form8a12ba.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
8-A/A
Amendment
No. 1
For
Registration of Certain Classes of Securities
Pursuant
to Section 12(b) or (g) of the
Securities
Exchange Act of 1934
Modine
Manufacturing Company
(Exact
name of registrant as specified in its charter)
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Wisconsin
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39-0482000
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(State
of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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1500
DeKoven Avenue, Racine, WI
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53403
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(Address
of principal executive offices)
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(Zip
Code)
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Securities
to be registered pursuant to Section 12(b) of the Act:
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Title
of Each Class to
be Registered:
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Name
of Exchange on which Each Class is to be Registered:
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Common
Stock, $0.625 par value
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New
York Stock Exchange
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If this
form relates to the registration of a class of securities pursuant to Section
12(b) of the Exchange Act and is effective pursuant to General Instruction
A.(c), check the following box. x
If this
form relates to the registration of a class of securities pursuant to Section
12(g) of the Exchange Act and is effective pursuant to General Instruction
A.(d), check the following box. o
Securities
Act registration statement file numbers to which this form relates (if
applicable): Not
Applicable
Securities
to be registered pursuant to Section 12(g) of the Act: None.
INFORMATION
REQUIRED IN REGISTRATION STATEMENT
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Item
1.
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Description
of Registrant’s Securities to be
Registered
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This Amendment No. 1 to the
Registration Statement on Form 8-A dated September 27, 2004 is being filed for
the purpose of updating the description of the capital stock of Modine
Manufacturing Company. References to “we,” “us,” “our” and
“Modine” refer to Modine Manufacturing Company.
DESCRIPTION
OF CAPITAL STOCK
This summary highlights selected
information about our capital stock and may not contain all of the information
that is important to you. Under our amended and restated articles of
incorporation, we have the authority to issue up to 96,000,000 shares of capital
stock, consisting of 80,000,000 shares of common stock, par value $0.625 per
share, and 16,000,000 shares of preferred stock, par value $0.025 per
share. As of July 14, 2008, 32,784,043 shares of common stock and no
shares of preferred stock were issued and outstanding. We encourage
you to read our articles of incorporation and our bylaws because they, and not
this summary, define the rights of holders of our common stock.
PREFERRED
STOCK
Under our articles of incorporation,
shares of preferred stock may be divided into and issued in series, from time to
time, with each such series to be so designated as to distinguish the shares
thereof from the shares of all other series of preferred stock. All
shares of preferred stock must be identical except as to the following rights
and preferences, as to which there may be variations between different series:
the rate of dividend; the price at and the terms and conditions on which shares
of preferred stock may be redeemed; the amount payable upon shares of preferred
stock in event of voluntary or involuntary liquidation; sinking fund provisions
for redemption or purchase of shares of preferred stock; the terms and
conditions on which shares of preferred stock may be converted into other series
or classes of capital stock, if the shares of any series of preferred stock are
issued with the privilege of conversion; voting rights, if any; and any other
rights or preferences as to which the laws of the State of Wisconsin, as in
effect at the time of the determination thereof, permit variations between
different series of preferred stock. Each such series of preferred
stock shall have only such voting rights, if any, preemptive rights, if any, and
such other designations, preferences, limitations and relative rights as shall
be stated and expressed in the resolution or resolutions providing for the issue
of such series of preferred stock adopted by the board of directors or as may be
required by law.
The rights, preferences and privileges
of the holders of our common stock will be subject to and may be adversely
affected by the rights of the holders of any series of preferred stock that the
board of directors may determine to issue in the future. In addition,
the issuance of preferred stock, although providing flexibility in connection
with possible acquisitions and other corporate purposes could, under some
circumstances, make it more difficult for a third party to gain control of us,
discourage bids for the common stock at a premium, or otherwise adversely affect
the market price of our common stock.
COMMON
STOCK
Voting
Rights
Each outstanding share of our common
stock is entitled to one vote upon each matter submitted to a vote at a meeting
of shareholders. Holders of shares of common stock are not entitled
to cumulate their votes in the election of directors. Directors are
elected by a plurality of the votes cast. Generally, unless a
different vote is required by the articles of incorporation, the bylaws or the
Wisconsin Business Corporation Law, which we refer to as the “WBCL,” all matters
to be voted on by shareholders must be approved by a majority of the votes cast
on the matter at a meeting at which a quorum is present, subject to any voting
rights granted to holders of then-outstanding preferred stock.
Dividend
and Liquidation Rights
Holders of our common stock are
entitled to receive ratably such dividends, if any, as may be declared from time
to time by the board of directors out of funds legally available for the payment
of dividends, subject to the rights of the holders of preferred stock, if any,
then outstanding. In the event of the dissolution, liquidation or
winding up of Modine, holders of our common stock will be entitled to receive,
pro rata, any assets and funds of Modine remaining after satisfaction of
Modine’s creditors and the payment of all amounts that the holders of preferred
stock, if any, then outstanding may be entitled to receive.
Preemptive
and Other Rights
Holders of our common stock do not have
preemptive, subscription, redemption or conversion rights.
Liability
to Future Calls or Assessments
Under the WBCL, when Modine receives
the consideration for which the board of directors authorized the issuance of
shares, the shares issued for that consideration are fully paid and
nonassessable. Former Section 180.0622(2)(b) of the WBCL imposed
personal liability on shareholders of Wisconsin corporations for debts owed to
employees for services performed, but not exceeding six months service in any
one case. Pursuant to 2005 Wisconsin Act 474, Section 180.0622(2)(b)
of the WBCL was repealed effective June 14, 2006 and is not applicable to
obligations incurred by Modine on or after such date.
Listing,
Transfer Agent and Registrar
The
outstanding shares of our common stock are listed on the New York Stock Exchange
under the symbol “MOD.” The transfer agent and registrar for our
common stock is Wells Fargo Bank, N.A.
Possible
Anti-Takeover Effects of our Articles of Incorporation and Bylaws
Our articles of incorporation and
bylaws contain provisions that could make it more difficult to acquire Modine by
means of a tender offer, proxy contest or otherwise. The description
set forth below is intended as a summary only. For complete information we
encourage you to read our articles of incorporation and bylaws.
Board of
Directors. Our articles of incorporation and bylaws provide
that the board of directors shall be divided into three classes as nearly equal
in number as possible, as determined by the board of directors. The
total number of directors shall be as provided in the bylaws, but not less than
seven. One class is elected each year for a three-year
term. Shareholders have the right to remove directors, but only for
good cause and by the affirmative vote of a majority of the outstanding shares
entitled to vote for the election of the director. The removal of a
director may only be taken at a special meeting of shareholders called for that
purpose.
Advance Notice Requirements for
Shareholder Proposals and Director Nominees. Our bylaws
require advance notice with regard to business proposed to be submitted by a
shareholder at any annual or special meeting of our shareholders, including the
nomination of candidates for election as directors. Notice of
proposed shareholder business must be timely given in writing to our corporate
secretary prior to the meeting. To be timely, notice must be received
at our principal executive offices within the time frames specified in our
bylaws. The notice must also contain certain information specified in
our bylaws, including, with respect to a director nomination, the written
consent of the nominee to serve as a director if elected.
Special Meetings; Shareholder Action
Without a Meeting. Special meetings of shareholders may be
called by a majority of the members of the board of directors, by the
chairperson of the board, by the chief executive officer, or, as required by the
WBCL, pursuant to one or more written demands signed by the holders of at least
10% of all the votes entitled to be cast on any issue proposed to be considered
at the proposed special meeting, which demand(s) must describe one or more
purposes for which the special meeting is to be held. The bylaws contain
provisions regarding special meetings called upon the demand of
shareholders. Shareholder action may be taken without a meeting only
by the unanimous written consent of all shareholders entitled to vote on the
action.
Required Vote for Certain Actions. Pursuant
to Section 180.1706(l) of the WBCL, except as otherwise provided in a
corporation’s articles of incorporation, any amendment to the articles of
incorporation, merger or share exchange, sale of all or substantially all assets
otherwise than in the regular course of business, dissolution of the corporation
or revocation of dissolution, involving a corporation organized before January
1, 1973, such as Modine, which did not expressly elect before January 1, 1991 to
be governed by a majority or greater voting requirement, must be approved by the
affirmative vote of two-thirds of the shares entitled to vote at a meeting
called for that purpose. Article VII of our articles of incorporation
expressly retains the two-thirds vote requirement for these
actions.
Amendment of
Bylaws. Shareholders have the right to amend or repeal the
bylaws at any regular or special meeting of the shareholders, if notice of the
proposed action was specified in the notice of the meeting. That
action requires the affirmative vote of not less than two-thirds of the shares
entitled to vote. The board of directors may also amend the bylaws by
the affirmative vote of not less than two-thirds of the full board of directors
of the Company.
Certain
Statutory Provisions
Wisconsin law, under which we are
incorporated, contains certain provisions that may be important when considering
the rights of holders of our capital stock. The description set forth below is
intended as a summary only. For complete information we encourage you to review
the applicable provisions of the WBCL.
Business Combination
Statute. Sections 180.1140 to 180.1144 of the WBCL regulate a
broad range of business combinations between a resident domestic corporation and
an “interested shareholder.” A business combination is defined to include any of
the following transactions:
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a
merger or share exchange;
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a
sale, lease, exchange, mortgage, pledge, transfer or other disposition of
assets equal to 5% or more of the aggregate market value of the stock or
assets of the company or 10% of its earning power or
income;
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the
issuance or transfer of stock or rights to purchase stock with a market
value equal to 5% or more of the outstanding
stock;
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the
adoption of a plan of liquidation or dissolution;
and
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any
reclassification of securities or recapitalization of the resident
domestic corporation if the effect is to increase the proportionate share
of its securities owned by the interested
shareholder.
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A “resident domestic corporation” is
defined to mean a Wisconsin corporation that has a class of voting stock that is
registered or traded on a national securities exchange or that is registered
under Section 12(g) of the Securities Exchange Act of 1934 and that, as of the
relevant date, satisfies any of the following: (1) its principal offices are
located in Wisconsin, (2) it has significant business operations located in
Wisconsin, (3) more than 10% of the holders of record of its shares are
residents of Wisconsin, or (4) more than 10% of its shares are held of record by
residents of Wisconsin. Modine is a resident domestic corporation for
purposes of these statutory provisions.
An
“interested shareholder” is defined to mean a person who beneficially owns,
directly or indirectly, 10% of the voting power of the outstanding voting stock
of a corporation or who is an affiliate or associate of the corporation and
beneficially owned 10% of the voting power of the then outstanding voting stock
within the last three years.
Under this law, we cannot engage in a
business combination with an interested shareholder for a period of three years
following the date such person becomes an interested shareholder, unless the
board of directors approved the business combination or the acquisition of the
stock that resulted in the person becoming an interested shareholder before the
acquisition. We may engage in a business combination with an interested
shareholder after the expiration of the three-year period with respect to that
shareholder only if one or more of the following conditions is satisfied: (1)
the board of directors approved the acquisition of the stock before the date on
which the shareholder acquired the shares, (2) the business combination is
approved by a majority of the outstanding voting stock not beneficially owned by
the interested shareholder, or (3) the consideration to be received by
shareholders meets certain fair price requirements of the statute with respect
to form and amount.
Fair Price
Statute. The WBCL also provides, in Sections 180.1130 to
180.1133, that certain mergers, share exchanges or sales, leases, exchanges or
other dispositions of assets in a transaction involving a “significant
shareholder” and a resident domestic corporation, such as us, require a
supermajority vote of shareholders in addition to any approval otherwise
required, unless shareholders receive a fair price for their shares that
satisfies a statutory formula. A “significant shareholder” for this purpose is
defined as a person or group who beneficially owns, directly or indirectly, 10%
or more of the voting stock of the corporation, or is an affiliate of the
corporation and beneficially owned, directly or indirectly, 10% or more of the
voting stock of the corporation within the last two years. Any business
combination to which the statute applies must be approved by 80% of the voting
power of the corporation’s stock and at least two-thirds of the voting power of
the corporation’s stock not beneficially held by the significant shareholder who
is party to the relevant transaction or any of its affiliates or associates, in
each case voting together as a single group, unless (a) the aggregate value of
the per share consideration is equal to the highest of:
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the
highest per share price paid for any common shares of the corporation by
the significant shareholder in the transaction in which it became a
significant shareholder or within two years before the date of the
business combination,
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the
market value per share of the corporation’s shares on the date of
commencement of any tender offer by the significant shareholder, the date
on which the person became a significant shareholder or the date of the
first public announcement of the proposed business combination, whichever
is highest, or
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the
highest preferential amount per share in a liquidation or dissolution to
which holders of the shares would be
entitled,
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and (b)
the significant shareholder offers either cash or the same form of consideration
used by the significant shareholder to acquire the largest number of shares it
acquired.
Control Share Voting
Restrictions. Under Section 180.1150 of the WBCL, unless otherwise
provided in the articles of incorporation or otherwise specified by the board of
directors, the voting power of shares of a resident domestic corporation held by
any person, or group of persons acting together, in excess of 20% of the voting
power in the election of directors is limited (in voting on any matter) to 10%
of the full voting power of those shares. This restriction does not apply to
shares acquired directly from the resident domestic corporation, in certain
specified transactions, or in a transaction in which the corporation’s
shareholders have approved restoration of the full voting power of the otherwise
restricted shares. The board of directors has adopted a provision in
our bylaws that specifies that the control share voting restrictions of Section
180.1150 do not apply to any shares of our stock.
Defensive Action Restrictions.
Section 180.1134 of the WBCL provides that, in addition to the vote
otherwise required by law or the articles of incorporation of a resident
domestic corporation, the approval of the holders of a majority of the shares
entitled to vote on the proposal is required before the corporation can take
certain action while a takeover offer is being made or after a takeover offer
has been publicly announced and before it is concluded. This statute requires
shareholder approval for the corporation to do either of the following: (1)
acquire more than 5% of its outstanding voting shares at a price above the
market price from any individual or organization that owns more than 3% of the
outstanding voting shares and has held such shares for less than two years,
unless a similar offer is made to acquire all voting shares and all securities
which may be converted into voting shares, or (2) sell or option assets of the
corporation which amount to 10% or more of the market value of the corporation,
unless the corporation has at least three independent directors (directors who
are not officers or employees) and a majority of the independent directors vote
not to have this provision apply to the corporation.
Constituency or
Stakeholder Provision. Under Section 180.0827 of the WBCL, in
discharging his or her duties to Modine and in determining what he or she
believes to be in the best interests of Modine, a director or officer may, in
addition to considering the effects of any action on shareholders, consider the
effects of the action on employees, suppliers, customers, the communities in
which we operate and any other factors that the director or officer considers
pertinent.
Item
2. Exhibits
Item 2 is
hereby amended by adding the following exhibits:
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3.1
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Restated
Articles of Incorporation (incorporated by reference to Exhibit 3(a) to
Modine Manufacturing Company’s Form 10-Q for the quarter ended June 26,
2005) (File No. 1-1373)
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3.2
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Bylaws
(incorporated by reference to Exhibit 3.1 to Modine Manufacturing
Company’s Current Report on Form 8-K dated April 1, 2008) (File No.
1-1373)
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SIGNATURE
Pursuant
to the requirements of Section 12 of the Securities Exchange Act of 1934, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereto duly authorized.
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MODINE MANUFACTURING
COMPANY |
| Date: July
17, 2008 |
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By: |
/s/ Thomas A.
Burke |
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Thomas A. Burke,
President |
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and
Chief Executive Officer |
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Exhibit
Index
Exhibit
No. Description
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3.1
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Restated
Articles of Incorporation (incorporated by reference to Exhibit 3(a) to
Modine Manufacturing Company’s Form 10-Q for the quarter ended June 26,
2005) (File No. 1-1373)
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3.2
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Bylaws
(incorporated by reference to Exhibit 3.1 to Modine Manufacturing
Company’s Current Report on Form 8-K dated April 1, 2008) (File No.
1-1373)
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