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10(A) DIRECTORS EMERITUS RETIREMENT PLAN
EXHIBIT 10(a)
MODINE MANUFACTURING COMPANY
DIRECTOR EMERITUS RETIREMENT PLAN
EFFECTIVE APRIL 1, 1992
MODINE MANUFACTURING COMPANY
DIRECTOR EMERITUS RETIREMENT PLAN
EFFECTIVE APRIL 1, 1992
WHEREAS, the Board of Directors of Modine Manufacturing
Company has determined it to be in the best interest of the
Company to establish a retirement plan for directors of the
Company.
NOW, THEREFORE, effective as of April 1, 1992, Modine
Manufacturing Company establishes this Modine Manufacturing
Company Director Emeritus Retirement Plan with respect to
directors of Modine who on or after April 1, 1992 retire, die or
otherwise terminate their service as a director of Modine.
ARTICLE I
DEFINITIONS
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For the purposes of this retirement plan, the following
words and phrases shall have the meanings indicated, unless a
different meaning is clearly required by the context:
1.1 The term "Act" means the Employee Retirement
Income Security Act of 1974.
1.2 The term "Actuarial Equivalent" means equality in
value of the aggregate amount expected to be received under
the Plan based on the discount rate and mortality
assumptions applicable, as defined below:
(a) Discount rate/assumption - For purposes of
------------------------
computing any adjustments called for under the
terms of the Plan for any benefit (when such
adjustment is not otherwise provided for in the
Plan), the discount rate assumption shall be the
same discount rate as then utilized for the
calculation of the present value of future benefits
as disclosed in the financial statement pension plan
footnotes of the Modine Manufacturing Company annual
report.
(b) Mortality Assumption - For purposes of computing
--------------------
any adjustments called for under the terms of the
Plan for any benefit (when such adjustment is not
otherwise provided for in the Plan), the mortality
assumption shall be based on the 1971 Group Annuity
Mortality Table.
1.3 The term "Beneficiary" means the person or
persons designated by a Director or former Director as his
beneficiary as provided in Section 3.5.
1.4 The term "Board" or "Board of Directors" means
the current Board of Directors of the Company.
1.5 The term "Company" or "Modine" means Modine
Manufacturing Company, a Wisconsin corporation, its
corporate successors, and the surviving corporation
resulting from any merger or consolidation of Modine
Manufacturing Company with any other company or companies.
1.6 A "Director" means any person who is or becomes a
director of Modine on or after April 1, 1992 regardless of
whether such person is also an employee of Modine on or
after such date.
1.7 The "Effective Date" means April 1, 1992.
1.8 The "Plan" means this Modine Manufacturing
Company Director Emeritus Retirement Plan with all
amendments and supplements hereafter made.
1.9 The "Plan Year" means the twelve-month period
commencing April 1, 1992 and each April 1 thereafter.
1.10 "Retirement Benefit" means the amount of
retirement benefit payable annually to a retired Director
under the terms of the Plan.
1.11 "Surviving Spouse" shall mean and be limited to the
person who (i) was the Director's or former Director's spouse
at the time of his death, and (ii) was his spouse for at
least one full year immediately prior to the date of his
death.
1.12 "Retirement Date" means with respect to any
Director, the last day of the calendar quarter in which he
retires from his service as a Director of Modine.
1.13 "Survivor Benefit" means the amount of survivor
benefit payable annually to the Surviving Spouse or
Beneficiary of a former Director under the terms of the Plan.
1.14 "Termination Date" means with respect to any
Director, the date upon which he terminates his service as
a director of Modine.
ARTICLE II
RETIREMENT BENEFIT
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2.1 Eligibility. Each person who is or becomes a
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Director of Modine on or after April 1, 1992 and whose
service as a Director with Modine ceases on or before his
Retirement Date shall be eligible for a Retirement Benefit.
2.2 Benefit Amount. The amount of the Retirement Benefit
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for a Director shall be an amount equal to the annualized rate at
which Directors are being paid for their services to the Company
as Directors (including any Board meeting fees but excluding any
applicable committee meeting fees) as in effect at the time such
Director ceases his service as a Director.
2.3 Benefit Payment. The Retirement Benefit shall be
---------------
paid to a retired Director in four equal quarterly payments
commencing with the first day of the first calendar quarter
following the calendar quarter in which his Retirement Date
occurs and shall be payable on the first day of each
succeeding calendar quarter until the earlier of: (i) his
death; or (ii) the period of time with respect to which a
Retirement Benefit is paid under the Plan equals the period
of time with respect to which the retired Director served
as a Director of the Company.
ARTICLE III
SURVIVOR BENEFIT
----------------
3.1 Eligibility.
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(a) If a deceased Director, at the time of
death, had not commenced receiving Retirement
Benefit payments under the Plan, such deceased
Director's Surviving Spouse or Beneficiary, as
determined pursuant to Section 3.5 of the Plan,
shall be eligible to receive a Survivor Benefit
as provided in Sections 3.2(a) and 3.3(a) of the
Plan.
(b) If a deceased former Director, prior to the
time of death, had ceased his services as a
Director and at the time of death was receiving or
eligible to receive Retirement Benefit payments
under the Plan, such deceased former Director's
Surviving Spouse or Beneficiary, as determined
pursuant to Section 3.5 of the Plan, shall be
eligible to receive a Survivor Benefit as provided
in Sections 3.2(b) and 3.3(b) of the Plan.
3.2 Benefit Amount.
--------------
(a) The amount of Survivor Benefit payable to a
deceased Director's Surviving Spouse or Beneficiary
who is eligible for such benefit pursuant to Section
3.1(a) of the Plan shall be equal to the amount of
Retirement Benefit that would have been paid to the
Director determined in accordance with Section 2.2
of the Plan assuming he had not died but his
services as a Director had ceased as of the date of
his death.
(b) The amount of Survivor Benefit payable to a
deceased former Director's Surviving Spouse or
Beneficiary who is eligible for such benefit
pursuant to Section 3.1(b) of the Plan shall be
equal to the amount of Retirement Benefit that
was being paid, or was due to be paid, to the
deceased former Director at the time of his
death.
3.3 Benefit Payments.
----------------
(a) A Surviving Benefit payable to a deceased
Director's Surviving Spouse or Beneficiary
pursuant to Section 3.1(a) of the Plan shall be
paid in four equal payments commencing with the
first day of the first quarter following the
calendar quarter in which the Director's death
occurred and shall be payable on the first day of
each succeeding calendar quarter until the period
of time with respect to which the Surviving
Spouse or Beneficiary is paid a Survivor Benefit
under the Plan equals the period of time with
respect to which the retired Director served as a
Director of the Company.
(b) A Survivor benefit payable to a deceased
former Director's Surviving Spouse or Beneficiary
pursuant to Section 3.1(b) of the Plan shall be
paid in four equal payments commencing with the
first day of the first quarter following the
calendar quarter in which the former Director's
death occurred and shall be payable on the first
day of each succeeding calendar quarter until the
period of time with respect to which the
Surviving Spouse or Beneficiary is paid a
Survivor Benefit under the Plan when combined
with the period of time with respect to which the
deceased former Director was paid a retirement
benefit pursuant to Section 2.3 of the Plan
equals the period of time with respect to which
the deceased former Director served as a Director
of the Company.
3.4 Death of Surviving Spouse or Beneficiary. In the
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event a Surviving Spouse or Beneficiary receiving Survivor
Benefit payments under the Plan dies prior to receiving the
last Survivor Benefit payment to which such person is
entitled pursuant to Section 3.3(a) or 3.3(b) of the plan,
the estate of such deceased Surviving Spouse or Beneficiary
shall be paid in a single lump sum payment the actuarial
equivalent present value of an amount equal to the total of
the quarterly payments remaining to be paid at the time of
such Surviving Spouse's or Beneficiary's death. The lump
sum payment provided pursuant to this Section 3.4 shall be
paid on the first day of the first calendar quarter
following the death of such Surviving Spouse or
Beneficiary, or as soon thereafter as administratively
practicable.
3.5 Determination of Person Entitled to Receive
-------------------------------------------
Survivor Benefit. In the event of the death of a Director
----------------
or former Director under circumstances under which a
Survivor Benefit is payable under Section 3.1(a) or 3.1(b)
of the Plan, if such deceased Director or deceased former
Director is survived by a Surviving Spouse, such Survivor
Benefit will be paid to such Surviving Spouse unless the
deceased Director or deceased former Director not less than
10 days prior to his death has filed with Modine, as plan
administrator, a designation, in form and substance
satisfactory to Modine, designating a person or persons
other than his Surviving Spouse as his Beneficiary for
receiving Survivor Benefit payments under the Plan.
In the event a deceased Director or deceased former
Director is not survived by a Surviving Spouse and has not
designated a Beneficiary or no person designated as his
Beneficiary has survived the deceased Director or deceased
former Director, any Survivor Benefit payable pursuant to
Section 3.2(a) or 3.2(b) of the Plan shall be payable to
the estate of such deceased Director or deceased former
Director in a single lump sum on the first day of the first
calendar quarter following the death of such deceased
Director or deceased former Director, or as soon thereafter
as administratively practicable.
ARTICLE IV
GENERAL PROVISIONS REGARDING BENEFITS
-------------------------------------
4.1 Restriction on Alienation of Retirement Benefits.
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(a) Except as provided in Section 4.1(b) of the
Plan, the rights and interests of any person
under the Plan shall not be subject in any manner
to sale, transfer, encumbrance, assignment,
pledge, or alienation of any kind; nor may such
rights or interests be resorted to, either
voluntarily or involuntarily, for the
satisfaction of the debts of, or other
obligations or claims against, such person,
including claims for alimony, support, separate
maintenance and claims in bankruptcy proceedings.
No such person shall have power in any manner to
sell, transfer, encumber, assign, pledge or
alienate any of his interests or rights under the
Plan and any attempt to do so shall be void.
(b) Notwithstanding the provisions of Section
4.1(a) of the Plan, all or any part of the
benefit of a Director under the Plan shall be
subject to and payable in accordance with the
applicable requirements of any Qualified Domestic
Relations Order, as that term is defined in
Section 206(d)(3) of the Employee Retirement
Income Security Act of 1974 (hereinafter referred
to in the Plan as the "Act"), and Modine shall
provide for payment in accordance with such order
and Section and all regulations promulgated under
such Section. All such payments pursuant to a
Qualified Domestic Relations Order shall be
subject to reasonable rules and regulations
promulgated by Modine; provided that such rules
and regulations are consistent with Section
206(d)(3) of the Act. If prior to the
commencement of payment of a Director's
Retirement Benefit, any amount attributable to
his Retirement Benefit is allocated for, or paid
to, an alternate payee or payees pursuant to a
Qualified Domestic Relations Order, the amount of
his Retirement Benefit shall be reduced by an
amount equal to the Actuarial Equivalent of the
amount so paid or allocated to an alternate payee
or payees.
4.2 Facility of Payment. In the event that it should
-------------------
be found that any individual to whom an amount is payable
under the Plan is incapable of attending to his financial
affairs because of any mental or physical conditions,
including the infirmities of advanced age, such amount
(unless prior claim therefor shall have been made by a duly
qualified guardian or other legal representative) may, in
the discretion of Modine, be paid to another person for the
use or benefit of the individual found incapable of
attending to his financial affairs or in satisfaction of
legal obligations incurred by or on behalf of such
individual. Any such payment made in accordance with the
provisions of this Section 4.2 of the Plan shall be a
complete discharge of liability therefor under the Plan.
4.3 Nonforfeitability of Benefits. Except as
-----------------------------
provided in Section 8.2 of the Plan, a Director's right to
a retirement benefit under the Plan shall be nonforfeitable
upon and after his Retirement Date.
4.4 Payment of Benefits. The benefits provided under
-------------------
the Plan shall be paid solely from the general assets of
Modine and Modine shall not have any obligation to
establish or maintain a separate fund or funds to provide
for the payment of benefits.
4.5 Application of Certain Plan Provisions. For
--------------------------------------
purposes of the general administrative provisions of the
Plan, a Director's former spouse, a former Director's
former spouse, a deceased Director's Surviving Spouse or
Beneficiary, or a deceased former Director's Surviving
Spouse or Beneficiary shall be treated as any other person
entitled to receive benefits under the Plan upon any
termination of the plan, and any such former spouse,
Surviving Spouse or Beneficiary who has an interest under
the Plan at the time of such termination, which does not
cease by reason thereof, shall be deemed to be a retired
Director for all purposes of the Plan.
4.6 Service of Process. The General Counsel of
------------------
Modine Manufacturing Company is hereby designated as the
agent for service of legal process on the Plan.
4.7 Governing Law. The Plan shall be interpreted,
-------------
administered and enforced in accordance with the laws of
the State of Wisconsin, and the rights of Directors, former
Directors, former spouses, Surviving Spouses, Beneficiaries
and all other persons shall be determined in accordance
therewith, provided, however, that to the extent federal
law is applicable, such federal law shall apply.
4.8 Titles. Titles are provided in the Plan for
------
convenience of reference only and are not to serve as a
basis for interpretation or construction of the Plan.
4.9 References. Unless the context clearly indicates
----------
to the contrary, a reference to a Plan provision, statute,
regulation or document shall be construed as referring to
any subsequently enacted, adopted or executed counterpart.
4.10 Pronouns. Use of any form of the masculine
--------
pronoun in this Plan shall, when the circumstances make it
appropriate, be deemed to include the equivalent form of
the female pronoun.
ARTICLE V
ADMINISTRATION
--------------
5.1 Authority of Modine. Modine, which shall be
-------------------
administrator, shall have all the powers, authorities and
responsibilities expressly conferred upon herein and
further shall have the sole right to interpret and construe
the Plan, and to determine any disputes arising thereunder;
subject, however, to the provisions of Section 5.3 and 5.4
of the Plan. In exercising such powers and authorities and
in fulfilling such responsibilities, Modine shall at all
times exercise good faith, apply standards of uniform
application and refrain from arbitrary action. Modine may
employ such attorneys, agents and accountants as it may
deem necessary or advisable to assist it in carrying out
its duties hereunder. Modine, by action of the Board of
Directors, may designate a person or persons other than
Modine to carry out any of such powers, authorities or
responsibilities.
5.2 Action of Modine. Any of Modine's powers,
----------------
authorities or responsibilities for the operation and
administration of the Plan which have not been delegated in
accordance with Section 5.1 of the Plan may be exercised by
a majority of the members of the Board of Directors of
Modine, either by a vote at a meeting, or in writing
without a meeting. All notices, advice, directions,
certifications, approvals and instructions required or
authorized to be given by Modine under the Plan shall be in
writing and signed by either: (i) a majority of the
members of the Board of Directors of Modine, or by such
member or members as may be designated by an instrument in
writing, signed by all members thereof, as having authority
to execute such documents on his behalf; or (ii) a person
who becomes authorized to act for Modine in accordance with
the provisions of Section 5.1 of the Plan. Subject to the
provisions of Section 5.3 of the Plan, any action taken by
Modine which is authorized, permitted or required under the
Plan shall be final and binding upon Modine, and all
persons who claim an interest under the Plan.
5.3 Denial of claims. Whenever Modine denies, whether
----------------
in whole or in part, a claim for benefits filed by any person
(hereinafter referred to in this Article as "Claimant"), Modine
shall transmit a written notice setting forth, in a manner
calculated to be understood by the Claimant, a statement of
the specific reasons for the denial of the claim, reference to
the specific Plan provisions on which the denial is based, a
description of any additional material or information necessary
to perfect the claim (including an explanation of why such
material or information is necessary) and an explanation of the
Plan's claims review procedure as set forth in Section 5.4 of
the Plan. In addition, the written notice shall contain the
date on which such notice was sent and a statement advising
the Claimant that within 60 days of the date on which he
received such notice, he may have Modine review its decision
denying the Claimant's claim for benefits.
5.4 Claims Review Procedure. Within 60 days of the
-----------------------
date on which the notice of denial of claim is received by
the Claimant, the Claimant or his authorized representative
may request that the claim denial be reviewed by filing
with Modine a written request therefor, which request shall
contain the following information:
(a) The date on which the notice of denial of claim
was received by the Claimant;
(b) The date on which the Claimant's request for review
was filed with Modine; provided, however, that the
date on which the Claimant's request for review was
in fact filed with Modine shall control in the event
the date of actual filing is later than the date
started by the Claimant pursuant to this Section 5.4;
(c) The specific portions of the denial of his claim
which the Claimant requests Modine to review;
(d) A statement by the Claimant setting forth
the basis upon which he believes Modine should
reverse its previous denial of his claim for
benefits and accept his claim as made; and
(e) Any written material (including as exhibits)
which the Claimant desires Modine to examine in
its consideration of his position as stated
pursuant to Section 5.4(d) of the Plan.
Within 60 days of the date determined pursuant to
Section 5.4(b) of the Plan, Modine shall conduct a full and
fair review of its decision denying the Claimant's claim for
benefits. Within ten days following the date of such review,
Modine shall send to the Claimant its written decision setting
forth, in a manner calculated to be understood by the Claimant,
a statement of the specific reasons for its decision, including
reference to the specific Section of the Plan relied upon.
5.5 Indemnification. In addition to whatever rights
---------------
of indemnification the members of the Board of Directors of
Modine, or any other person or persons to whom any powers,
authorities or responsibilities of Modine are allocated or
delegated pursuant to Section 5.1(b) of the Plan may be
entitled under the Certificate of Incorporation or by-laws of
Modine, including any amendments thereto, under any provision
of law, or under any other agreement, Modine shall satisfy any
liability actually and reasonably incurred by any such member
or such other person or persons, including expenses, attorney's
fees, judgments, fines and amounts paid in settlement, in
connection with any threatened, pending or completed action suit
or proceeding which is related to the exercise or failure to
exercise by such member or such other person or persons, of any
of the powers, authorities, responsibilities or discretion of
Modine as provided under the Plan, or reasonably believed by
such members or such other person or persons to be provided
thereunder, and any action taken by such member or such person
or persons in connection therewith.
ARTICLE VI
AMENDMENT AND DURATION
----------------------
6.1 Amendment and Termination. Modine reserves the right
-------------------------
to amend the Plan, or to terminate the Plan at any time and from
time to time by resolution of the Board of Directors of Modine and
all persons claiming any interest under the Plan shall be bound
thereby; provided, however, that no amendment shall be adopted,
the effect of which would directly or indirectly (i) divest the
interest of any Director, or any person entitled to receive a
benefit under a Director, in any amount that any of them would have
received had the Director's services as a Director terminated
immediately prior to the effective date of such amendment, or
(ii) divest the interest of any former Director or any person
entitled to receive a benefit under a former or deceased former
Director, in any amount that any of them would otherwise have
received.
6.2 Termination. In the event of a termination of the Plan,
-----------
the benefit interests of all Directors, former Directors, deceased
former Directors, and each person or persons entitled to or receiving
a benefit under or through them shall be determined and paid by Modine
in accordance with the provisions of this Section 6.2.
For purposes of this Section 6.2, the amount to be paid to
any individual hereunder shall be the Actuarial Equivalent of all of
the benefits payable under the Plan to such individual. Following
the determination of the amount to be paid to any individual
pursuant to this Section 6.2, such amount shall be paid in a single
lump sum payment within 10 days after such determination.
Notwithstanding anything to the contrary contained herein,
in no event will the amount to be paid pursuant to this Section 6.2
be determined and paid later than 30 days after the effective
termination date of the Plan.
6.3 Immediate Vesting Upon Termination. Upon termination of
----------------------------------
the Plan, pursuant to Sections 6.1 and 6.2 of the Plan, the rights
of all affected Directors, former Directors, deceased former
Directors, and persons claiming a benefit under or through them
to benefits accrued to the date of such termination, shall be fully
vested and nonforfeitable.
ARTICLE VII
CHANGE OF CONTROL
-----------------
7.1 Termination Due to Change in Control. The provisions of
------------------------------------
Article VI notwithstanding, in the event of a Change in Control,
the plan shall automatically terminate without any further action.
7.2 Lump Sum Payment of Benefits. In the event of the
----------------------------
termination of the Plan pursuant to Section 7.1 of the Plan,
the benefit interest of all Directors, former Directors,
deceased former Directors, and each person or persons entitled
to or receiving a benefit under or through them, shall be
determined and paid by Modine in accordance with the provisions
of this Section 7.2.
For purposes of this Section 7.2, the amount to be paid
to any individual hereunder shall be an amount equal to the total
of all quarterly benefit payments which otherwise would be payable
under the Plan to such individual. Following the determination of
the amount to be paid to any individual pursuant to this Section 7.2,
such amount shall be paid in a single lump sum payment within 10 days
after such determination.
Notwithstanding anything to the contrary contained herein,
in no event will the amount to be paid pursuant to this Section 7.2
be determined and paid later than 30 days after the effective
termination date of the Plan pursuant to Section 7.1 of the Plan.
7.3 Immediate Vesting Upon Termination. Upon termination of
----------------------------------
the Plan, pursuant to Sections 7.1 and 7.2 of the Plan, the rights of
all affected Directors, former directors, deceased former Directors,
and persons claiming a benefit under or through them, to benefits
accrued to the date of such termination, shall be fully vested and
nonforfeitable.
7.4 Change in Control Defined. For purposes of the Plan, a
-------------------------
"Change in Control" shall mean any of the following events:
(a) The acquisition (other than from the Company) by
any person (as such term is defined in Sections
13(d) or 14(d) of the Securities Exchange Act of
1934, as amended (the "1934" Act)) of beneficial
ownership (within the meaning of Rule 13d-3
promulgated under the 1934 Act) of thirty-five
percent (35%) or more of the combined voting
power of the Company's then outstanding voting
securities; or
(b) The individuals who, as of April 1, 1992,
are members of the Board of Directors of Modine
(the "Incumbent Board"), cease for any reason to
constitute a majority of the board, unless the
election, or nomination for election by the
Company's stockholders, of any new director was
approved by a vote of a majority of the Incumbent
Board, and such new director shall, for purposes
of this Agreement, be considered as a member of
the Incumbent Board; or
(c) Approval by stockholders of the Company of
(i) a merger or consolidation involving the
Company if the stockholders of the Company,
immediately before such merger or consolidation,
do not, as a result of such merger or
consolidation, own, directly or indirectly, more
than sixty-five percent (65%) of the combined
voting power of the then outstanding voting
securities of the Company resulting from such
merger or consolidation in substantially the same
proportion as their ownership of the combined
voting power of the voting securities of the
Company outstanding immediately before such
merger or consolidation, or (ii) a complete
liquidation or dissolution of the Company or an
agreement for the sale or other disposition of
all or substantially all of the assets of the
Company.
Notwithstanding the foregoing, a Change in
Control shall not be deemed to occur pursuant to Section
7.4(a) of the Plan, solely because thirty-five percent
(35%) or more of the combined voting power of the Company's
then outstanding securities is acquired by (i) a trustee or
other fiduciary holding securities under one or more
employee benefit plans maintained by the Company or any of
its subsidiaries or (ii) any corporation which, immediately
prior to such acquisition, is owned directly or indirectly
by the stockholders of the Company in the same proportion
as their ownership of stock in the Company immediately
prior to such acquisition.
ARTICLE VIII
MISCELLANEOUS
-------------
8.1 Services.
--------
(a) Each former Director who is receiving a
Retirement Benefit under the Plan shall, at
reasonable times and places as requested by any
then current Director of the Company, be
available for consultation concerning the
business and affairs of the Company. Each such
former Director shall attend such meeting or
meetings of the Board of Directors as any person,
who at the time is a member of the Chief
Executive Office of the Company, requests.
(b) The foregoing notwithstanding, it is
understood that a former Director providing
service pursuant to Section 8.1(a) shall be
reimbursed by the Company for any and all
reasonable expenses which are incurred in
providing the requested services or attending any
meeting of the Board as requested.
(c) It is understood that any former Director
while attending any meeting of the Board, since
he is not a duly elected and qualified Director
of the Company, shall not vote nor be counted in
determining a quorum at any such meeting.
8.2 Non-Competition.
---------------
(a) Notwithstanding anything to the contrary
contained in the Plan, in the event a former
Director irrespective of whether he is receiving
Retirement Benefit payments under the Plan
engages directly or indirectly in activities
which compete in any manner with the business or
activities of the Company, the right of such
former Director to receive any Retirement Benefit
payments under the Plan and the right of any
other person to receive any benefit payments
under the Plan shall be immediately terminated
and no Retirement Benefit or other benefit
payments under the Plan shall be paid thereafter
to the former Director or to any person who
claims a benefit under or through him.
(b) For purposes of Section 8.2(a), a former
Director shall not be deemed to have engaged in
competition with the business or activities of
the Company if such former Director's sole
relationship with a competitor of the Company
consists of his holding, directly or indirectly,
an equity interest in such other company not
greater than two percent (2%) of such other
company's outstanding securities.
8.3 Fraud or Other Criminal Activity. Notwithstanding anything
--------------------------------
to the contrary contained in the Plan, in the event a Director or
former Director, irrespective of whether he is receiving Retirement
Benefit payments under the Plan, is convicted of fraud or of a
felony (and with respect to such conviction such person's right to
file an appeal after conviction has expired, or if such person has
filed an appeal after conviction, the appellate court fails to
reverse the conviction) and such fraud or felony is determined by
a majority of the members of the Board of Directors then in office
(excluding, if applicable, the Director guilty of such fraud or
felony) to have damaged Modine, the right of such Director or former
Director to receive any Retirement Benefit payments under the plan
and the right of any other person to receive any benefit payments
under the Plan under such Director or former Director shall be
immediately terminated and no Retirement Benefit or other benefit
payments under the plan shall be paid thereafter to the Director,
former Director or any person who claims a benefit under or through
such Director or former Director. For purposes of this Section
8.3 of the plan, any determination by the members of the Board of
Directors that any fraud or felony of a Director or former Director
has damaged Modine shall be conclusive and binding upon the Director
or former Director and any person who claims a benefit under or
through him.