EXHIBIT 10
AGREEMENT
THIS AGREEMENT made and entered into as of the 16th day
of October, 1996, by and between Modine Manufacturing Company,
a Wisconsin corporation, having its principal place of business
in Racine, Wisconsin (the "Company"), and Xxxxxx X. Xxxxxxx, of
Racine, Wisconsin (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.
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.
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1.01 The Company hereby agrees to continue Executive
in its employ, and Executive hereby agrees to remain in the employ
of the Company for a period of two (2) years, commencing on
October 16, 1996 and ending on October 16, 1998, (the "Period of
Employment"); 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 each
party does not wish to extend the Period of Employment.
II. Position; Duties; Responsibilities.
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2.01 It is contemplated that during the Period of
Employment the Executive shall continue to serve as a
principal officer of the Company with the offices, titles,
reporting responsibilities, duties and responsibilities
including those specifically set forth in Exhibit A attached
to and made a part of this Agreement. At all times during
the Period of Employment Executive shall hold a position of
responsibility and importance with duties and
responsibilities attached thereto, at least equal in scope,
responsibility and importance to and commensurate with the
position described in general terms herein in Exhibit A.
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 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.
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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 $300,000 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 of 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,
that is 80% of the Chairman's incentive payment rate times
the Executive's base salary.
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, the
Restricted Stock 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.
IV. Employee Benefit Plans.
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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, 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, the Pension and
Disability Plan of the Company, 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, 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 through the Period of Employment hereunder.
V. Supplemental Retirement Benefit.
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5.01 Since certain limitations are placed on the
amount of benefits receivable by participants under the
Company's Pension and Disability Plan by the Internal Revenue
Code, and on the amounts contributable to the Company's Salary
Reduction Plan (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 Pension and Disability Plan and the 401(k) Plan.
VI. Effect of Death or Disability.
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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.
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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.
(a) The term "Average Annual Earnings"
shall mean the arithmetic average of the Executive's annual
compensation includable in the Executive's gross income in
the five taxable year period preceding the taxable year of
termination.
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 offices
described in paragraph 2.01 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 thirty (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 of
Control of the Company, as defined in Section XIV 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 thirty (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 clause (i), (ii), and (iii) 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.
(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
(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.
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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.
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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 anytime 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.
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10.01 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.
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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 his 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.
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12.01 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.
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13.01 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.
XIV. Change in Control.
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14.01 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 (35%) 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 (24) 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.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement this 25th day of Oct. , 1996.
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MODINE MANUFACTURING COMPANY
BY: X. X. XXXXXX
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Chairman of the Board and
Chief Executive Officer
(SEAL)
Attest:
W. E. XXXXXXX
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Secretary
X. X. XXXXXXX
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Executive
EXHIBIT A
Title
President The President shall be the Chief Operating
Officer of the Company and, subject of the
control of the Board of Directors and the
Chairman of the Board and Chief Executive
officer, shall supervise and control the
operations of the Company. In the absence
of the CEO or in the event of his death,
inability or refusal to act, or in the event
for any reason it shall be impracticable for
the CEO to act personally, the President shall
perform the duties of the CEO, and when so
acting, shall have all the powers of and be
subject to all the restrictions upon the CEO.
