Registration No. 3-
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Modine Manufacturing Company
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(Exact Name of Issuer as specified in its charter)
Wisconsin 39-0482000
- --------------------------------- -----------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1500 DeKoven Avenue, Racine, Wisconsin 53403
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(Address of Principal Executive Offices) (Zip Code)
Modine Deferred Compensation Plan
---------------------------------
(Full title of the plan)
W. E. Pavlick, Secretary, 1500 DeKoven Avenue, Racine, WI 53403
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(Name and address of agent for service)
(414) 636-1200
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Unit Price Fee
Common Stock
($0.625 Par 25,000
Value)(1) shares $34.00 (2)(3) $850,000.00(2)(3) $250.75
- -----------------------------------------------------------------------------
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Plan described herein.
(2) Pursuant to Rule 457(h)(2), no filing fee is required with respect
to the participation in the Plan registered hereunder.
(3) Pursuant to Rule 457(c) the "Proposed Maximum Offering Price Per Share"
and "Proposed Maximum Aggregate Offering Price" are based upon $34.00
per share, the closing price at which such stock was sold on January 19,
1999.
An Exhibit Index appears on Pages 9 to 10 herein.
Page 1 of 10
<PAGE>
PART I
THE COMPANY
Modine Manufacturing Company, a Wisconsin corporation,
maintains its principal offices at 1500 DeKoven Avenue, Racine,
Wisconsin 53403, telephone no. (414) 636-1200.
MODINE DEFERRED
COMPENSATION PLAN
This registration statement pertains to 25,000 shares of the
Common stock, $.625 par value, of Modine Manufacturing Company
pursuant to the Modine Deferred Compensation Plan (the "Plan").
The Plan supplements the Company's 401(k) Plan and was
established to fall within the meaning of Sections 201(2),
301(a)(3), and 401(a)(1) of ERISA. Eligibility is limited to a
select group of management or highly-compensated employees
participating in the 401(k) Plan whom contributions from and on
the participants' behalf are limited by Sections 401(a)(17),
402(g), 415 and/or 416 of the Internal Revenue Code. Eligible
employees may participate in this Plan by electing such
participation before the beginning of the period of service for
which compensation is payable. Contributions are payable to the
accounts of eligible participants in the 401(k) Plan as if the
limitations in Code Sections 401(a)(17), 402(g), 415 and 416 were
not applied. The Plan is effective as of March 1, 1999.
This Registration Statement applies to newly issued shares
and treasury Common Shares of the Company registered for purchase
under the Plan. Purchases by the Plan of Common Stock may be
from the Company or from the open market.
Documents containing the information specified in Part I of
Form S-8 will be sent or given to employees eligible to
participate in the Plan by the Company as specified by Rule
428(b)(1), 17 C.F.R. Section 230.428(b)(1).
PART II
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents and all documents subsequently filed
by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then
remaining unsold, are hereby incorporated by reference from the
date of filing of such documents:
1. The Company's 1997-98 Annual Report on Form 10-K.
2. The Company's Definitive Proxy Statement for the
1998 Annual Meeting of Stockholders.
<PAGE>
3. The Auditor's Consent to incorporate the Company's
financial reports contained in the Annual Report on
Form 10-K; and
4. The Company's second Quarter Report on Form 10-Q
for the quarter ended September 26, 1998.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
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None.
Item 6. Indemnification of Directors and Officers.
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Certain provisions of the Wisconsin Business Corporation
Law, Chapter 180 of the Wisconsin Statutes ("WBCL"), provide that
the Company will indemnify the directors and officers of the
Company and of each subsidiary company against liabilities and
expenses incurred by such person by reason of the fact that such
person was serving in such capacity, subject to certain
limitations and conditions set forth in the WBCL. The Company's
By-Laws also provide that the Company will indemnify its
directors and officers, and they indemnify any person serving as
a director or officer of another business entity at the Company's
request, to the extent permitted by the WBCL.
It is the public policy of the State of Wisconsin, expressed
in Section 180.0859 of the WBCL, to require or permit
indemnification and allowance of expenses for any liability
incurred in connection with a proceeding involving federal or
state statutory or administrative regulation of the offer, sale
of purchase of securities, provided the applicable requirements
for indemnification and allowance of expenses are satisfied.
The Company has purchased liability insurance policies which
indemnify the Company's directors and officers against loss
arising from claims by reason of their legal liability for acts
of such directors or officers, subject to limitations and
conditions as set forth in the policies.
Item 7. Exemption from Registration Claimed Not Applicable.
--------------------------------------------------
Not applicable.
Item 8. Exhibits.
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4(a) Rights Agreement dated as of
October 16, 1986 between the
Registrant and First Chicago Trust
Company of New York (Rights Agent)
(filed by reference to the Registrant's
<PAGE>
Annual Report on Form 10-K for the
fiscal year ended March 31, 199).
4(b)(i) Rights Agreement Amendment
No. 1 dated as of January 18, 1995
between the Registrant and First
Chicago Trust Company of New York
(Rights Agent) (filed by reference to
the exhibit contained within the
Registrant's Current Report on Form
8-K dated January 13, 1995).
4(b)(ii) Rights Agreement Amendment No. 2
dated as of January 18, 1995 between
the Registrant and First Chicago
Trust Company of New York (Rights
Agent) (filed by reference to the
exhibit contained within the
Registrant's Current Report on Form
8-K dated January 13, 1995).
4(b)(iii) Rights Agreement Amendment
No. 3 dated as of October 15, 1996
between the Registrant and First
Chicago Trust Company of New York
(Rights Agent) (filed by reference to
the exhibit contained within the
Registrant's Quarterly Report on Form
10-Q dated December 26, 1996).
4(b)(iv) Rights Agreement Amendment
No. 4 dated as of November 10, 1997
between the Registrant and Norwest
Bank Minnesota, N.A., (Rights Agent)
(filed by reference to the exhibit
contained within the Registrant's
Quarterly Report on Form 10-Q dated
December 26, 1997).
*5(a) Opinion regarding legality of
original issuance securities provided
by von Briesen, Purtell & Roper, S.C.
15 Not Applicable.
*23(a) Consent of Independent Auditors,
provided by PricewaterhouseCoopers,
LLP.
*23(b) Consent of Counsel (included in
Exhibit 5(a)).
24 Not Applicable.
27 Not Applicable.
*99(a) Modine Deferred Compensation Plan,
Deferred Compensation Agreement, and
Trust Agreement
<PAGE>
*99(b) Important Factors and Assumptions
Regarding Forwarding-Looking
Statements.
* Filed herewith
Item 9. Undertakings.
------------
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in the
registration statement; and
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
<PAGE>
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Racine, State of Wisconsin, on the 20th day of January, 1999.
MODINE MANUFACTURING COMPANY
By: D. R. JOHNSON
-----------------------------
D. R. Johnson, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following
persons in the capacities and on the date indicated.
D. R. JOHNSON January 20, 1999
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D. R. Johnson, President and Date
Chief Executive Officer and
Director
R. T. SAVAGE January 20, 1999
- ------------------------------- ----------------
R. T. Savage, Chairman of the Date
Board and Director
A. D. REID January 20, 1999
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A. D. Reid, Vice President and Date
Chief Financial Officer
W. E. PAVLICK January 20, 1999
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W. E. Pavlick, Senior Vice Date
President, General Counsel
& Secretary
R. J. DOYLE January 20, 1999
- ------------------------------- ----------------
R. J. Doyle, Director Date
F. W. JONES January 20, 1999
- ------------------------------- ----------------
F. W. Jones, Director Date
D. J. KUESTER January 20, 1999
- ------------------------------- ----------------
D. J. Kuester, Director Date
G. L. NEALE January 20, 1999
- ------------------------------- ----------------
G. L. Neale, Director Date
<PAGE>
S. W. TISDALE January 20, 1999
- ------------------------------- ----------------
S. W. Tisdale, Director Date
M. T. YONKER January 20, 1999
- ------------------------------- ----------------
M. T. Yonker, Director Date
Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee
benefit plan) have caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Milwaukee, State of Wisconsin, on this
20th day of January, 1999.
MODINE DEFERRED COMPENSATION PLAN
BY: MATTHEW P. DEMET
--------------------------------
Matthew P. Demet, Vice
President of Marshall & Ilsley
Trust Company, Trustee
BY: MICHAEL J. SHLENSKY
--------------------------------
Michael J. Shlensky, Vice
President of Marshall & Ilsley
Trust Company, Trustee
<PAGE>
EXHIBIT INDEX
Sequential
Description Page No.
- ----------- ----------
4(a) Rights Agreement dated as of
October 16, 1986 between the
Registrant and First Chicago Trust
Company of New York (Rights Agent)
(filed by reference to the
Registrant's Annual Report on Form
10-K for the fiscal year ended
March 31, 1997).
4(b)(i) Rights Agreement Amendment
No. 1 dated as of January 18, 1995
between the Registrant and First
Chicago Trust Company of New York
(Rights Agent) (filed by reference to
the exhibit contained within the
Registrant's Current Report on Form
8-K dated January 13, 1995).
4(b)(ii) Rights Agreement Amendment No. 2
dated as of January 18, 1995 between
the Registrant and First Chicago
Trust Company of New York (Rights
Agent) (filed by reference to the
exhibit contained within the
Registrant's Current Report on Form
8-K dated January 13, 1995).
4(b)(iii) Rights Agreement Amendment
No. 3 dated as of October 15, 1996
between the Registrant and First
Chicago Trust Company of New York
(Rights Agent) (filed by reference to
the exhibit contained within the
Registrant's Quarterly Report on Form
10-Q dated December 26, 1996).
4(b)(iv) Rights Agreement Amendment
No. 4 dated as of November 10, 1997
between the Registrant and Norwest
Bank Minnesota, N.A., (Rights Agent)
(filed by reference to the exhibit
contained within the Registrant's
Quarterly Report on Form 10-Q dated
December 26, 1997).
*5(a) Opinion regarding legality of original
issuance securities provided by von
Briesen, Purtell & Roper, S.C. 11
15 Not Applicable.
*23(a) Consent of Independent Auditors,
provided by PricewaterhouseCoopers, LLP. 12
<PAGE>
*23(b) Consent of Counsel, incorporated by
reference to Exhibit 5(a). 11
24 Not Applicable.
27 Not Applicable.
*99(a) Modine Deferred Compensation
Plan, Deferred Compensation
Agreement, and Trust Agreement 13
*99(b) Important Factors and Assumptions
Regarding Forwarding-Looking
Statements. 46
* Filed herewith
<PAGE>
EXHIBIT 5(a)
von Briesen, Purtell & Roper, s.c.
Attorneys at Law
411 Building Office
411 East Wisconsin Avenue - Suite 700
Milwaukee, Wisconsin 53202-4470
Telephone 414-276-1122
Facsimile 414-276-6281
Water Street Office
735 North Water Street - Suite 1000
Milwaukee, Wisconsin 53202-4184
Telephone 414-273-7000
Facsimile 414-273-7897
January 20, 1999
The Board of Directors
Modine Manufacturing Company
1500 DeKoven Avenue
Racine, WI 53403
Gentlemen:
This firm is counsel for Modine Manufacturing Company (the "Company"),
which is the registrant in a Registration Statement under the Securities
Act of 1933 on Form S-8, dated January 20, 1999, relating to the
registration of 25,000 shares of the Company's common stock, $0.625
par value per share (the "Shares"), to be offered and sold pursuant to
the Modine Non-Qualified Deferred Compensation Plan.
As counsel, we are familiar with the action taken by the Company in
connection with the authorization of the Shares. We have examined
such records and other documents as we have deemed necessary for the
opinion hereinafter expressed.
Based upon the foregoing, and having regard to legal considerations
which we deem relevant, we are of the opinion that the Shares described
in the Registration Statement will be, when sold, legally issued by the
Company, fully paid and non-assessable, except to the extent provided in
Section 180.0622(2)(b), of the Wisconsin Statutes, which provides, in
part, that shareholders of a Wisconsin corporation are personally liable
to an amount equal to the par value of shares owned by them for all
debts owing to employees of the corporation for services performed for
such corporation, but not exceeding six months' service in any one case.
We hereby consent to the inclusion of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
von BRIESEN, PURTELL & ROPER, s.c.
VON BRIESEN, PURTELL & ROPER, S.C.
<PAGE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
registration statement on Form S-8 of our reports dated
April 29, 1998 on our audits of the consolidated financial
statements and financial statement schedules of Modine
Manufacturing Company and Subsidiaries as of March 31, 1998
and 1997, and for each of the three years in the period
ended March 31, 1998, which reports are incorporated by
reference or included in the 1998 annual report on Form 10-K.
PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Chicago, Illinois
January 20, 1999
<PAGE>
EXHIBIT 99(a)
MODINE MANUFACTURING COMPANY
DEFERRED COMPENSATION PLAN
EFFECTIVE MARCH 1, 1999
<PAGE>
MODINE MANUFACTURING COMPANY
DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
Page
ARTICLE I
ESTABLISHMENT OF PLAN AND PURPOSE
1.01 Establishment of Plan 4
1.02 Purpose of Plan 4
ARTICLE II
DEFINITIONS AND CONSTRUCTION
2.01 Definitions 5
2.02 Construction 6
ARTICLE III
ELIGIBILITY
3.01 Conditions of Eligibility 7
3.02 Commencement of Participation 7
3.03 Termination of Participation 7
ARTICLE IV
DEFERRAL OF COMPENSATION
4.01 Amount and Manner of Deferral 8
4.02 Cessation of Deferral 8
ARTICLE V
COMPANY CONTRIBUTIONS
5.01 Company Discretionary Matching Contributions 9
5.02 Allocation of Matching Contributions 9
ARTICLE VI
ACCOUNT
6.01 Nature of Account 10
6.02 Credit to Deferral Contributions Account 10
6.03 Credit to company Matching Contributions Account 10
6.04 Changes in Account 11
6.05 Investments 11
6.06 Valuation Account 11
ARTICLE VII
VESTING
7.01 Participant's Account 12
ARTICLE VIII
DISTRIBUTIONS
8.01 For Reasons Other than Death 13
8.02 Upon Death 13
8.03 Emergencies 15
<PAGE>
ARTICLE IX
ADMINISTRATION OF THE PLAN
9.01 Appointment of Separate Administrator 16
9.02 Powers and Duties 16
9.03 Records and Notices 17
9.04 Compensation and Expenses 17
9.05 Limitation of Authority 17
ARTICLE X
GENERAL PROVISIONS
10.01 Assignment 18
10.02 Employment Not Guaranteed by Plan 18
10.03 Termination and Amendment 18
10.04 Contingency 18
10.05 Notice 18
10.06 Limitation on Liability 19
10.07 Indemnification 19
10.08 Headings 19
10.09 Severability 19
<PAGE>
INTRODUCTION
Effective March 1, 1999, Modine Manufacturing Company (the
"Company") adopted a nonqualified deferred compensation plan to
benefit certain of its employees by facilitating the accumulation
of funds for their retirement.
This introduction and the following Articles, as amended
from time to time, comprise the Plan.
<PAGE>
ARTICLE I
Establishment of Plan and Purpose
1.01 Establishment of Plan. Modine Manufacturing
---------------------
Company (the "Company") establishes the Modine Manufacturing
Company Deferred Compensation Plan (the "Plan"), effective as of
March 1, 1999.
1.02 Purpose of Plan. The Plan shall permit a select
---------------
group of management and highly compensated employees to enhance
the security of themselves and their beneficiaries following the
termination of their employment with the Company (as defined
herein) by deferring until that time a portion of the
compensation which may otherwise be payable to them at an earlier
date and by providing for Company matching contributions on
certain deferred amounts. By allowing key management employees
to participate in the Plan, the Company expects the Plan to
benefit it in attracting and retaining the most capable
individuals to fill its executive positions.
The parties intend that the arrangements described
herein be unfunded for tax purposes of Title I in the Employee
Retirement Income Security Act as amended from time to time.
<PAGE>
ARTICLE II
Definitions and Construction
As used herein, the following words shall have the following
meanings:
2.01 Definitions.
-----------
(a) Administrator. The person or persons selected
-------------
pursuant to Article IX below to control and manage the
operation and administration of the Plan.
(b) Beneficiaries. The spouse or descendants of
-------------
Participant or any other person receiving benefits
hereunder in relation to the Participant.
(c) Company. Modine Manufacturing Company, a Wisconsin
-------
corporation or successor thereof now or hereinafter
created.
(d) Compensation. The Participant's base salary
------------
including amounts deferred by the Participant under
this Plan or any other employee benefit plan of the
Company, provided , however, that Compensation shall
not include severance pay or salary continuation
payments. In all cases compensation shall include only
compensation paid while an employee is a Participant in
the Plan.
(e) Deferral Contributions. The amount of deferred
----------------------
compensation contributed by the Participant for a
calendar year pursuant to Section 4.01 herein.
(f) Effective Date. The effective date of this Plan
--------------
shall be March 1, 1999.
(g) Employee. An employee of the Company.
--------
(h) Employment. Employment with the Company.
----------
(i) Participants Account. The account maintained for
--------------------
each Participant pursuant to Article VI below.
(j) Participants. Such management and highly
------------
compensated Employees whom the Administrator identifies
as eligible to participate herein.
<PAGE>
(k) Plan. The Modine Manufacturing Company Deferred
----
Compensation Plan, as stated herein and as amended from
time to time.
(l) Plan Year. The period beginning on the Effective
---------
Date and ending on December 31, 1999, and each 12-month
period ending on each subsequent December 31.
(m) Retirement. As to each Participant, the
----------
termination of employment on or after the later of
attaining age 65.
(n) Unforeseeable Emergency. An Unforeseeable
-----------------------
Emergency is a severe financial hardship to a
Participant resulting from a sudden and unexpected
illness or accident of the Participant or of a
dependent (as defined in section 152(a) of the Code) of
the Participant, loss of the Participant's property due
to casualty or other similar extraordinary and
unforeseeable circumstances arising as a result of
events beyond the control of the Participant.
2.02 Construction. The laws of the State of Wisconsin, as
------------
amended from time to time, shall govern the construction and
application of this Agreement. Words used in the masculine
gender shall include the feminine and words used in the singular
shall include the plural, as appropriate. The words "hereof,"
"herein", "hereunder" and other similar compounds of the word
"here" shall refer to the entire Agreement, not to a particular
section. All references to statutory sections shall include the
section so identified as amended from time to time or any other
statute of similar import. If any provisions of the Internal
Revenue Code, Employee Retirement Income Security Act or other
statutes or regulations render any provisions of this Plan
unenforceable, such provision shall be of no force and effect
only to the minimum extent required by such law.
<PAGE>
ARTICLE III
Eligibility
3.01 Conditions of Eligibility. The Administrator shall,
-------------------------
from time to time, specify the management and highly compensated
Employees eligible to participate herein on Appendix A.
3.02 Commencement of Participation. An individual
-----------------------------
identified as eligible to participate herein shall, by electing
to participate substantially in the form of Appendix B attached
hereto, commence participation as of either the first day of any
Plan Year beginning on or after the later of (i) March 1, 1999 or
(ii) his identification as eligible for participation.
3.03 Termination of Participation. An individual's
----------------------------
right to participate herein shall cease as of the earlier of the
termination of his Employment or action by the Administrator
removing him from the Employees eligible to participate herein.
If an individual's right to participate terminates
during a Plan Year, his Compensation for such year shall include
only Compensation otherwise earned by him before the cessation of
his eligibility to defer.
<PAGE>
ARTICLE IV
Deferral of Compensation
4.01 Amount and Manner of Deferral. Prior to the
-----------------------------
beginning of any Plan Year beginning on or after the Effective
Date, a Participant may submit to the Administrator a written
election substantially in the form of Appendix B attached hereto
indicating the portion of the Participant's Compensation for such
Plan Year which he or she elects to defer hereunder which
election shall become irrevocable immediately upon commencement
of the Plan Year. Participant elections will be limited to 10% of
Compensation., reduced by the maximum amount permitted to be
deferred into the Modine 401(k) Retirement Plan for Salaried
Employees. The Company shall, consistent with that election,
defer such portion of the Participant's Compensation earned in
such Plan Year.
If a Participant elects to defer a portion of his or her
Compensation under the Plan, the Company (a) shall commence the
Participant's deferral into this Plan when the maximum permitted
amount has been deferred into the Modine 401(k) Retirement Plan
for Salaried Employees and (b) shall reduce the Participant's
Compensation by the amount deferred hereunder.
4.02 Cessation of Deferral. In the event of an
---------------------
Unforeseeable Emergency, a participant may request in writing
that deferrals elected by that Participant hereunder shall cease
for the then current Plan Year. Such Unforeseeable Emergency must
inflict hardship upon the Participant and must arise from causes
beyond the Participant's control. The Administrator shall, in its
reasonable judgment, determine whether such an Unforeseeable
Emergency exists. Circumstances that will constitute an
Unforeseeable Emergency shall depend on the facts of each case,
consistent with the provisions of Treasury Regulation Section
1.457-2(h)(4) and (5). If the Administrator determines that such
an Unforeseeable Emergency does exist, the deferrals for that
Plan Year shall cease as to that Participant. If the
administrator determines that no such emergency exists, the
deferrals shall continue as originally elected.
If a Participant, consistent with the immediately preceding
paragraph, ceases deferrals in a Plan year, the Participant may
not resume deferrals hereunder (if otherwise eligible to do so)
until the Plan Year following the Plan Year in which the
cessation occurred.
<PAGE>
ARTICLE V
Company Contributions
5.01 Company Discretionary Matching Contributions.
--------------------------------------------
Subject to the right of the Company to alter, amend or terminate
the Plan, for each payroll period the Company may, but is not
required to contribute, a matching contribution to the Plan in an
amount, if any, to be determined in the absolute discretion of
the Board of Directors of the Company by resolution adopted on or
before the last day of the calendar year. In the event the Board
of Directors does not specifically authorize a matching
contribution to the Plan, the Company shall be under no
obligation to make any discretionary contributions pursuant to
this section 5.01.
5.02 Allocation of Matching Contributions. The matching
------------------------------------
contributions made by the Company pursuant to Section 5.01 above
shall be allocated among Participants in the ratio that the
eligible deferrals of each Participant bears to the eligible
deferrals of all Participants for that payroll period. Eligible
deferrals shall be such amount of deferrals as determined from
time to time by the Board of Directors in its absolute
discretion.
<PAGE>
ARTICLE VI
Account
6.01 Nature of Account. Only for the purpose of
-----------------
measuring payments due Participants hereunder, the Company shall
maintain on behalf of each Participant an Account including a
Deferral Contributions Account to which the Company shall credit
amounts deferred under Section 4.01 and a Company Contributions
Account to which the Company shall credit amounts contributed
under Section 5.01.
The Account hereunder and assets, if any and of any
nature acquired by the Company to measure a Participant's
benefits hereunder, shall not constitute or be treated for any
reason as a trust for, property of or a security interest for the
benefit of a Participant, his Beneficiaries or any other person.
The Participants and the Company acknowledge that the Plan
constitutes a promise by the Company to pay benefits to the
Participants or their beneficiaries, that Participants' rights
hereunder are limited to those of general unsecured creditors of
the Company and that the establishment of the Plan, the deferral
of all or any portion of a Participant's Compensation, and the
acquisition of assets to measure a Participant's benefits
hereunder do not prevent any property of the Company from being
subject to the right of all of the Company's creditors. The
Company shall contribute all contributions hereunder to a trust
created by the Company and any assets held by the trust to assist
it in meeting its obligations under the Plan will conform to the
terms of the Internal Revenue Service's model trust, as described
in Revenue Procedure 92-64.
6.02 Credit to Deferral Contribution Account. As of the
---------------------------------------
last day of each Plan Year, the Company shall credit to the
Deferral Contributions Account of each Participant the amount, if
any, of that Participant's Compensation deferred for such Plan
Year (even if calculated and otherwise paid following the close
of that Plan Year). If the Administrator in its discretion so
elects, the Company may credit to a Participant's Account during
a Plan Year such amounts representing Compensation otherwise
payable before the end of the Plan Year. In such instances, the
Company shall credit such amounts to Participants' Accounts as
the amounts would otherwise become payable and shall do so on a
uniform and nondiscriminatory basis for all Participants.
6.03 Credit to Company Contributions Account. As of
---------------------------------------
the last day of each Plan Year, the Company shall credit to the
Company Contributions Account of each Participant the amount, if
any, of Company Matching Contributions under Section 5.01. If the
Administrator in its discretion so elects, the Company may credit
to a Participant's Account during a Plan Year such amounts
representing Company Matching Contributions on Deferral
Contributions from Compensation otherwise payable before the end
of the Plan Year. In such instances, the Company shall credit
<PAGE>
such amounts to Participants' Accounts as the Deferral
Contributions are made and shall do so on a uniform and
nondiscriminatory basis for all Participants.
6.04 Changes in Account. If a Participant defers the
------------------
receipt of Compensation under this Plan, the Participant's
Account shall record the receipt of all contributions, as
indicated from time to time. The Participant's Account shall
reflect the income and losses and increase or decrease in value
experienced by assets specified on Appendix B. A Participant's
Account shall also reflect expenses generated by, and related to,
the investment choices the Company makes for his Account.
6.05 Investments.
-----------
(a) The trustee of the Trust established pursuant to
6.01 above shall invest all assets contributed under
this Plan, and earnings thereon, in accordance with the
Trust Agreement.
(b) A Participant may request his or her preferences
for the investment of assets of his or her Account in
one or more investment alternatives made available by
the Administrator. The Participant may change his or
her investment preference as of any January 1, April 1,
July 1 or October 1 by delivering a new investment
request as specified on Appendix B at least 10 days
prior to such effective date. The Trustee shall
attempt to invest amounts credited to the Participant's
Trust Account pursuant to his or her request, but the
Trustee shall have final investment discretion with
respect to all Accounts.
(c) No individual may commence participation herein
without first submitting a request pursuant to this
subsection 6.05. A Participant or, following his death
his Beneficiaries, may continue submitting elections
hereunder until the distribution of all amounts from
his or her Account. All elections must be in writing
and must be signed by the Administrator.
6.06 Valuation of Account. Within 90 days after the
--------------------
last day of each Plan Year and such other dates selected by the
Administrator, the Company shall provide each Participant or his
Beneficiaries a statement indicating the balance of his Account
as of the last day of such Plan Year or other applicable period
reflecting the amount of Deferral Contributions and Company
Matching Contributions if any, together with all other changes in
value during such period. Participants who disagree with the
information provided in such statements must submit objections,
in writing, to the Administrator within 90 days of receipt of
such statements.
<PAGE>
ARTICLE VII
Vesting
7.01 Participant's Account. Subject to the rights of
---------------------
the Company's creditors as set forth in Section 6.01 above, the
Participant's Account, including the Deferral Contributions
Account and the Company Matching Contributions Account of that
Participant, shall at all times be non-forfeitable.
<PAGE>
ARTICLE VIII
Distributions
8.01 For Reasons Other Than Death. The Company shall pay an
----------------------------
amount equaling the balance of a Participant's Account
to him in a single lump sum or installments as
previously elected by the Participant, either
commencing as soon as possible, but no later than 120
days following the end of the Plan Year during which
occurs the earliest of the following:
(a) His or her Retirement.
(b) The determination of Disability by the Employer. For
purposes of this Plan, Disability means a physical or mental
condition of a Participant resulting from bodily injury,
disease or mental disorder which renders the Participant
permanently incapable of continuing his or her then existing
position of employment with the Company. The determination
of Disability shall be determined by the Administrator in
accordance with uniform principles consistently applied and
based on evidence the Administrator deems necessary.
(c) The termination of employment of the Participant for any
reason.
A Participant may change his or her form of payment, by filing a
Form of Payment Election, at any time at least one year prior to
the occurrence of the distributable event set forth above. Any
such payment shall reduce the balance in his Account.
8.02 Upon Death.
----------
(a) Upon a Participant's death, either before or after his
Retirement, with a balance remaining in his Account, the
Company shall pay an amount equaling the balance of his
Account to the beneficiary or beneficiaries specified by
the Participant or, if none, to his surviving spouse or,
if none, to his estate. Each Participant may designate a
beneficiary or beneficiaries to receive the unpaid balance
of his Account upon his death and may revoke or modify such
designation at any time and from time to time by submitting
to the Administrator a Beneficiary Designation substantially
in the form attached hereto as Appendix B.
(b) If a Participant's death occurs prior to the payment of
any amounts to him hereunder, other than payments for
emergencies, and:
(i) payments are to be made to his estate, such
payments shall occur in six annual installments beginning with a
payment on the first day of the sixth month immediately following
the Participant's death of an amount equal to the estate and
inheritance taxes attributed to the value of the balance of the
Account with the remainder thereof paid within the first 120 days
<PAGE>
in each of the five consecutive Plan Years beginning immediately
thereafter. The amount of each such subsequent payment shall
equal the quotient obtained upon dividing the balance in the
Account as of the first day of the Plan Year of payment by the
number of installments then remaining to be paid (including the
installment then being paid) in equal installments, or
(ii) if payments are to be made to a beneficiary
other than his estate, such payments shall occur in five annual
installments payable within the first 120 days of the Plan Year
immediately following the Participant's death and the first 120
days of each of the four Plan years immediately thereafter.
The amount of each such payment shall equal the
quotient obtained upon dividing the balance in the
Account as of the first day of the Plan year of payment
by the number of installments then remaining to be paid
(including the installment then being paid).
(c) If a Participant's death occurs after the payment
of any amount to him hereunder, other than payments for
Emergencies under 8.03, payments to his or her
Beneficiary shall occur in the same form, and be
calculated in the same manner, as paid to the
Participant prior to death by merely substituting the
new recipient for the Participant.
(d) Notwithstanding any other provision of this Sec.
8.02, if, upon a Participant's or Beneficiary's death,
the Plan (or any Trust related to it) receives the
proceeds of a policy insuring the life of the deceased,
the Company shall, as soon as practicable, pay over
such proceeds to the appropriate Beneficiary or estate
and such amount shall reduce the balance to be paid
hereunder. In the event that policy proceeds are
greater than the Participant's Account balance, such
excess shall accrue to the benefit of the Participant.
(e) If a Beneficiary survives a Participant but dies
prior to receipt of the entire amount in the Account
due him or her, the Company shall, as soon as
practicable, pay to the estate of the Beneficiary in a
lump sum the entire remaining, balance herein due the
Beneficiary.
(f) The Administrator shall reduce the balance in the
deceased Participant's Account by the amount of any
payment pursuant to this section 8.02 immediately upon
the occurrence of such payment.
8.03 Emergencies. In the event of an Unforeseeable
-----------
Emergency either before or after the commencement of payments
hereunder, a Participant or Beneficiary may request in writing
that all or any portion of the benefits due him hereunder be paid
in one or more installments prior to the normal time for payment
of such amount. The Administrator shall, in its reasonable
judgment, determine whether the applicant could not address the
emergency through reimbursement or compensation by insurance or
<PAGE>
otherwise, by liquidation of other assets (provided such
liquidation, in itself. would not create a financial hardship).
Only if the Administrator determines that such an Unforeseeable
Emergency exists, the Company shall pay to the Participant or
Beneficiary, as the case may be, an amount equal to the lesser of
(a) the amount requested or (b) the amount reasonably necessary
to alleviate the hardship. The Administrator shall use its
reasonable discretion to determine when the payments shall be
made and shall immediately reduce the balance in the recipient's
Account by the amount of such payment.
<PAGE>
ARTICLE IX
Administration of the Plan
9.01 Appointment of Separate Administrator. The Company
-------------------------------------
shall, in writing, appoint a separate Administrator. Any person
including, but not limited to, Employees shall be eligible to
serve as Administrator. Two or more persons may form a committee
to serve as Administrator. Persons serving as Administrator may
resign by written notice to the Company and the Company may
appoint or remove such persons. An Administrator consisting of
more than one person shall act by a majority of its members at
the time in office, either by vote at a meeting or in writing
without a meeting. An Administrator consisting of more than one
person may authorize any one or more of its members to execute
any document or documents on behalf of the Administrator, in
which event the Administrator shall notify the Company of the
member or members so designated. The Company shall accept and
rely upon any document executed by such member or members as
representing action by the Administrator until the Administrator
shall file with the Company a written revocation of such
designation. No person serving as Administrator shall vote or
decide upon any matter relating solely to himself or solely to
any of his or her rights or benefits pursuant to the Plan.
9.02 Powers and Duties. The Administrator shall administer
-----------------
the Plan in accordance with its terms. The Administrator shall have
full and complete authority and control with respect to Plan operations
and administration unless the Administrator allocates and delegates such
authority or control pursuant to the procedures stated in subsection b
or c below. Any decisions of the Administrator or its delegate shall be
final and binding upon all persons dealing with the Plan or claiming any
benefit under the Plan. The Administrator shall have all powers that are
necessary to manage and control Plan operations and administration
including, but not limited to, the following:
(a) To employ such accountants, counsel or other
persons as it deems necessary or desirable in
connection with Plan administration. The Company
shall bear the costs of such services and other
administrative expenses.
(b) To designate in writing persons other than the
Administrator to perform any of its powers and duties
hereunder.
(c) To allocate in writing any of its powers and duties
hereunder to those persons who have been designated to
perform Plan responsibilities.
(d) The discretionary authority to construe and interpret
the Plan, including the power to construe disputed provisions.
(e) To resolve all questions arising in the administration.
interpretation and application of the Plan including, but not
limited to, questions as to the eligibility or the right of
any person to a benefit.
<PAGE>
(f) To adopt such rules, regulations, forms and procedures
from time to time as it deems advisable and appropriate in
the proper administration of the Plan.
(g) To prescribe procedures to be followed by any person
in applying for distributions pursuant to the Plan and to
designate the forms or documents, evidence and such other
information as the Administrator may reasonably deem
necessary, desirable or convenient to support an application
for such distribution.
(h) To apply consistently and uniformly the rules, regulations
and determinations to all Participants and beneficiaries in
similar circumstances.
9.03 Records and Notices. The Administrator shall keep a
-------------------
record of all its proceedings and acts and shall maintain all
such books of accounts, records and other data as may be
necessary for proper plan administration. The Administrator shall
notify the Company of any action taken by the Administrator which
affects the Trustee's Plan obligations or rights and, when
required, shall notify any other interested parties.
9.04 Compensation and Expenses. The Company shall pay the
-------------------------
expenses incurred by the Administrator in the proper
administration of the Plan. An Administrator who is an Employee
shall not receive any additional fee or compensation for services
rendered as an Administrator.
9.05 Limitation of Authority. The Administrator shall not
-----------------------
add to, subtract from or modify any of the terms of the Plan,
change or add to any benefits prescribed by the Plan, or waive or
fail to apply any Plan requirement for benefit eligibility.
<PAGE>
ARTICLE X
General Provisions
10.01 Assignment. No Participant or Beneficiary may
----------
sell, assign, transfer encumber or otherwise dispose of the right
to receive payments hereunder. A Participant's rights to benefit
payments under the Plan are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment or garnishment by creditors of the
Participant or the Participant's beneficiary.
10.02 Employment Not Guaranteed by Plan. The
---------------------------------
establishment of this Plan, its amendments and the granting of a
benefit pursuant to the Plan shall not give any Participant the
right to continued Employment or limit the right of the Company
to dismiss or impose penalties upon the Participant or modify the
terms of Employment of any Participant.
10.03 Termination and Amendment. The Company may at any
-------------------------
time and from time to time terminate, suspend, alter or amend
this Plan and no Participant or any other person shall have any
right, title, interest or claim against the Company, its
directors, officers or employees for any amounts, except that (i)
Participant shall be fully vested in his Account hereunder as of
the date on which the Plan is terminated or suspended, (ii) no
amendment shall reduce a Participant's then existing non-
forfeitable interest in the Plan, and (iii) (unless the Company
and Participant agree to the contrary) such amount shall (a)
continue to fluctuate pursuant to the investment election then in
effect and (b) be paid to the Participant or his Beneficiaries at
the time and in the manner provided by Article VII above.
10.04 Contingency. The Company may apply for private
-----------
rulings from the United States Department of Labor as to the
exemption of the arrangement described herein from the reporting
and disclosure requirements of ERISA and from the Internal Revenue
Service as to the deductibility from taxable income of benefits
paid hereunder or the exclusion of amounts deferred hereunder from
the taxable income of Participant until paid. If the Company
applies for a private letter ruling from the Department of Labor
or Internal Revenue Service and does not receive a satisfactory
reply thereto, the Company may deem this Plan terminated in which
event the parties shall treat all amounts deferred hereunder as
immediately payable to the Participants and all parties' rights
and obligations hereunder shall thereupon cease.
10.05 Notice. Any and all notices, designations or
------
reports provided for herein shall be in writing and delivered
personally or by registered or certified mail, return receipt
requested, addressed, in the case of the Company, its Board of
Directors or Administrator, to the Company's principal business
office and, in the case of a Participant or Beneficiary, to his
home address as shown on the records of the Company.
<PAGE>
10.06 Limitation on Liability. In no event shall the
-----------------------
Company, Administrator or any employee, officer or director of
the Company incur any liability for any act or failure to act
unless such act or failure to act constitutes a lack of good
faith, willful misconduct or gross negligence with respect to the
Plan.
10.07 Indemnification. The Company shall indemnify the
---------------
Administrator and any employee, officer or director of the
Company against all liabilities arising by reason of any act or
failure to act unless such act or failure to act is due to such
person's own gross negligence or willful misconduct or lack of
good faith in the performance of his duties to the Plan or Trust
Fund. Such indemnification shall include, but not be limited to,
expenses reasonably incurred in the defense of any claim,
including reasonable attorneys and legal fees, and amounts paid
in any settlement or compromise; provided, however, that
indemnification shall not occur to the extent that it is not
permitted by applicable law. Indemnification shall not be deemed
the exclusive remedy of any person entitled to indemnification
pursuant to this section. The indemnification provided hereunder
shall continue as to a person who has ceased acting as a
director, officer, member, agent or employee of the Administrator
or as an officer, director or employee of the Company and such
person's rights shall inure to the benefit of his heirs and
representatives.
10.08 Headings. All articles and section headings in
--------
this Plan are intended merely for convenience and shall in no way
be deemed to modify or supplement the actual terms and provisions
stated thereunder.
10.09 Severability. Any provision of this Plan
------------
prohibited by law shall be ineffective to the extent of any such
prohibition, without invalidating the remaining provisions hereof.
The illegal or invalid provisions shall be fully severable and this
Plan shall be construed and enforced as if the illegal or invalid
provisions had never been inserted in this Plan.
IN WITNESS WHEREOF, the Company, by its duly
appointed officer. has caused this Plan to be executed and
thereby established and its seal to be hereunto affixed as of the
day20th day of January, 1999.and year first above written
MODINE MANUFACTURING COMPANY
BY D. R. JOHNSON
------------------------------
D. R. Johnson, President
& Chief Executive Officer
Attest:
BY W. E. PAVLICK
-------------------------
W. E. Pavlick, Secretary
<PAGE>
APPENDIX A
ELIGIBLE EMPLOYEES
<PAGE>
APPENDIX B
DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT is made as of the day of , 19
------- ------------- ----
by and between Modine Manufacturing Company ("Company") and
("Employee").
- ---------------------
RECITALS:
A. The Employee has been and is currently employed by the
Company;
B. The Company desires to retain the services of the Employee
and to induce him/her to continue his/her employment by providing
him/her with a deferred compensation plan;
C. The Company has established the Modine Manufacturing Company
Deferred Compensation Plan (the "Plan"); and
D. The Employee desires to participate in the Plan.
AGREEMENTS
NOW, THEREFORE, for and in consideration of the premises and
of the mutual covenants herein contained, the parties hereby
agree as follows:
1. The parties acknowledge that the Plan, attached as
Appendix I, is incorporated as part of this Agreement.
2. The Employee irrevocably directs the Company to defer
for each pay period for the duration of the calendar year %
-----
of Compensation, not to exceed 10% of his/her Compensation per
payroll period, commencing when his/her deferral under the Modine
401(k) Plan for Salaried Employees reaches the maximum deferral
permitted by that Plan. Such deferral shall be determined prior
to any pretax and after tax reductions and prior to any tax
withholding.
3. The Employee's direction under Section 2 of this
AgareementAgreement is irrevocable and can be modified or
revoked, prior to commencement of the calendar year or in the
event of an Emergency as provided in Section 4.02 of the Plan.
4. The parties acknowledge that the amount and payment of
benefits resulting from the deferral of Compensation pursuant to
this Agreement shall be determined exclusively pursuant to the
terms of the Plan. The value of the Account shall be established
pursuant to Article 6 of the Plan.
5. The Employee hereby authorizes the Administrator to
reduce the accumulation of his/her Account by the expenses of
investment if any.
<PAGE>
6. The parties acknowledge that this Agreement shall not
be construed as giving the Employee the right to continue as an
employee of the Company or as otherwise limiting the right of the
Company to modify the terms of employment of the Employee.
7. The Employee directs that any benefits payable pursuant
to the Plan upon his/her death be paid to the following primary
beneficiaries if they survive the Employee, otherwise to the
following contingent beneficiaries:
Primary Beneficiaries: Percentage of Benefit
- -------------------------- ---------------------
- -------------------------- ---------------------
Contingent Beneficiaries: Percentage of Benefit
- -------------------------- ---------------------
- -------------------------- ---------------------
- -------------------------- ---------------------
The Employee hereby acknowledges that these designations
shall remain in full force and effect until revoked or modified
by the Employee in writing.
8. In the event of any inconsistency between the terms of
this Agreement and the terms of the Plan, the terms of the Plan
shall govern.
9. For purposes of Section 6.04 of the Plan, the Employee
requests that the Administrator shall direct any amounts credited
to the Employee's Account under this or any prior Agreement to be
invested among the investments permitted by the Plan as follows
(must be in increments of 10%):
Marshall Money Market Fund %
--------
Marshall Intermediate Bond Fund %
--------
Vanguard Index 500 Fund %
--------
Marshall Equity Income Fund %
--------
Marshall Mid-Cap Growth Stock Fund %
--------
Managers Special Equity Fund %
--------
American Century 20th Century
International Growth
Investment Fund %
--------
Modine Company Stock Fund %
--------
100 %
<PAGE>
10. Pursuant to Section 8.01 of the Plan, the Employee directs
the Company to pay the entire amount of his [her] Account, representing
Compensation deferred under this Agreement (including accrued earnings,
if any), in one of the following methods:
Distribution Option Employee's Election
------------------- -------------------
(Check one below)
(a) Lump sum distribution to be paid as
soon as possible but not later than 120 days
following the earlier of (i) Retirement,
(ii) Disability (as defined in the Plan) of
the Employee, (iii) the date certain elected
under paragraph 8 above or (iv) termination
of employment.
------
(b) Five equal annual installments, the
first such installment to be paid as soon
as possible but not later than 120 days
following the earlier of (i) Retirement,
(ii) Disability (as defined in the Plan)
of the Employee, (iii) the date certain
elected under paragraph 8 above, or (iv)
termination of employment.
------
This election pursuant to Paragraph 9 hereof and pursuant to
Section 8.01 of the Plan may be amended not later than one year
prior to a distributable event under the Plan by filing a form
with the Administrator.
IMPORTANT NOTE: This Plan has not been reviewed by the Internal
Revenue Service. However, the Company believes the Plan is in
compliance with the Tax Code and applicable Regulations and that
taxes on Employee deferrals to the Plan, Plan earnings and any
Company Contributions are deferred. You should be aware though,
that if the Internal Revenue Service determines the Plan is not
qualified to provide such tax deferral, participating Employees
may be subject to immediate taxes on such deferrals, earnings and
Contributions.
IN WITNESS WHEREOF, the parties have executed this
Agreement as the day and year first written above.
MODINE MANUFACTURING COMPANY
Corporate Seal
By:
-------------------------------
By:
-------------------------------
Employee
<PAGE>
TRUST UNDER THE MODINE MANUFACTURING COMPANY
DEFERRED COMPENSATION PLAN
This Agreement effective as of this 20th day of January, 1999, by
and between Modine Manufacturing Company ("Company") and Marshall
and Ilsley Trust Company ("Trustee");
WHEREAS, Company has adopted a non-qualified deferred
compensation plan for a selected group of its highly compensated
employees known as the Modine Manufacturing Company Deferred
Compensation Plan ("Plan");
WHEREAS, Company has incurred or expects to incur liability under
the terms of such Plan with respect to the individuals
participating in such Plan,
WHEREAS, Company wishes to establish a trust (hereinafter called
"Trust") and to contribute to the Trust assets that shall be held
therein, subject to the claims of Company's creditors in the
event of Company's Insolvency, as herein defined, until paid to
Plan participants and their beneficiaries in such manner and at
such time as specified in the Plan;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement;
WHEREAS, it is the intention of the Company to make contributions
to the Trust to provide itself with a source of funds to assist
it in the meeting of its liabilities under the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and
agree that the Trust shall be comprised, held and disposed of as
follows:
Section 1. Establishment of Trust.
(a) Company hereby deposits with Trustee in trust Ten Dollars
($10.00), which shall become the principal of the Trust to
be held, administered and disposed of by Trustee as provided
in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which
Company is the grantor, within the meaning of subpart E,
part I, subchapter J, chapter 1 subtitle A of the Internal
Revenue Code of 1986, as amended, and shall be construed
accordingly.
(d) The principal of the Trust, and any earnings thereon shall
be held separate and apart from other funds of the Company
and shall be used exclusively for the uses and purposes of
Plan participants and general creditors as herein set forth.
Plan participants and their beneficiaries shall have no
preferred claim on, or any beneficial ownership interest in,
any assets of the Trust. Any rights created under the Plan
<PAGE>
and this Trust Agreement shall be mere unsecured contractual
rights of Plan participants and their beneficiaries against
the Company. Any assets held by the Trust will be subject
to the claims of the Company's general creditors under
federal and state law in the event of Insolvency, as defined
in Section 3(a) herein.
(e) Company, in its sole discretion, may at any time, or from
time to time, make additional deposits of cash or other
property in trust with Trustee to augment the principal
to be held, administered and disposed of by Trustee in
this Trust Agreement. Neither Trustee nor any Plan
participant or beneficiary shall have any right to compel
such additional deposits.
Section 2. Payments to Plan Participants and Their Beneficiaries.
(a) Company shall deliver to Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect of
each Plan participant (and his or her beneficiaries), that
provides a formula or other instructions acceptable to
Trustee for determining the amounts so payable, the form
in which such amount is to be paid (as provided for or
available under the Plan), and the time of commencement
for payment of such amounts. Except as otherwise provided
herein, Trustee shall make payments to the Plan participants
and their beneficiaries in accordance with such Payment
Schedule. The Trustee shall make provision for the
reporting and withholding of any federal, state or local
taxes that may be required to be withheld with respect to
the payment of benefits pursuant to the terms of the Plan
and shall pay amounts withheld to the appropriate taxing
authorities or determine that such amounts have been
reported, withheld and paid by Company.
(b) The entitlement of a Plan participant or his or her
beneficiaries to benefits under the Plan shall be determined
by Company or such party as it shall designate under the
Plan, and any claim for such benefits shall be considered
and reviewed under the procedures set out in the Plan.
(c) Company may make payment of benefits directly to Plan
participants or their beneficiaries as they become due
under the terms of the Plan. Company shall notify Trustee
of its decision to make payment of benefits directly prior
to the time amounts are payable to participant or their
beneficiaries. In addition, if the principal of the Trust,
and any earnings thereon, are not sufficient to make
payments of benefits in accordance with the terms of the
Plan Company shall make the balance of each such payment
as it falls due. Trustee shall notify Company where
principal and earnings are not sufficient.
Section 3. Trustee Responsibility Regarding Payments to Trust
Beneficiary When Company is Insolvent.
(a) Trustee shall cease payment of benefits to Plan participants
and their beneficiaries if the Company is Insolvent. Company
shall be considered "Insolvent" for purposes of this Trust
<PAGE>
Agreement if (i) Company is unable to pay its debts as they
become due, (ii) Company is subject to a pending proceeding
as a debtor under the United States Bankruptcy Code, or (iii)
Company is determined to be insolvent by any state or federal
regulatory authority.
(b) At all times during the continuance of this Trust, as
provided in Section 1(d) hereof, the principal and income
of the Trust shall be subject to claims of general creditors
of the Company under federal and state law as set forth
below.
(1) The Board of Directors and the Chief Executive Officer
of the Company shall have the duty to inform Trustee
in writing of Company's Insolvency. If a person
claiming to be a creditor of Company alleges in writing
to Trustee that Company has become Insolvent, Trustee
shall determine whether Company is Insolvent and,
pending such determination, Trustee shall discontinue
payment of benefits to Plan participants or their
beneficiaries.
(2) Unless Trustee has actual knowledge of Company's
Insolvency, or has received notice from Company or a
person claiming to be a creditor alleging that Company
is Insolvent, Trustee shall have no duty to inquire
whether Company is Insolvent. Trustee may in all events
rely on such evidence concerning Company's solvency as
may be furnished to Trustee and that provides Trustee
with a reasonable basis for making a determination
concerning Company's solvency.
(3) If at any time Trustee has determined that Company is
Insolvent, Trustee shall discontinue payments to Plan
participants or their beneficiaries and shall hold
the assets of the Trust for the benefit of Company's
general creditors. Nothing in this Trust Agreement
shall in any way diminish any rights of Plan
participants or their beneficiaries to pursue their
rights as general creditors of Company with respect
to benefits due under the Plan or otherwise.
(4) Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with
Section 2 of this Trust Agreement only after Trustee
has determined that Company is not Insolvent (or is
no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee
discontinues the payment of benefits from the Trust pursuant
to Section 3(b) hereof and subsequently resumes such payments,
the first payment following such discontinuance shall include
the aggregate amount of all payments due to Plan participants
or their beneficiaries under the terms of the Plan for the
period of such discontinuance, less the aggregate amount of
any payments made to Plan participants or their beneficiaries
by Company in lieu of the payments provided for hereunder
during any such period of discontinuance.
<PAGE>
Section 4. Payments to the Company.
(a) Except as provided in Section 3 hereof, Company shall have
no right or power to direct Trustee to return to the Company
or to divert to others any of the Trust assets before all
payment of benefits have been made to Plan participants and
their beneficiaries pursuant to the terms of the Plan.
Section 5. Investment Authority.
(a) In no event may Trustee invest in securities (including
stock or rights to acquire stock) or obligations issued
by Company, other than a de minimis amount held in common
investment vehicles in which Trustee invests. All rights
associated with assets of the Trust shall be exercised by
Trustee at the direction of the Company or the person
designated thereby as Administrator ("designee"), and
shall in no event be exercisable by or rest with Plan
participants.
(b) In addition to the general investment powers set forth above
in this Section 5, the following provisions shall apply:
(i.) Investment Guidelines and Directives. The Trustee shall
manage, acquire, or dispose of the assets of the Trust
in accordance with this Agreement and the directions of
the Company or its designee. To the extent permitted
by law, the Trustee shall not be liable for any
investment made pursuant to the Company's or its
designee's direction.
(ii.) Trustee Powers. The Trustee shall have the following
powers, rights and duties subject to the Section 8 and
the other provisions of this Trust Agreement:
(A) To receive and hold all contributions paid to it
by the Company; provided, however, that the Trustee
shall have no duty to require any contributions to
be made to it;
(B) To effectuate the written investment instructions
given by the Company or its designee without regard
to any law no or hereafter in force limiting
investments of fiduciaries;
(C) To retain in the trust for investment, any property
deposited by the Trustee hereunder;
(D) To have the authority to invest and reinvest assets
of the Trust in shares of common or preferred stock
bonds, notes, debentures, short-term securities,
mutual funds (including any such fund from which
the Trustee or any affiliate thereof receives an
investment management fee or any other fee), common
Trust funds, and other property, real or personal,
of any kind; to purchase and sell "put" or "call"
options on publicly traded securities; and to
acquire, hold, manage, operate, sell, contract to
sell, grant options with respect to, convey,
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exchange, transfer, abandon, lease, manage, and
otherwise deal with respect to assets of the
Trustee;
(E) To acquire, hold or dispose of insurance or annuity
contracts as directed by the Company or its
designee;
(F) To borrow from anyone such amount or amounts of
money necessary to carry out the purpose of this
Trust and for that purpose to mortgage or pledge
all or any part of the Trust;
(G) To retain in the Trust for investment or pending
distributions, any portion of the Trust in cash
deemed appropriate by the Trustee;
(H) To establish accounts in any affiliate of the
Trustee and in such other banks and financial
institutions as the Trustee deems appropriate
to carry out the purposes of the Trust;
(I) To deposit securities with a clearing corporation
as defined in Article Eight of the Uniform
Commercial Code; to hold the certificates
representing securities, including those in bearer
form, in bulk form with and to merge such
certificates into certificates of the same class
of the same issuer which constitutes assets of
other accounts or owners, without certification
as to the ownership attached; and to utilize a
book-entry system for the transfer or pledge of
securities held by the Trustee or by a clearing
corporation, provided that the records of the
Trustee shall indicate the actual ownership of the
securities and other property of the Trust Fund.
(J) To participate in and use the Federal book-entry
Account system, a service provided by the Federal
Reserve Bank for its member banks for deposit of
Treasury securities.
(K) To hold securities or property in the name of the
Trustee or its nominee or nominees or in such
other form as it determines best with or without
disclosing the Trust relationship, providing the
records of the Trust shall indicate the actual
ownership of such securities or other property.
Section 6. Disposition of Income.
(a) During the Term of this Trust, all income received by the
Trust, net expenses and taxes, shall be accumulated and
reinvested.
Section 7. Accounting by Trustee.
(a) Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other
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transactions required to be made, including such specific
records as shall be agreed upon in writing between Company
and Trustee. Within 60 days following the close of each
calendar year and within 60 days after the removal or
resignation of Trustee, Trustee shall deliver to Company
a written account of its administration of the Trust
during such year or during the period from the close of
the last preceding year to the date of such removal or
resignation, setting forth all investments, receipts,
disbursements and other transactions effected by it,
including a description of all securities and investments
purchased and sold with the cost or net proceeds of such
purchases or sales (accrued interest paid or receivable
being shown separately), and showing all cash, securities
and other property held in the Trust at the end of such
year or as of the date of such removal or resignation,
as the case may be.
Section 8. Responsibility of Trustee.
(a) Trustee shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a
prudent person acting in like capacity and familiar with
such matters would use in the conduct of an enterprise
of a like character and with like aims, provided however,
that Trustee shall incur no liability to any person for any
action taken pursuant to a direction, request or approval
given by Company which is contemplated by, and in conformity
with, the terms of the Plan or this Trust and is given in
writing by Company. In the event of a dispute between
Company and a party, Trustee may apply to a court of
competent jurisdiction to resolve the dispute.
(b) If Trustee undertakes or defends any litigation arising
in connection with this Trust, Company agrees to indemnify
Trustee against Trustee's costs, expenses and liabilities
(including, without limitation, attorneys' fees and expenses)
relating thereto and to be primarily liable for such payments.
If Company does not pay such costs, expenses and liabilities
in a reasonable timely manner, Trustee may obtain payment
from the Trust.
(c) Trustee may consult with legal counsel (who may also be
counsel for Company generally) with respect to any of its
duties or obligations hereunder.
(d) Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to
assist it in performing any of its duties or obligations
hereunder.
(e) Trustee shall have, without exclusion, all powers conferred
on Trustees by applicable law, unless expressly provided
otherwise herein, provided however, that if an insurance
policy is held as an asset of the Trust, Trustee shall
have no power to name a beneficiary of the policy other
than the Trust, to assign the policy (as distinct from
conversion of the policy to a different form) other than
to a successor Trustee.
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(f) However, notwithstanding the provisions of Section 8(e)
above, Trustee may loan to Company the proceeds of any
borrowing against an insurance policy held as an asset
of the Trust.
(g) Notwithstanding any powers granted to Trustee pursuant to
this Trust Agreement or to applicable law, Trustee shall
not have any power that could give this trust the
objective of carrying on a business and dividing the gains
therefrom, within the meaning of section 301.7701-2 of the
Procedures and Administrative Regulations promulgated
pursuant to the Internal Revenue Code.
Section 9. Compensation and Expenses of Trustee.
(a) Company shall pay all administrative and Trustee's fees and
expenses. If not so paid, the fees and expenses shall be
paid from the Trust.
Section 10. Resignation and Removal of Trustee.
(a) Trustee may resign at any time by written notice to Company,
which shall be effective 60 days after receipt of such notice
unless Company and Trustee agree otherwise.
(b) Trustee may be removed by Company on 30 days notice or upon
shorter notice accepted by Trustee
(c) Upon resignation or removal of Trustee and appointment of
a successor Trustee, all assets shall subsequently be
transferred to the successor Trustee. The transfer shall
be completed within 30 days after receipt of notice of
resignation, removal or transfer, unless Company extends
the time limit.
(d) If Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 11 hereof, by the
effective date or resignation or removal under paragraphs
(a) or (b) of this section. If no such appointment has
been made, Trustee may apply to a court of competent
jurisdiction for appointment of a successor or for
instructions. All expenses of Trustee in connection with
the proceeding shall be allowed as administrative
expenses of the Trust.
Section 11. Appointment of Successor
(a) If Trustee resigns or is removed in accordance with Section
10(a) or (b) hereof, Company may appoint any third party,
such as a bank trust department or other party that may be
granted corporate trustee powers under state law, as a
successor to replace Trustee upon resignation or removal.
The appointment shall be effective when accepted in writing
by the new Trustee, who shall have all of the rights and
powers of the former Trustee, including ownership rights
in the Trust assets. The former Trustee shall execute any
instrument necessary or reasonably requested by Company or
the successor Trustee to evidence the transfer.
<PAGE>
(b) The successor Trustee need not examine the records and acts
of any prior Trustee and may retain or dispose of existing
Trust assets, subject to Sections 7 and 8 hereof. The
successor Trustee shall not be responsible for and Company
shall indemnify and defend the successor Trustee from any
claim or liability resulting from any action or inaction
of any prior Trustee or from any other past event, or any
condition existing at the time it becomes successor
Trustee.
Section 12. Amendment or Termination.
(a) This Trust Agreement may be amended by a written instrument
executed by Trustee and Company. Notwithstanding the
foregoing, no such amendment shall conflict with the terms
of the Plan or shall make the Trust revocable after it
has become irrevocable in accordance with Section 1(b)
hereof.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled
to benefits pursuant to the terms of the Plan, unless sooner
revoked in accordance with Section 1(b) hereof. Upon
termination of the Trust, any assets remaining in the Trust
shall be returned to Company.
(c) Upon written approval of participants or beneficiaries
entitled to payment of benefits pursuant to the terms of
the Plan, Company may terminate this Trust prior to the
time all benefits payments under the Plan have been made.
All assets in the Trust at termination shall be returned
to Company.
Section 13. Miscellaneous.
(a) Any provision of this Trust Agreement prohibited by
law shall be ineffective to the extent of any such
prohibition, without invalidating the remaining
provisions hereof.
(b) Benefits payable to Plan participants and their
beneficiaries under this Trust Agreement may not be
anticipated, assigned (either at law or in equity),
alienated, pledged, encumbered or subjected to attachment,
garnishment, levy, execution or other legal or equitable
process.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin.
Section 14. Effective Date.
The effective date of this Trust Agreement shall be March 1, 1999.
<PAGE>
IN WITNESS WHEREOF, the Company and Trustee have caused this
Agreement to be duly executed on the date first above written.
MODINE MANUFACTURING COMPANY
By:
-----------------------------------
Title: D. R. Johnson, President &
Chief Executive Officer
Attest:
----------------------------------
Title: W. E. Pavlick, Secretary
MARSHALL AND ILSLEY TRUST COMPANY
By:
--------------------------------------
Title: M. P. Demet, Vice President
Attest:
----------------------------------
Title: F. H. Dupre, Vice President &
General Counsel
<PAGE>
EXHIBIT 99(b)
IMPORTANT FACTORS AND ASSUMPTIONS
REGARDING FORWARD-LOOKING STATEMENTS
These cautionary statements are being made pursuant to the provisions
of the Private Securities Litigation Reform Act of 1995 and with the
intention of obtaining the benefits of the "safe harbor" provisions
of the Act. Investors are cautioned that any forward-looking statements
made by Modine are not guarantees of future performance and that actual
results may differ materially from those in the forward-looking statements
as a result of various factors, including: customers' integration of
products currently being supplied by the Company; the success of Modine
or its competitors in obtaining the business of the customer base; the
ability to pass on increased costs to customers; variations in currency-
exchange rates in view of a large portion of the Company's business being
non-domestic; labor relations at Modine, its customers, and its suppliers,
which may affect the continuous supply of product; and the ability to
improve acquisitions' operations.
In making statements about Modine's fiscal-1997 operating results,
management has assumed relatively stable economic conditions in the
United States and worldwide, no unanticipated swings in the business
cycles affecting customer industries, and a reasonable legislative and
regulatory climate in those countries where Modine does business.
Readers are cautioned not to place undue reliance on Modine's forward-
looking statements, which speak only as of the date such statements
are made.
<PAGE>
