on the National Association of Securities Dealers Automated
Quotation ("NASDAQ") National Market System on the date of grant.
If the Common Stock ceases to be listed on the NASDAQ National
Market System, the Board shall designate an alternative method of
determining the fair market value of the Common Stock. Such
options will be exercisable not later than ten years after the
date they are granted and will terminate no later than three
years after termination of director status for any reason other
than death.
7. FORM OF PAYMENT. Payments required upon a particular
exercise of Directors' Stock Options under the Directors' Plan
may be made in the form of (a) cash; (b) Company Stock; (c) a
combination of Company Stock and cash; or (d) such other forms or
means which the Board or Committee shall determine at its
discretion and in such manner as is consistent with the
Directors' Plan's purpose and applicable Internal Revenue
Service, Securities Exchange Commission, or other laws or
regulations.
8. WITHHOLDING TAXES. No later than the date as of which an
amount first becomes includible in the gross income of the
Participant for federal income tax purposes with respect to any
exercise of any Stock Option granted under the Plan, the
participant shall pay to the Company, or make arrangements
satisfactory to the Company regarding the payment of, any
federal, state, local or foreign taxes of any kind required by
law to be withheld. Such withholding obligations may be settled
with Common Stock, including Common Stock that is received upon
the exercise of the Stock Option that gives rise to the
withholding requirement. The obligations of the Company under
the Plan shall be conditional upon such payment or arrangements,
and the Company shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment otherwise due to
the participant. The Board or Committee may establish such
procedures as it deems appropriate, including the making of
irrevocable elections or the timing of the use of Common Stock,
for the settlement of its withholding obligations.
9. ADJUSTMENT PROVISIONS.
(a) Changes in Capitalization. If the Company shall at
-------------------------
any time change the number of issued shares of Common Stock
without new consideration to the Company (by stock dividends,
stock splits, or similar transactions), the total number of
shares reserved for issuance under this Directors' Plan and the
number of shares covered by each outstanding Director's Stock
Option shall be adjusted so that the aggregate consideration
payable to the Company, if any, and the value of each such option
shall not be changed.
(b) Reorganizations, sale, etc. Directors' Stock Options
---------------------------
may also contain provisions for their continuation, acceleration,
immediate vesting, or for other equitable adjustments after
changes in the Common Stock resulting from reorganization, sale,
merger, consolidation, dissolution, liquidation, or similar
occurrences.
10. NONTRANSFERABILITY. Each Director's Stock Option granted
under the Directors' Plan to a participant shall not be
transferable by him otherwise than by will or the laws of
descent and distribution, or pursuant to a qualified domestic
relations order, and shall be exercisable, during his lifetime,
only by him. In the event of the death of a participant prior to
termination of any Director's Stock Options held by him
hereunder, each Director's Stock Option theretofore granted to
him shall be exercisable to the extent provided therein but not
later than one year after his death (and not beyond the stated
duration of the Director's Stock Option). Any such exercise
shall be made only:
(a) By the executor or administrator of the estate of the
deceased participant or the person or persons to whom the
deceased participant's rights under the Director's Stock Option
shall pass by will or the laws of descent and distribution; and
(b) To the extent, if any, that the deceased participant
was entitled at the date of his death.
11. OTHER PROVISIONS. The award of any Director's Stock
Option under the Directors' Plan may also be subject to such
other provisions (whether or not applicable to the Director's
Stock Option awarded to any other participant) as the Committee
determines appropriate, including without limitation, provisions
for the installment purchase of Common Stock under Directors'
Stock Options, provisions to assist the participant in financing
the acquisition of Common Stock, provisions for the forfeiture
of, or restriction on resale or other disposition of shares
acquired under Directors' Stock Options, provisions giving the
Company the right to repurchase shares acquired under Directors'
Stock Options in the event the participant elects to dispose of
such shares, provisions to comply with federal and state tax or
securities laws, or understandings or conditions as to the length
of the participant's term as a director in addition to those
specifically provided for under the Directors' Plan.
12. TENURE. A participant's right, if any, to continue to
serve the Company as a director shall not be enlarged or
otherwise affected by his designation as a participant under the
Directors' Plan.
13. TERM; TERMINATION; AMENDMENTS.
(a) Term. No Director's Stock Option shall be granted
----
more than ten years after the date of adoption of this Directors'
Plan; provided, however, that the terms and conditions
applicable to Directors' Stock Options granted within such period
may thereafter be amended or modified by mutual agreement between
the Company and the participant or such other person as may then
have an interest therein. Also, by mutual agreement between the
Company and a participant hereunder, or under any future plan of
the Company, Directors' Stock Options may be granted to such
participant in substitution and exchange for and in cancellation
of, any Directors' Stock Options previously granted such
participant under this Directors' Plan.
(b) Termination. The Plan may be terminated at any time
-----------
by the Board or by the approval by the holders of a majority of
the shares of the Common Stock present, or represented, and
entitled to vote at a meeting held for such purpose.
(c) Amendment. The Plan may be amended by the Board or
---------
Committee; provided however, that (i) no amendment shall be made
that would impair prior grants or rights of a participant without
his consent; (ii) no amendment shall be made more frequently than
once every six months, unless such amendment is required because
of changes in the Internal Revenue Code or the Employee
Retirement Income Security Act; (iii) no such amendment shall be
effective without the approval by the holders of a majority of
the shares of the Common Stock present, or represented, and
entitled to vote at a meeting held for such purpose, if such
amendment would materially (A) increase the benefits accruing to
participants under the Plan, (B) increase the number of
securities which may be issued under the Plan, or (C) modify the
requirements as to eligibility for participation in the Plan; and
(iv) no amendment shall be made which would prevent a
participant's participation in the Plan from being entitled to an
exemption from Section 16(b) of the Act.
14. SHAREHOLDER APPROVAL; EFFECTIVE DATE. The Directors'
Plan has been adopted by the Board of Directors on March 15,
1994, and shall be effective upon approval by the shareholders of
the Company. Such adoption shall be null and void if shareholder
approval is not obtained within 12 months of the adoption of the
Directors' Plan by the Board of Directors.
ms 12/10/96