September 18, 2007
Exhibit
10.1
September
18, 2007
Xx.
Xxxxxxx X. Xxxxxxx
000
Xxxxxxxx Xxxxx
Xxxxxx,
XX 00000
Dear
Xxxxx:
In
accordance with all the provisions
set forth below, this letter, when signed by you, will be a binding agreement
documenting the terms and conditions with regard to your employment status
with
Modine Manufacturing Company (“Modine” or the “Company”) and your retirement
from employment with the Company.
For
your
information, an outline of the details set forth below has been reviewed with
and approved by the Chair of the Company’s Officer Nomination and Compensation
Committee.
1. Retirement
from the Company. You hereby agree to
retire from employment with the Company on December 31, 2007. Your
last day of active employment with the Company will be October 12,
2007. For the period from October 13, 2007 until December 31, 2007,
you will use any earned vacation available to you and, after the vacation is
exhausted, you will be considered on a paid leave of absence at your current
salary level until December 31, 2007.
2. Compensation. On
condition that on or within seven days of October 12, 2007 and December 31,
2007, you sign, date and return to me the Release attached hereto as
Attachment A (the “Release”) and you do not revoke the signed Release,
you will receive the following from the Company:
Severance. For
the period from December 31, 2007 until October 12, 2008, the Company shall
pay
you bi-weekly an amount equivalent to your current bi-weekly
salary. All legally required taxes will be deducted from the above
sums. It is expressly agreed that all payments as described above are
being allocated for purposes of unemployment compensation to each of the
applicable pay periods.
Bonus. If
a bonus is
paid pursuant to the Company’s Management Incentive Plan (“MIP”) for the
Company’s performance for the fiscal year ended March 31, 2008, you will receive
a MIP bonus based upon actual salary paid to you between April 1, 2007 and
October 12, 2007.
Health
and Dental
Insurance. Participation in the Company’s health and dental
insurance plans ceases on December 31, 2007. Under current federal
COBRA legislation, you may elect to continue medical and dental insurance at
specified group rates for up to 18 months’ duration. The Company will
pay your COBRA premiums for medical and dental coverage until April 1,
2009. When you elect to receive your benefits under the Pension Plan
(as defined below), you will be eligible to receive retiree medical benefits
from the Company and your COBRA benefit will conclude.
Modine
Stock Options and Restricted
Stock Awards. You may continue to exercise, at your discretion,
stock options granted to you under the 1994 and 2002 Incentive Compensation
Plans (the “Incentive Plans”) in accordance with the terms of the Incentive
Plans and the stock option agreements to which you are a
party. Any qualified stock options granted to you must be
exercised within 90 days of December 31, 2007 in order to be considered
incentive stock options; thereafter, stock options will be treated as
non-qualified stock options.
With
respect to outstanding grants of restricted stock awards made to you under
the
Incentive Plans, any restricted stock awards scheduled to vest after December
31, 2007 shall vest immediately upon your retirement on December 31,
2007. Performance stock awards available to you under the Incentive
Plans and any successor plans, if any, will vest on a pro-rata basis at the
end
of the applicable performance periods.
Executive
Physical. You are eligible and covered for one additional medical
exam at Mayo Clinic in Rochester, MN or Froedtert/Medical College of Wisconsin,
at your election, under the Company’s executive medical program between the date
hereof and December 31, 2008 which you shall schedule through the Company’s
normal process for such exams.
Financial
and Tax
Planning. The Company will continue to pay for reasonable
financial planning and tax preparation services until March 31,
2009.
If
you die prior to receiving all of
the payments referred to in this paragraph 2, any unpaid payments will be made
to your estate.
3. 401(k),
Deferred Compensation, Pension Plan and Other
Benefits. Your rights and benefits under
the Modine 401(k) Retirement Savings Plan for Salaried Employees, the Modine
Deferred Compensation Plan and the Modine Non-Union Hourly and Salaried Employee
Pension Plan (the “Pension Plan”) are governed by the provisions of those
plans. Your salary continuation (short-term disability), life
insurance and long-term disability benefits will continue until December 31,
2007 in accordance with the applicable plans.
You
acknowledge that those rights and benefits have been explained to
you.
4. Employment
Reference. If asked by a prospective
employer for a reference, you will be provided with a favorable reference
substantially consistent with the information upon which we mutually
agree.
5. No
Admission. You agree that neither the
execution of this agreement nor the furnishing of the described benefits to
you
will be deemed or construed as an admission by the Company of any liability
or
any unlawful conduct of any kind.
6. Benefits
Agreed To. You understand and agree that
you would not receive all of the benefits provided in paragraph 2 except for
your execution of this agreement and the fulfillment of the promises contained
herein.
7. No
Authority; Indemnification. You will
have no regular duties as a Modine employee after October 12, 2007 and,
therefore, no authority on behalf of or to bind the Company. You
agree to hold the Company and its subsidiaries and affiliates harmless from
any
acts you make in contravention of this paragraph 7. You agree to
resign your position as Regional Vice President - Americas and any other
positions you may hold with any of the Company’s subsidiaries, affiliates or
plans as of October 12, 2007.
In
the
event that, during the year following your retirement you are requested by
or on
behalf of the Company or ordered to appear as a witness in litigation regarding
matters or actions you took within the scope of your authority while an employee
of the Company, the Company will indemnify you for all out-of-pocket necessary
and reasonable expenses in connection with preparation, appearance,
consultations and any other activity directly related to litigation involving
the Company, including necessary and reasonable legal expenses, provided that
(a) you advise the Company immediately and obtain the approval of the Company
prior to the commitment to any such expenses, (b) you cooperate fully with
the
Company in connection therewith, upon reasonable notice to you and subject
to
your reasonable availability, and (c) the Company has the right to assume the
defense of any such action and discharge its obligation by holding you harmless
from any judgment or settlement it may make. In the event such
assistance is requested or required after the one year anniversary of your
retirement, the Company agrees to compensate you for your time and expenses
at a
rate reasonable for such consultation services.
If
a
court of competent jurisdiction ultimately determines that the above-described
litigation resulted from matters or actions taken by you that exceeded the
scope
of your authority or were criminal in nature while you were an employee of
Modine, you agree to reimburse Modine for any legal and/or other expenses paid
by Modine on your behalf.
8. Non-Disclosure
Obligation. Consistent with your obligations as an employee
of the Company and in further consideration of the payments and other benefits
being provided in accordance with paragraph 2, you agree not to disclose to
anyone outside the Company any confidential information pertaining to the
Company’s business. Such confidential information not to be disclosed
includes, but is not necessarily limited to, information, statistics, lists,
and
records concerning customers or vendors, finances, marketing, employees,
research and development, and business planning and development as well as
trade
secrets and technical knowledge concerning the Company’s business and
products. You further represent that any papers, letters, records,
files, computer disks, and other documents or materials containing such
confidential information or belonging to the Company that you have had in your
possession have been or will be returned to the Company on or before October
12,
2007.
You
agree not to disclose the contents
of this letter except to your attorney, tax preparer, immediate family, or
as
otherwise may be required by law.
9. Non-Competition. From
the date of your retirement until one year following your
retirement, you agree that you will not, directly or indirectly,
individually or otherwise, manage, operate, join, control, participate in the
ownership, management, operation, or control of, or be employed by or consultant
or advisor to, or in any way in connection with, any person, corporation, firm,
partnership, or other entity whatsoever that is engaged in North America in
any
business or activity related to the manufacture or selling of heat transfer
products to on-highway or off-highway vehicle original equipment
manufacturers.
You
agree that you are fully aware of
the restrictions that this paragraph 9 places on your future employment with
someone other than the Company. However, you understand and agree
that your previous positions with the Company and your access to confidential
information make these restrictions both necessary and
reasonable. You acknowledge and agree that the restrictions
constitute reasonable protections of the legitimate business interests of the
Company and that they will not unduly restrict your opportunities for future
employment.
10. Nonsolicitation. From
the date hereof until one year following your retirement, you further agree
that
you will not, directly or indirectly, hire away or participate or assist in
the
hiring away of any person employed by or acting as a representative or agent
of
the Company on or within the six months prior to December 31, 2007.
11. Nondisparagement. You
also agree that from the date hereof you shall not, directly or indirectly,
make
or cause to be made any disparaging, derogatory, misleading or false statement,
whether orally or in writing, to any person or entity, including members of
the
investment community, press, customers, competitors and advisors to the Company,
about the Company and its directors, officers or employees, or the business
strategy, plans, policies, practices or operations of the
Company. The Company shall instruct the directors and board elected
officers of the Company not to, directly or indirectly, make or cause to be
made
any disparaging, derogatory, misleading or false statement, orally or in
writing, to any person or entity about you. Notwithstanding the
foregoing, the Company and you may each confer in confidence with its own
respective legal counsel and nothing herein shall prevent either party from
responding truthfully to any information requests or questions posed in any
formal or informal legal, regulatory, administrative or investigative
proceedings involving any court, tribunal or governmental body or agency or
otherwise as required by law.
12. Legal
Consultation and Timing of Execution of
Agreement. You are encouraged to
consult an attorney before you sign this agreement and the Release.
You
have
at least 21 days after being given this agreement and the Release during which
you may consider whether or not to sign them. Further, you have seven
days following your signing of this agreement and the Release during which
you
may revoke them. Therefore, neither this agreement nor the Release
shall be effective or enforceable until such revocation period has
expired.
13. Voluntary
Act. You acknowledge that you are
signing this agreement and the Release as your free and voluntary act after
having had the opportunity to consider all alternatives and to discuss the
arrangements agreed upon as set forth above with your own attorney and any
other
advisors of your choice.
14. Governing
Law. This agreement is made in the State
of Wisconsin and shall be interpreted under the laws of the State of
Wisconsin. The provisions of this agreement are severable and
independent, and if any provision of this agreement is found to be illegal
or
unenforceable for any reason, such provision will immediately become null and
void, leaving the remainder of this agreement in full force and
effect.
15. Entire
Agreement. This agreement and the Release represent the
entire understanding and agreement between the parties with respect to the
subject matter thereof and supersede all prior communications, agreements,
and
understandings relating to the subject matter hereof and this agreement
expressly supersedes the Change in Control Agreement between you and the Company
dated May 28, 1999.
16. Binding
Agreement. This agreement will be
binding upon and inure to the benefit of the parties, their respective heirs,
representatives, successors, and assigns and the affiliates and subsidiaries
of
the Company.
Assuming
this agreement fully and
accurately sets forth the arrangements that have been discussed and agreed
upon,
please sign both copies and return one copy to me.
Sincerely,
/s/
Xxxxxxx X. Xxxx
Xxxxxxx
X. Xxxx
Vice
President & Chief Human Resources Officer
*
* * *
*
By
signing this agreement, I state that:
I
have
read it;
I
understand it and know I am giving up important rights;
I
agree
with everything in it;
I
am
aware of my right to consult an attorney and that I may take up to 21 days
to
sign this agreement;
I
am
aware that I may revoke this agreement within seven days after signing it;
and
I
have
signed it knowingly and voluntarily.
/s/
X.
X.
Xxxxxxx October
5, 2007
Xxxxxxx
X.
Xxxxxxx Date
Signed
Attachment
A
RELEASE
1. General
Release of Claims.
I
hereby
release Modine from, and covenant not to xxx Xxxxxx with respect to, any and
all
claims I have or may have against Modine.
2. Claims
to Which Release Applies.
This
release applies both to claims that are now known or are later
discovered. However, this release does not apply to any claims
that may arise after the date I execute this release. This release
does not apply to any claims that may not be released under applicable
law. Nothing in this release prevents me from communicating with any
government agency regarding matters that are within the agency’s
jurisdiction.
3. Claims
Released Include Age Discrimination and Employment Claims.
The
claims released include, but are not limited to, (1) claims arising under the
Age Discrimination in Employment Act, as amended (29 U.S.C. Section 621 et
seq.), (2) claims arising out of or relating in any way to my employment with
Modine or the conclusion of that employment and (3) claims arising under any
other federal, state or local law, regulation, ordinance or order that regulates
the employment relationship and/or employee benefits.
4. Release
Covers Claims Against Related Parties.
For
purposes of this release the term “Modine” includes Modine Manufacturing Company
and any of its present, former and future owners, parents, affiliates and
subsidiaries, and its and their directors, officers, shareholders, employees,
agents, servants, representatives, predecessors, successors and
assigns. Therefore, the claims released include claims I have against
any such persons or entities.
5. The
Terms “Claims” and “Release” are Construed Broadly.
As
used
in this release, the term “claims” shall be construed broadly and shall be read
to include, for example, the terms “rights”, “causes of action (whether arising
in law or equity)”, “damages”, “demands”, “obligations”, “grievances” and
“liabilities” of any kind or character. Similarly, the term “release”
shall be construed broadly and shall be read to include, for example, the terms
“discharge” and “waive”. Nothing in this release is a waiver of my
right to file any charge or complaint with administrative agencies such as
the
United States Equal Employment Opportunity Commission which, as a matter of
law,
I cannot be prohibited from or punished for filing (an “Excepted
Charge”). Modine’s acknowledgment of this exception does not limit
the scope of the waiver and release in Paragraphs 2 – 6 of this release and I
waive any right to recover damages or obtain individual relief that might
otherwise result from the filing of any Excepted Charge.
6. Release
Binding on Employee and Related Parties.
This
release shall be binding upon me and my agents, attorneys, personal
representatives, executors, administrators, heirs, beneficiaries, successors
and
assigns.
7. Additional
Consideration.
I
have executed this release in
consideration of the benefits described in Modine’s letter to me dated September
18th, 2007 (the “Letter”). I acknowledge that these benefits
represent consideration in addition to anything of value that I am otherwise
entitled to receive from Modine. The benefits described in the Letter
are sufficient to support this release.
8. Representations.
In
connection with my decision to provide this release I acknowledge that I have
not relied on any verbal or written representations by Modine other than those
explicitly set forth in the Letter and this release itself.
9. Opportunity
to Consider this Release; Consultation with Attorney.
I
have
read this release and fully understand its terms. I have been offered
21 days to consider its terms. I have been (and am again hereby)
advised in writing to consult with an attorney before signing this
release.
10. Voluntary
Agreement.
I
have
entered into this release knowingly and voluntarily and understand that its
terms are binding on me.
11. Partial
Invalidity of Release.
If
any
part of this release is held to be unenforceable, invalid or void, then the
balance of this release shall nonetheless remain in full force and effect to
the
extent permitted by law.
12. Headings.
The
headings and subheadings in this release are inserted for convenience and
reference only and are not to be used in construing this release.
13. Applicable
Law.
Wisconsin
law will apply in connection with any dispute or proceeding concerning this
release.
|
14.
|
Suit
in Violation of this Release - Loss of Benefits and Payment of
Costs.
|
If
I
bring an action against Modine in violation of this release or if I bring an
action asking that this release be declared invalid or unenforceable, I agree
that prior to the commencement of such an action I will tender back to Modine
all payments that I have received as consideration for this
release. If my action is unsuccessful, I further agree that I will
pay all costs, expenses and reasonable attorneys’ fees incurred by Modine in its
successful defense against the action. I acknowledge and understand
that all remaining benefits to be provided to me as consideration for this
release will permanently cease as of the date such action is
instituted. However, the previous three sentences shall not be
applicable if I bring an action challenging the validity of this release under
the Age Discrimination in Employment Act (which I may do without penalty under
this release).
15. Preservation
of Rights under Benefit Plans and Indemnities.
This
release shall not adversely affect my rights to receive any benefit that I
am
otherwise entitled to receive under any of Modine’s qualified and nonqualified
benefit plans, or my rights to indemnification under Modine’s officers and
directors’ insurance coverage, Modine’s Articles of Incorporation or Bylaws or
any indemnity agreement between Modine and me.
16. Seven
Day Revocation Period.
I
understand that I have a period of seven calendar days following the date I
deliver a signed copy of this release to Modine Manufacturing Company, Attn:
Xxxxxxx X. Xxxx,1500 XxXxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000 to revoke this
release by giving written notice to that person. This release and my
entitlement to severance pay described in the Letter will be binding and
effective upon the expiration of this seven day period if I do not revoke,
but
not before.
EXECUTED
THIS ___ DAY OF __________, 200__.
____________________________________
[Name]
