AGREEMENT
Exhibit
10.1
AGREEMENT
THIS
AGREEMENT made and entered into as of the ___ day of ______, 2005, by and
between Modine Manufacturing Company, a Wisconsin corporation, having its
principal place of business in Racine, Wisconsin (the “Company”), and
____________ of __________________ (the “Executive”).
WHEREAS,
the Company desires to engage the Executive and Executive is desirous of
committing himself to serve the Company for the period and on the terms herein
provided.
WHEREAS,
on the date hereof, the Company and Executive have entered into a Change in
Control and Termination Agreement (the “Change in Control
Agreement”).
NOW,
THEREFORE, in consideration of the foregoing and the respective covenants and
agreements of the parties herein contained, the parties hereto agree as
follows:
I. Employment;
Period of Employment.
The
period of employment shall be the period beginning on the date hereof and
terminating on the date 36 months after such date (the "Term"), provided that
for each day from and after the date hereof the Term will automatically be
extended for an additional day, unless either Employer or Executive has given
written notice to the other party of its or his election to cease such automatic
extension, in which case the Term shall be the 36-month period beginning on the
date such notice is received by such other party.
|
II. |
Position,
Duties; Responsibilities. |
2.01 It is
contemplated that during the Period of Employment, the Executive shall continue
to serve as a principal officer of the Company; currently __________________. At
all times during the Period of Employment, Executive shall hold a position of
responsibility and importance with duties and responsibilities at least equal in
scope, responsibility and importance to and commensurate with the position of
______________.
2.02 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. The office of the Executive shall be
located at the principal offices 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.
III. Compensation;
Compensation Plans; Perquisites.
3.01 (a) For all
services rendered by the Executive during the Period of Employment, Executive
shall be paid as compensation:
(i) A base
salary (the Minimum Base Salary), payable not less often than monthly, of no
less than $________ per year, with such increases in such rate as shall be
awarded from time to time in accordance with the Company's regular
administrative practices or other salary increases applicable to Executives of
the Company in effect on the date of this Agreement; 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.
3.02 During
the Period of Employment the Executive shall be and continue to be a full
participant in the Modine Manufacturing Company 2002 Incentive Compensation Plan
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,
stock appreciation right plans, restricted stock 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 participate in the
executive perquisites of the Company as determined by the Board of Directors for
key employees, including without limitation, an office, secretarial and clerical
services, paid annual Mayo Clinic Visits and income tax and estate planning
services.
| III. |
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 current disability plans of the
Company, 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 under the terms of employee plans and practices of the Company,
including, without limitation, 401(k) plan, death benefit plans (consisting of
its Group Insurance Plan for Management Employees providing term life 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,
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.
| 3.02 |
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 through the
Period of Employment hereunder.
V. Supplemental
Retirement Benefit.
Since
certain limitations are placed on the amount of benefits receivable by
participants under the Company's disability plan by the Internal Revenue Code,
and on the amounts contributable to the Company's 401(k) Plan under Article 5 of
such plan, the Company shall provide the Executive and his beneficiaries with
benefits equal to the benefits lost under those plans as a result of these
limitations. Payments of such supplemental retirement benefits shall be made to
the Executive or his beneficiaries in a manner consistent with the elections
available under the plans providing such benefits.
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 occurred.
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 for a period of twelve (12) months to the benefits
provided for in paragraph 3.01(a)(i) and 3.01(a)(ii) above, at the rate being
paid at the time of the commencement of Disability. 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. These disability payments are to continue to be paid to the Executive
until the end of the Period of Employment. This shall not preclude the Executive
from receiving disability benefits after the Period of Employment under the
Company's group long-term disability plan.
| VII. |
Termination. |
7.01 The
Company may at its option terminate this Agreement at any time during the term
hereof, with or without cause. 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 in this Section VII in the event of such a Termination are in
addition to any such items provided by Section V.
7.02 In the
event of a Termination, the Company shall, as liquidated damages, severance pay,
and payment for services rendered in the past, pay to the Executive an amount
equal to the Average Annual Earnings of the Executive during the remainder of
the Period of Employment. During the period that payments provided in this
paragraph 7.02 are required, the Executive, his dependents and beneficiaries
shall continue to be entitled to all benefits under employee benefit plans of
the Company as if Executive was still employed and the period in which such
payments are provided shall be continued service with the Company for the
purpose of continued credits under the employee benefits plans and 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; provided, however, if continued participation in any one or more
of such plans is not possible under the terms thereof, the Company shall provide
substantially identical benefits.
(a) The term
"Average Annual Earnings" shall mean the sum of Executive’s Five-Year Average
Base Salary and his Five-Year Average Actual Bonus. For purposes of this
subsection, “Five-Year Average Base Salary” shall mean the average of
Executive’s per annum base salary payable for the five-year period ending on the
last day of the Company’s fiscal year immediately preceding the fiscal year of
Executive’s Termination; provided, however, if Executive had not been employed
for the entire five-year period, “Five-Year Average Base Salary” shall mean the
average of Executive’s per annum base salary payable over his actual period of
employment. For purposes of this subsection, “Five-Year Average Actual Bonus”
shall mean the average of Executive’s actual annual bonuses payable under the
Company’s Management Incentive Plan, or such equivalent successor plan as may be
adopted by the Company, for the five-year period ending on the last day of the
Company’s fiscal year immediately preceding the fiscal year
of
Executive’s Termination; provided, however, if Executive had not been employed
for the entire five-year period, “Five-Year Average Actual Bonus” shall mean the
average of Executive’s actual annual bonuses payable over his actual period of
employment.
7.03 The word
"Termination" 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 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, or removal of the Executive from,
the office described in paragraph 2.01 above;
(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 of this
Agreement, or a reduction in compensation, which is not remedied within thirty
(30) days after receipt by the Company of written notice from the
Executive;
(iii) A
breach by the Company of any provision of this Agreement not embraced within the
foregoing clause (i) and (ii) of this subparagraph 7.03(b) which is not remedied
within thirty (30) days after receipt by the Company of written notice from the
Executive; and
(iv) 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 (40) and not more than
ninety (90) 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 (30) 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.
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
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
9.02 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 binding arbitration within the Racine, Wisconsin, area or other
mutually agreeable area under the rules of the American Arbitration Association,
or to institute a judicial proceeding; all costs of such arbitration or judicial
proceeding including all attorney fees, are to be borne by the Company if the
Executive prevails.
VIII.
No
Obligation to Mitigate Damages.
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 any way 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, 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, devises, 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 (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 or provide any benefits
required under this Agreement 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.
(b) The word
“Competition” for the purposes of this paragraph 9.02 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 9.02, (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 any time during the term of this Agreement on behalf of a business
described in clause (i) of this subparagraph 9.02(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
9.02(b).
X. 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 thereof 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.
| XI. |
General
Provisions. |
11.01 There
shall be no right of setoff 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.
11.02 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.
11.03 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.
11.04 (a) No right,
benefit or interest hereunder, shall be subject to anticipation, alienation,
sale, assignment, encumbrance, charge, pledge, hypothecation, or setoff 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) Except as
herein provided, 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. 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.
11.05 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.
11.06 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 this beneficiary
or beneficiaries.
11.07 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,
including, without limitation, any corporate 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 successors shall thereafter
be deemed embraced with the term “the Company” for the purposes of this
Agreement).
11.08 The
validity, interpretation, construction, performance and enforcement of this
Agreement shall be governed by the laws of the State of Wisconsin.
XII. Amendment
or Modification.
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.
XIII.
Severability.
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.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement this ____ day
of __________, 2005.
BY:__________________________
Xxxxx X.
Xxxxxxx
President
& Chief Executive Officer
EXECUTIVE
_____________________________
(SEAL)
Attest:
_________________________
Secretary
