Registration No. 333-______
As filed with the Securities and Exchange Commission on October 28, 2002
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MODINE MANUFACTURING COMPANY
(Exact name of registrant 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
(Address of principal executive offices) (Zip Code)
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Modine Employee Stock Ownership Plan
(f/k/a the Modine Manufacturing Company
Contributory Salaried Employee Stock Ownership and Investment Plan)
(Full title of the plan)
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DEAN R. ZAKOS
Vice President, General Counsel and Secretary
Modine Manufacturing Company
1500 DeKoven Avenue
Racine, Wisconsin 53403
(Name and address of agent for service)
(262) 636-1200
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Offering Aggregate Amount of
to be Amount to be Price Per Offering Registration
Registered Registered (2) Share (1) Price (1) Fee (2)
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Common Stock, 5,000 shares $17.215 $86,075 $7.92
$0.625 par value
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(1) Pursuant to Rule 457(h), estimated solely for the purpose of computing
the registration fee, based upon the average of the high and low sales
prices of the Registrant's Common Stock on the Nasdaq National Market
on October 23, 2002.
(2) This Registration Statement registers additional securities that may
be issued under the Modine Employee Stock Ownership Plan (the "Plan").
The Plan represents the combination of the Modine Contributory Employee
Stock Ownership and Investment Plans for Salaried, Non-Union Hourly and
Union Hourly Employees. Effective as of December 31, 2001, the Modine
Manufacturing Company Contributory Employee Stock Ownership Plan for
Hourly Rate Non-Union Employees (the "Hourly Non-Union Plan") and the
Modine Manufacturing Company Contributory Employee Stock Ownership
Plan for Hourly Rate Union Employees (the "Hourly Union Plan") were
merged into the Modine Manufacturing Company Contributory Salaried
Employee Stock Ownership and Investment Plan (the "Salaried Plan"),
with the Salaried Plan being the surviving and continuing plan, and
with such surviving plan amended and restated so as to be qualified
as an Employee Stock Ownership Plan and renamed the Modine Employee
Stock Ownership Plan, the Plan to which this Registration Statement
relates. The Registrant's prior registration statements on Form S-8
(the "Prior S-8s") registered the following numbers of shares of the
Registrant's Common Stock for issuance pursuant to these plans:
- Registration Statement on Form S-8 filed and effective on
May 21, 1999 for the Hourly Non-Union Plan (Registration No.
333-78989) - 100,000 shares;
- Registration Statements on Form S-8 filed and effective on
May 21, 1999 and October 20, 2000 for the Hourly Union Plan
(Registration Nos. 333-78991 and 333-48296) - 150,000 shares
and 50,000 shares, respectively; and
- Registration Statement on Form S-8 filed and effective on
October 20, 2000 for the Salaried Plan (Registration No.
333-48294) - 800,000 shares.
As of the date hereof, a total of 296,432 shares of Common Stock
registered under the Prior S-8s (48,760 for the Hourly Non-Union
Plan; 66,427 for the Hourly Union Plan; and 181,245 for the Salaried
Plan) (the "Remaining Shares") have not been issued and are,
therefore, carried forward and considered registered under this
Registration Statement. The pro rata filing fee paid with respect
to the Remaining Shares was $2,157.03 ($449.02 under the Hourly
Non-Union Plan, $487.87 under the Hourly Union Plan, and $1,220.14
under the Salaried Plan). Because the Remaining Shares are carried
forward to this Registration Statement, no filing fee is paid
hereunder with respect to such shares. The Prior S-8s are being
amended for the purpose of describing the carry forward of the
Remaining Shares to this Registration Statement.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information specified in Part I of Form S-8 (Parts 1 and 2) will
be sent or given to employees eligible to participate in the Plan as
specified by Rule 428(b)(1) under the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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This Registration Statement registers additional securities
of the same class as other securities for which registration
statements filed on Form S-8 relating to the same employee benefit
plan and its predecessors are effective. The contents of the
following documents filed by Modine Manufacturing Company (the
"Registrant" or "Modine") with the Securities and Exchange Commission
(File No. 1-1373) are incorporated herein by reference:
(a) The Registrant's Registration Statement on Form S-8
filed on May 21, 1999 (Registration No. 333-78989), as
amended, relating to the Modine Manufacturing Company
Contributory Employee Stock Ownership Plan for Hourly
Rate Non-Union Employees.
(b) The Registrant's Registration Statements on Form S-8
filed on May 21, 1999 and October 20, 2000
(Registration Nos. 333-78991 and 333-48296), as
amended, relating to the Modine Manufacturing Company
Contributory Employee Stock Ownership Plan for Hourly
Rate Union Employees
(c) The Registrant's Registration Statement on Form S-8
filed on October 20, 2000 (Registration No. 333-48294),
as amended, relating to the Modine Manufacturing
Company Contributory Salaried Employee Stock Ownership
and Investment Plan.
However, as indicated in Note 2 to the fee table, the Remaining Shares
available under such earlier registration statements are being carried
forward to this Registration Statement. Also, the Registrant has
elected not to rely upon General Instruction E to Form S-8, which
permits the filing of an abbreviated registration statement for the
registration of additional securities for an employee benefit plan
for which an earlier S-8 registration is effective. Instead, this
Registration Statement responds to all applicable items of Form S-8.
The following documents filed by the Registrant with the
Securities and Exchange Commission pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934 are incorporated herein by reference:
(i) Registrant's Annual Report on Form 10-K for the fiscal
year ended March 31, 2002.
(ii) Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 26, 2002.
(iii)Registrant's Current Reports on Form 8-K filed on
April 1, 2002, April 2, 2002, July 19, 2002, July 22,
2002 and October 17, 2002 (two reports).
(iv) The description of the Registrant's Common Stock
contained in its Form 10, filed with the Securities and
Exchange Commission on May 1, 1935, as amended and
supplemented by the description contained under the
caption "Description of Modine Common Stock" in the
proxy statement/prospectus which forms a part of the
Registration Statement on Form S-4 (Registration No.
333-56648) filed with the Securities and Exchange
Commission on March 7, 2001, as amended by Amendment
No. 1 thereto on Form S-4/A filed with the Securities
and Exchange Commission on March 16, 2001, and any
future amendment or report filed for the purpose of
updating such description.
(v) Registrant's Form 15-12G with respect to termination of
registration of preferred share purchase rights filed
September 9, 2002.
All documents subsequently filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the
date of the filing of such documents.
Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes hereof to the extent that a
statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part hereof.
Item 4. Description of Securities.
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Not applicable. See point (iv) in Item 3 above.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Modine is incorporated under the Wisconsin Business
Corporation Law (the "WBCL").
Under Section 180.0851(1) of the WBCL, Modine is required to
indemnify a director or officer, to the extent such person is
successful on the merits or otherwise in the defense of a
proceeding, for all reasonable expenses incurred in the
proceeding if such person was a party because he or she was a
director or officer of Modine. In all other cases, Modine is
required by Section 180.0851(2) to indemnify a director or
officer against liability incurred in a proceeding to which such
person was a party because he or she was a director or officer of
Modine, unless it is determined that he or she breached or failed
to perform a duty owed to Modine and the breach or failure to
perform constitutes: (i) a willful failure to deal fairly with
Modine or its shareholders in connection with a matter in which
the director or officer has a material conflict of interest; (ii)
a violation of criminal law, unless the director or officer had
reasonable cause to believe his or her conduct was lawful or no
reasonable cause to believe his or her conduct was unlawful;
(iii) a transaction from which the director or officer derived an
improper personal profit; or (iv) willful misconduct. Section
180.0858(1) provides that, subject to certain limitations, the
mandatory indemnification provisions do not preclude any
additional right to indemnification or allowance of expenses that
a director or officer may have under Modine's articles of
incorporation, bylaws, a written agreement or a resolution of the
board of directors or shareholders.
Section 180.0859 of the WBCL provides that it is the public
policy of the State of Wisconsin to require or permit indemnification,
allowance of expenses and insurance to the extent required or permitted
under Sections 180.0850 to 180.0858 of the WBCL, for any liability
incurred in connection with a proceeding involving a federal or state
statute, rule or regulation regulating the offer, sale or purchase of
securities.
Section 180.0828 of the WBCL provides that, with certain
exceptions, a director is not liable to a corporation, its shareholders,
or any person asserting rights on behalf of the corporation or its
shareholders, for damages, settlements, fees, fines, penalties or other
monetary liabilities arising from a breach of, or failure to perform,
any duty resulting solely from his or her status as a director, unless
the person asserting liability proves that the breach or failure to
perform constitutes any of the four exceptions to mandatory
indemnification under Section 180.0851(2) referred to above.
Under Section 180.0833 of the WBCL, directors of Modine against
whom claims are asserted with respect to the declaration of improper
dividends or distributions to shareholders or certain other improper
acts which they approved are entitled to contribution from other
directors who approved such actions and from shareholders who
knowingly accepted an improper dividend or distribution, as provided
therein.
Article IV of Modine's Bylaws provides for the indemnification
of directors and officers. Directors and officers of Modine are
also covered by directors' and officers' liability insurance under
which they are insured (subject to certain exceptions and
limitations specified in the policy) against expenses and
liabilities arising out of proceedings to which they are parties
by reason of being or having been directors or officers.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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See Exhibit Index following the Signatures page(s) in this
Registration Statement, which Exhibit Index is incorporated
herein by reference.
Item 9. Undertakings.
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The undersigned registrant hereby undertakes (in accordance
with the corresponding lettered undertakings in Item 512 of
Regulation S-K):
(a) (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;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference 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
offered 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.
(b) 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.
. . .
(h) 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 provisions
referred to in Item 6 of this registration statement, 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.
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 25th day of October, 2002.
MODINE MANUFACTURING COMPANY
By: D. R. JOHNSON
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D. R. Johnson,
Chairman 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 dates indicated.
D. R. JOHNSON October 25, 2002
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D. R. Johnson, Chairman and Chief Date
Executive Officer (Principal Executive
Officer) and Director
R. S. BULLMORE October 25, 2002
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R. S. Bullmore, Corporate Controller Date
and Acting Chief Financial Officer
(Acting Principal Financial and
Accounting Officer)
D. R. ZAKOS October 25, 2002
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D. R. Zakos, Vice President, General Date
Counsel and Secretary
/s/ R. J. Doyle* October 25, 2002
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R. J. Doyle, Director Date
/s/ F. P. Incropera* October 25, 2002
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F. P. Incropera, Director Date
/s/ F. W. Jones* October 25, 2002
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F. W. Jones, Director Date
/s/ D. J. Kuester* October 25, 2002
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D. J. Kuester, Director Date
/s/ V. L. Martin* October 25, 2002
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V. L. Martin, Director Date
/s/ G. L. Neale* October 25, 2002
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G. L. Neale, Director Date
/s/ M. C. Williams* October 25, 2002
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M. C. Williams, Director Date
/s/ M. T. Yonker* October 25, 2002
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M. T. Yonker, Director Date
*By: D. R. ZAKOS
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Dean R. Zakos, attorney-in-fact
for each of the persons indicated
POWER OF ATTORNEY
Each of the persons whose signatures appear below, hereby appoints
Dean R. Zakos and Margaret C. Kelsey, or either of them, as his or her
true and lawful attorneys, to sign, in his or her name and on his or
her behalf and in any and all capacities stated below, and to cause to
be filed with the Securities and Exchange Commission (the "Commission"),
this Registration Statement on Form S-8 (the "Registration Statement")
and any and all amendments, including post-effective amendments, to the
Registration Statement that either of such attorneys shall deem necessary
or advisable to enable the registrant to comply with the Securities Act
of 1933, as amended, and any rules, regulations and requirements of the
Commission with respect thereto, in connection with this Registration
Statement, which amendments may make such changes in such Registration
Statement as either of the above-named attorneys deems appropriate, and
to comply with the undertakings of the registrant made in connection
with this Registration Statement, and each of the undersigned hereby
ratifies all that either of said attorneys shall do or cause to be done
by virtue thereof.
IN WITNESS WHEREOF, the undersigned have signed these presents
effective the 16th day of October, 2002.
/s/ D. R. JOHNSON
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D. R. Johnson, Chairman and Chief
Executive Officer (Principal Executive
Officer) and Director
/s/ R. S. BULLMORE
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R. S. Bullmore, Corporate Controller and
Acting Chief Financial Officer (Acting
Principal Financial and Accounting
Officer)
/s/ D. R. ZAKOS
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D. R. Zakos, Vice President, General
Counsel and Secretary
/s/ R. J. DOYLE
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R. J. Doyle, Director
/s/ F. P. INCROPERA
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F. P. Incropera, Director
/s/ F. W. JONES
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F. W. Jones, Director
/s/ D. J. KUESTER
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D. J. Kuester, Director
/s/ V. L. MARTIN
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V. L. Martin, Director
/s/ G. L. NEALE
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G. L. Neale, Director
/s/ M. C. WILLIAMS
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M. C. Williams, Director
/s/ M. T. YONKER
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M. T. Yonker, Director
MODINE MANUFACTURING COMPANY
(the "Registrant")
(Commission File No. 1-1373
EXHIBIT INDEX
TO REGISTRATION STATEMENT ON FORM S-8
The following exhibits are filed with or incorporated by
reference (to the documents identified in parentheses) in this
Registration Statement:
Exhibit
Number Description
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4(a) Restated Articles of Incorporation of
the Registrant (as amended) (incorporated
by reference to Exhibit 3(a) to the
Registrant's Annual Report on Form 10-K
for the fiscal year ended March 31, 1999).
4(b) Restated Bylaws of the Registrant (as
amended) (incorporated by reference to
Exhibit 3(b) to the Registrant's Annual
Report on Form 10-K for the fiscal year
ended March 31, 2002).
*5(a) Opinion regarding legality of original
issuance or treasury shares provided by
Dean R. Zakos.
5(b) In lieu of an opinion of counsel concerning
compliance with the requirements of ERISA
or an Internal Revenue Service (IRS)
determination letter that the Plan is
qualified under section 401 of the Internal
Revenue Code, the Registrant hereby
undertakes that it has submitted or will
submit the Plan and any amendments thereto
to the IRS in a timely manner and has made
or will make all changes required by the
IRS in order to qualify the plan.
*23(a) Consent of Independent Accountants,
provided by PricewaterhouseCoopers LLP.
*23(b) Consent of Counsel (included in Exhibit
5(a)).
*24 Power of Attorney (included as part of
the signature pages to the Registration
Statement).
*Filed herewith