EXHIBIT 1.1A
CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT (this "Agreement"), dated as of January
31, 2005, by and among Modine Manufacturing Company, a Wisconsin
corporation
("Modine"), Modine, Inc., a Delaware corporation and a wholly owned
subsidiary
of Modine (together with Modine, the "Contributors"), Modine
Aftermarket
Holdings, Inc., a North Carolina corporation and a wholly owned
subsidiary of
Modine ("Newco"), and Transpro, Inc., a Delaware corporation
("Transpro") (each,
a "Party" or together, "Parties").
RECITALS
1. The Aftermarket Business is currently conducted, directly or
through one
or more subsidiaries, by the Contributors and Newco.
2. The boards of directors of the Contributors and Newco have each
determined that it would be in the best interests of their
respective
corporations and shareholders to separate the Aftermarket Business
from Modine
and that it would be appropriate and desirable for the Contributors
to
contribute and transfer to Newco, and for Newco to receive and
assume, all of
the assets, properties, rights, interests and liabilities of Modine
and its
controlled Affiliates associated with the Aftermarket Business on
the terms set
forth in this Agreement.
3. Simultaneously with the execution and delivery of this
Agreement, (a)
Modine, Newco and Transpro are entering into an Agreement and Plan
of Merger
(the "Merger Agreement"), pursuant to which (i) on the Closing Date
but prior to
the Effective Time, Modine will distribute to the shareholders of
Modine all of
the outstanding shares of Newco on a pro rata basis (the "Spin
Off") and (ii)
immediately following the Spin Off, Newco will merge with and into
Transpro,
with Transpro being the surviving corporation, all on the terms and
subject to
the conditions set forth in the Merger Agreement (the "Merger") and
(b) Modine
and Transpro are entering into an OEM Acquisition Agreement (the
"OEM
Acquisition Agreement"), pursuant to which prior to the Effective
Time Modine
will purchase from Transpro, and Transpro will sell and deliver to
Modine, all
of the outstanding shares of capital stock of G&O Manufacturing
Company, Inc., a
Delaware corporation and a wholly owned subsidiary of Transpro (the
"OEM Stock
Sale").
4. It is intended that, for federal income tax purposes, (i) the
Contribution and the Spin Off are tax-free to Modine and to the
shareholders of
Modine under Sections 355 and 368 and related provisions of the
Internal Revenue
Code, as amended (the "Code"), and (ii) the Merger qualifies as a
tax-free
reorganization described in Section 368 and related provisions of
the Code.
Accordingly, the parties agree as follows:
I. CERTAIN DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere herein,
as used
in this Agreement, the following terms have the meanings specified
below when
used in this Agreement with initial capital letters:
"Action" means any controversy, claim, action, litigation,
arbitration,
mediation or any other proceeding by or before any Governmental
Entity,
arbitrator, mediator or other Person acting in a dispute resolution
capacity, or
any investigation, subpoena or demand preliminary to any of the
foregoing.
"Affiliate" means, with respect to a Person, another Person that
directly,
or indirectly through one or more intermediaries, controls, or is
controlled by,
or is under common control with, such Person.
"Aftermarket Assets" means the assets, properties, rights and
interests of
the Contributors and any of their Subsidiaries that principally
relate to or are
used principally in the Aftermarket Business (other than Excluded
Assets),
wherever situated, including without limitation:
(a) the Books and Records;
(b) all Contracts (other than to the extent that such Contracts
relate
to Excluded Assets or Excluded Liabilities) of the Contributors or
their
Subsidiaries relating to the Aftermarket Business;
(c) the Equipment;
(d) the Trademarks;
(e) goodwill of the Contributors related to the Aftermarket
Business,
but not otherwise specifically identified herein;
(f) the Aftermarket Real Property;
(g) the Inventory;
(h) the Permits;
(i) the Domain Names;
(j) capital stock of Nederlandse Radiateuren Fabriek B.V. ("NRF"),
Manufacturera Mexicana de Partes S.A. de C.V. ("MexPar") and Modine
National
Sales Ltd., together with their respective assets;
(k) the Technology;
(l) all accounts and notes receivable (billed and unbilled) of the
Aftermarket Business as of the Closing;
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(m) all prepaid claims and other prepaid expense items and deferred
charges, credits, advance payments and security and other deposits
made by the
Contributors or any of their Subsidiaries relating to the conduct
of the
Aftermarket Business;
(n) all rights of the Contributors or any of their Subsidiaries to
manufacturers' warranties and indemnities with respect to any
Aftermarket Asset;
(o) all bank accounts and bank account numbers, telephone and
facsimile
numbers and electronic mail addresses, in each case, used or held
for use by the
Contributors or any of their Subsidiaries principally in the
Aftermarket
Business;
(p) all rights of the Contributors or any of their Subsidiaries
pertaining to any causes of action, lawsuits, judgments, claims,
demands,
counterclaims, set-offs or defenses they may have with respect to
the
Aftermarket Assets or Aftermarket Liabilities, except to the extent
relating to
the Excluded Assets or Excluded Liabilities; and
(q) all other assets, properties and rights of every kind and
nature
owned by the Contributors or any of their Subsidiaries or in which
such Persons
have an interest on the Closing Date (but only to the extent of
such interest),
known or unknown, fixed or unfixed, accrued, absolute, contingent
or otherwise,
whether or not specifically referred to in this Agreement, that in
each case
relate principally to the Aftermarket Business or are of the nature
set forth in
the Aftermarket Audited Financial Statements or the financial
statements
provided to Transpro pursuant to Section 3.5(a) of the Merger
Agreement (the
"Latest Aftermarket Financial Statements").
Notwithstanding the foregoing, the Aftermarket Assets do not
include any of
the Excluded Assets.
"Aftermarket Audited Financial Statements" means the audited
financial
statements of the Aftermarket Business as of and for the period
ended March 31,
2004 attached to Section 4.9(b)-1 of the Modine Disclosure Schedule
delivered
pursuant to the Merger Agreement.
"Aftermarket Business" means the design, manufacturing, marketing,
packaging and distributing of thermal management products and
systems to be
supplied as replacement parts through the vehicular, off-highway
and industrial
aftermarkets, including the sale by NRF and MexPar of products to
certain
original equipment manufacturers for use in heavy duty
applications.
"Aftermarket Employees" means all of the Contributors' or their
Subsidiaries' employees, officers or consultants that are involved
in the
Aftermarket Business, as listed on Schedule 1.1A.
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"Aftermarket Liabilities" means the following liabilities or
obligations, whether known or unknown, accrued or contingent,
direct or
indirect, arising from the operation of the Aftermarket Business or
ownership of
the Aftermarket Assets prior to or following the Closing Date:
(a) all liabilities for product liability and product warranty for
products of the Aftermarket Business;
(b) except as set forth in Section 3.4 of the Merger Agreement, all
Environmental Costs and Liabilities to the extent arising out of or
related to
the Aftermarket Business;
(c) all liabilities for income Taxes arising out of or related to
the
(i) operation of the Aftermarket Business after the Closing Date or
(ii)
ownership of the Aftermarket Assets after the Closing Date;
(d) all liabilities for Taxes (other than income Taxes) arising out
of
or related to the (i) operation of the Aftermarket Business or (ii)
ownership of
the Aftermarket Assets, whether before or after the Closing Date;
(e) all liabilities pursuant to the Contracts;
(f) all liabilities for returns of products of the Aftermarket
Business
shipped prior to the Closing but returned after the Closing;
(g) a portion of the repayment obligations under Modine's line of
credit, as and to the extent described in Section 6.25 of the
Merger Agreement;
(h) all obligations and liabilities arising out of current and
future
Actions against any of the Contributors to the extent relating to
the
Aftermarket Business, except to the extent that such Actions arise
out of or are
related to assets or liabilities that are not Aftermarket Assets or
Aftermarket
Liabilities or that the Contributors have agreed to discharge
pursuant to this
Agreement or any Ancillary Agreement;
(i) liabilities or obligations of the Contributors and any of their
Subsidiaries with respect to Aftermarket Employees pursuant to any
Assumed
Benefit Plans; and
(j) all other liabilities and obligations of every kind and nature
of
the Contributors or any of their Subsidiaries (other than for
income Taxes),
known or unknown, fixed or unfixed, accrued, absolute, contingent
or otherwise,
whether or not specifically referred to in this Agreement, that in
each case
relate principally to the Aftermarket Business and are of the
nature set forth
in the Aftermarket Audited Financial Statements, less payments
thereon and
discharges thereof prior to the Closing Date.
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Notwithstanding the foregoing, the Aftermarket Liabilities do not
include the Excluded Liabilities.
"Aftermarket Real Property" means all right, title and interest in
or to
the improved and unimproved land listed or described on Schedule
1.1B, and all
buildings, structures, erections, improvements, appurtenances, and
fixtures
situated on or forming part of such land, together with all
privileges,
easements and rights-of-way related thereto.
"Aftermarket Transition Services Agreement" means the Aftermarket
Transition Services Agreement between Modine and Newco in the form
attached as
Exhibit 1.1I to the Merger Agreement.
"Ancillary Agreements" means the agreements included as "Ancillary
Agreements" in the Merger Agreement, but excluding this Agreement
and including
the Merger Agreement and the Tax Sharing Agreement.
"Books and Records" means all of the books, records, electronically
stored
data and other documents and any copyrights related thereto
(including customer
and supplier lists and files, distribution lists, mailing lists,
sales
materials, operating, production and other manuals, equipment
maintenance and
operating manuals, correspondence with customers, suppliers,
employees or
Governmental Entities, plans, files, specifications, process
drawings, computer
programs, data and information, manufacturing and quality control
records and
procedures, research and development files and advertising and
promotional
materials) related primarily to the Aftermarket Assets, the
Aftermarket
Liabilities or the Aftermarket Business that are held by the
Contributors or any
of their Subsidiaries and existing on the Closing Date.
"Business Day" means any day on which commercial banks in New York,
New
York are not required or authorized to be closed by Law or
executive order.
"Closing" means the closing of the transactions contemplated by
this
Agreement in accordance with the terms and conditions set forth in
the Merger
Agreement and this Agreement.
"Closing Date" means the date on which the Closing occurs, as
provided in
the Merger Agreement.
"Contracts" means any note, bond, mortgage, indenture, license,
franchise,
permit, agreement, contract, commitment, understanding, lease,
franchise
agreement or other legally binding instrument or legal obligation
of any kind,
whether written or oral (excluding rights and obligations of the
Contributors or
their Subsidiaries under Intercompany Contracts, this Agreement and
the
Ancillary Agreements), of the Contributors or any of their
Subsidiaries relating
principally to the Aftermarket Business. The Contracts in effect as
of the date
of execution of this Agreement, other than those made in the
ordinary course of
business, are set forth on Schedule 1.1C, which Schedule 1.1C will
be updated by
the Contributors at the Closing to reflect the Contracts at that
time.
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"Domain Names" means those domain names used by the Contributors or
any of
their Subsidiaries exclusively for the Aftermarket Business as
listed on
Schedule 1.1D, and the look and feel of the corresponding Internet
sites as
currently owned by the Contributors or any of their Subsidiaries
and used in the
operation of the Aftermarket Business.
"Effective Time" means the time at which the Merger becomes
effective
pursuant to the terms of the Merger Agreement.
"Environment" means any land, soil, substrata, groundwater, surface
water,
drinking water, sediment, air or terrestrial or aquatic biota.
"Environmental Laws" means all Laws (including the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, 42
U.S.C.A. ss.ss. 9601, et seq., and the rules, regulations and
Orders promulgated
thereunder) relating to the protection of the Environment,
including Laws
relating to Environmental Releases or threatened Environmental
Releases of
Hazardous Materials, or otherwise relating to the manufacture,
processing,
distribution, use, treatment, storage, disposal, transport or
handling of
Hazardous Materials.
"Environmental Matter" means any matter arising out of, relating
to, or
resulting from, pollution, protection of the environment or human
health or
safety, health or safety of employees, sanitation, nuisance,
emissions,
discharges, or releases or threatened releases of Hazardous
Substances, or
otherwise arising out of, resulting from or relating to the
generation,
manufacture, storage, management, transportation, treatment or
disposal of
Hazardous Substances or to the application of Environmental Laws to
the
Aftermarket Business.
"Environmental Release" means any release, spill, emission,
leaking,
pumping, injection, deposit, disposal, discharge, dispersal,
leaching or
migration into the atmosphere, soil, surface water, sewer system,
groundwater or
land.
"Environmental Costs and Liabilities" means any and all losses,
liabilities, obligations, damages, fines, penalties, judgments,
actions, claims,
costs and expenses (including fees, disbursements and expenses of
legal counsel,
experts, engineers and consultants and the costs of investigation
and
feasibility studies and remedial action) arising from or under any
Environmental
Law, any Order or Contract of or with any Governmental Entity or
other Person,
or any Environmental Matter.
"Equipment" means all plants, machinery, equipment, furniture,
fixtures,
computer hardware, vehicles, tools, supplies, leasehold
improvements and, except
for the Inventory, all other tangible personal property owned by
the
Contributors or any of their Subsidiaries and used principally in
the conduct of
the Aftermarket Business.
"Excluded Assets" means the following assets:
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(a) insurance policies of the Contributors and their Affiliates
pertaining to the Aftermarket Assets and all rights of the
Contributors and
their Affiliates of every nature and description under or arising
out of such
insurance policies;
(b) all rights which the Contributors retain under the Ancillary
Agreements;
(c) claims for refunds of Taxes paid by the Contributors and/or
their
Affiliates arising prior to the Closing Date and relating to
periods prior to
Closing;
(d) any Intercompany Contracts; and
(e) the Proprietary Information Technology.
"Excluded Liabilities" means all liabilities and obligations of the
Contributors and any of their Affiliates, whether known or unknown,
accrued or
contingent, direct or indirect, other than the Aftermarket
Liabilities. Without
limiting the generality or effect of the foregoing, Newco will not
assume any of
the following:
(a) liabilities of the Contributors and any of their Subsidiaries
(i)
arising out of or in connection with the negotiation and
preparation of this
Agreement or any Ancillary Agreement and the consummation and
performance of the
Transactions or (ii) incurred in breach of this Agreement or any
Ancillary
Agreement;
(b) except as may be set forth in the Tax Sharing Agreement,
liabilities for income Taxes arising out of or related to the (i)
operation of
the Aftermarket Business prior to or on the Closing Date or (ii)
ownership of
the Aftermarket Assets prior to or on the Closing Date;
(c) liabilities or obligations of the Contributors and any of their
Subsidiaries with respect to any Aftermarket Employee pursuant to
any Modine
Benefit Plan (other than any Assumed Benefit Plan); or
(d) Actions, liabilities or obligations with respect to the
Excluded
Assets or the Excluded Liabilities or that Contributors have agreed
to discharge
pursuant to this Agreement or any Ancillary Agreement (irrespective
of whether
such Actions, liabilities or obligations arise before, on or after
the Closing).
"GAAP" means generally accepted accounting principles, applied
consistently
period to period, as in effect in the United States.
"Governmental Entity" means any arbitrator, court, judicial,
legislative,
administrative or regulatory agency, commission, department, board
or bureau or
body or other governmental authority or instrumentality or any
Person exercising
executive, legislative, judicial, regulatory or administrative
functions of or
pertaining to government, whether foreign, federal, state,
provincial or local.
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"Hazardous Substance" means any material, substance, chemical,
waste,
hazardous waste, pollutant, contaminant or hazardous or toxic
substance as to
which liabilities, restrictions or standards of conduct are imposed
pursuant to
any Environmental Laws, including asbestos, formaldehyde,
polychlorinated
biphenyls, lead based paint, radioactive materials, waste oil and
other
petroleum products.
"Intercompany Contracts" means all purchase orders, contracts,
agreements
and other obligations between or among any of the Contributors and
any of the
Contributors and/or any of their Affiliates (including Newco),
other than this
Agreement and the Ancillary Agreements.
"Inventory" means all spare parts, raw materials, finished
products, goods
in-process and supplies that are used principally in connection
with the
Aftermarket Business or are of the character included as inventory
on the
balance sheet delivered as part of the Aftermarket Audited
Financial Statements
or the Latest Aftermarket Financial Statements, wherever situated,
including all
such items located on or in transit to or from the Aftermarket Real
Property or
at a facility that is owned by Newco, all as are owned or leased by
the
Contributors on the Closing Date.
"Law" means any statute, law, ordinance, rule or regulation of any
Governmental Entity.
"Material Adverse Effect" means a material adverse effect on the
business,
financial condition or results of operations of the Aftermarket
Business taken
as a whole.
"Order" means any order, judgment, decree, writ, permit, license or
any
other requirement of any Governmental Entity.
"Patents" means those patents, registrations, and applications
therefor
used exclusively in the Aftermarket Business, as listed on Schedule
1.1E.
"Person" means any individual or legal entity, including any
Governmental
Entity.
"Permits" means all permits, approvals, licenses, authorizations,
certificates, rights, exemptions and Orders from any Governmental
Entity used by
or held for use by the Contributors or any of their Subsidiaries
and related to
the Aftermarket Business.
"Proprietary Information Technology" means the list of software and
computer programs and information technology that are not used
exclusively in
the Aftermarket Business and that are to be part of the Excluded
Assets, as
identified on Schedule 1.1F.
"Subsidiary" of any Person means any Person whose financial
condition and
results of operations are required to be consolidated with those of
the first
Person in preparing financial statements in accordance with GAAP.
"Tax Sharing Agreement" means the Tax Sharing Agreement among
Modine, Newco
and Transpro in the form of Exhibit 1.
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"Taxes or Tax" means (i) any federal, state, local or foreign
income,
excise, gross receipts, gross income, ad valorem, profits, gains,
property,
capital, sales, transfer, use, payroll, employment, severance,
withholding,
duties, intangibles, franchise, backup withholding, or other tax,
charge, levy
or like assessment imposed by a Governmental Entity together with
all penalties
and additions to tax and interest thereon, and (ii) any liability
for Taxes
described in clause (i) under Treasury Regulation Section 1.1502-6
(or any
similar provision of state, local or foreign Law).
"Technology" means the Patents plus any of the Contributors' or any
of
their Subsidiaries' non-patented formulations, trade secrets,
know-how, process
knowledge, proprietary design, computer software and database,
technological and
manufacturing know-how, in each case used exclusively in the
Aftermarket
Business as of the Closing Date.
"Trademarks" means those trademarks, service marks, registrations,
trade
names, logos, slogans and applications therefor used exclusively in
the
Aftermarket Business, as listed on Schedule 1.1G, and the goodwill
associated
therewith.
"Transactions" means the transactions contemplated by this
Agreement and
the Ancillary Agreements.
1.2 Other Definitions. The following terms have the meanings given
them in
the indicated Sections or agreement:
Term
Section/Agreement
----
-----------------
401(k) Plans
4.10(c)
Agreement
Preamble
Assumption
2.1
Assumed Benefit Plans
4.10(g)
COBRA
4.10(b)
Code
Recitals
Confidentiality Expiration Date
Merger Agreement
Contribution
2.1
Contributors
Preamble
Damages
5.1
ERISA
4.10(b)
Expenses
Merger Agreement
Indemnified Party
5.5
Indemnifying Party
5.5
Latest Aftermarket Financial Statements
"Aftermarket Assets"
Merger
Recitals
Merger Agreement
Recitals
MexPar
"Aftermarket Assets"
Modine
Preamble
Modine Benefit Plans
4.10(f)
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Term
Section/Agreement
----
-----------------
Modine Disclosure Schedule
Merger Agreement
Modine ERISA Affiliate
4.10(f)
Newco
Preamble
NRF
"Aftermarket Assets"
OEM Acquisition Agreement
Recitals
OEM Stock Sale
Recitals
Party
Preamble
Spin Off
Recitals
Transpro
Preamble
Transpro's Benefit Plans
4.10(d)
1.3 Interpretation. (a) When a reference is made in this Agreement
to
Articles, Sections, Exhibits or Schedules, such reference will be
to an Article
or Section of or Exhibit or Schedule to this Agreement unless
otherwise
indicated. The headings contained in this Agreement are for
reference purposes
only and will not affect in any way the meaning or interpretation
of this
Agreement. Whenever the words "include," "includes" or "including"
are used in
this Agreement, they will be deemed to be followed by the words
"without
limitation." Unless the context otherwise requires, (i) "or" is
disjunctive but
not necessarily exclusive, (ii) words in the singular include the
plural and
vice versa, (iii) the use in this Agreement of a pronoun in
reference to a party
hereto includes the masculine, feminine or neuter, as the context
may require,
and (iv) terms used herein which are defined in GAAP have the
meanings ascribed
to them therein. The Schedules and Exhibits hereto will be deemed
part of this
Agreement and included in any reference to this Agreement. This
Agreement will
not be interpreted or construed to require any Person to take any
action, or
fail to take any action, if to do so would violate any applicable
Law.
(b) The Parties have participated jointly in negotiating and
drafting this
Agreement. In the event that an ambiguity or a question of intent
or
interpretation arises, this Agreement will be construed as if
drafted jointly by
the Parties, and no presumption or burden of proof will arise
favoring or
disfavoring any Party by virtue of the authorship of any provision
of this
Agreement.
(c) This Agreement may be executed in two or more counterparts, all
of
which will be considered one and the same agreement and will become
effective
when counterparts have been signed by each of the Parties and
delivered to the
other Parties, it being understood that each Party need not sign
the same
counterpart.
(d) This Agreement and the Ancillary Agreements (including the
documents
and the instruments referenced herein and therein) constitute the
entire
agreement and supersede all prior agreements and understandings,
both written
and oral, among the parties with respect to the subject matter of
this
Agreement.
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(e) This Agreement will be governed and construed in accordance
with the
internal Laws of the State of Delaware applicable to contracts made
and wholly
performed within such state, without regard to any applicable
conflict of laws
principles.
II. TRANSFER AND CONTRIBUTION OF AFTERMARKET ASSETS;
ASSUMPTION OF CERTAIN LIABILITIES
2.1 Contribution of Assets and Assumption of Liabilities. In
accordance
with the terms and upon the conditions of this Agreement, prior to
the closing
of the Spin Off and Merger, the Contributors will and, if
necessary, will cause
their Subsidiaries (other than Newco) to convey, assign, transfer
and deliver to
Newco, and Newco will acquire and accept, all of the Contributors'
right, title
and interest in and to the Aftermarket Assets not already owned by
Newco
