As filed with the Securities and Exchange Commission on May 1, 2001
Registration No. 333-56648
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
On
FORM S-8
To
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MODINE MANUFACTURING COMPANY
(Exact name of registrant as specified in its charter)
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Wisconsin 3714 39-0482000
(State or Other (Primary Standard (I.R.S. Employer
Jurisdiction of Industrial Classification Identification)
Incorporation or Code Number)
Organization)
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MODINE MANUFACTURING COMPANY
1500 DEKOVEN AVENUE
RACINE, WISCONSIN 53403
262-636-1200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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DEAN R. ZAKOS
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
1500 DEKOVEN AVENUE
RACINE, WISCONSIN 53403
262-636-1464
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPY TO:
SHIRLEY M. LUKITSCH
SCHIFF HARDIN & WAITE
1101 CONNECTICUT AVENUE
SUITE 600
WASHINGTON, D.C. 20036
202-778-6400
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CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
--------------------------- ------------- -------------- -------------- ----------------
Common Stock, $0.625 par value
(including preferred stock
purchase rights attached
thereto) . . . . . . . . . . 283,898 shares (1) (1) (1)
(1) Registration fee with respect to these shares was previously paid
in connection with the filing of Modine Manufacturing Company's
Registration Statement on Form S-4 (File No. 333-56648) which was
declared effective March 20, 2001. See Explanatory Note below.
------------------------------------
EXPLANATORY NOTE
Modine Manufacturing Company hereby amends its Registration
Statement on Form S-4 (File No. 333-56648), effective March 20, 2001,
by filing this Post-Effective Amendment No. 1 on Form S-8 relating to
283,898 shares of common stock, $0.625 par value per share (including
preferred stock purchase rights attached thereto) of Modine issuable
under (a) the Modine Manufacturing Company Stock Option Plan for
Thermacore Employees Under the DTX Corporation 1995 Stock Option Plan
and (b) the Modine Manufacturing Company Stock-Based Compensation Plan
for Thermacore Employees Under the DTX Corporation 1997 Plan
(together, the "Plans").
On April 27, 2001, Modine acquired Thermacore International, Inc.
(formerly known as DTX Corporation) through the merger of a wholly
owned subsidiary of Modine with and into Thermacore (the "Merger"),
pursuant to an Agreement and Plan of Merger dated December 13, 2000,
as amended by Amendment No. 1 dated March 15, 2001. As a result of
the Merger each outstanding share of common stock of Thermacore was
converted into 1.01592 shares of common stock of Modine.
Pursuant to the merger agreement, options to acquire Thermacore
common stock previously granted under two Thermacore option plans have
been converted into options to acquire Modine common stock, adjusted
on the basis of the exchange ratio used in the Merger in converting
shares of Thermacore common stock into Modine common stock.
This Post-Effective Amendment No. 1 on Form S-8 to the
Registration Statement on Form S-4 relates to 283,898 shares of common
stock of Modine registered on the Form S-4 that were not issued at the
time of the Merger and that are issuable under the Plans after the
Merger.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and
Exchange Commission by Modine (Commission File Number 1-1373) are
incorporated herein by reference:
1. Modine's Annual Report on Form 10-K for the fiscal year
ended March 31, 2000;
2. Modine's Quarterly Reports on Form 10-Q for the quarterly
periods ended June 26, 2000, September 26, 2000, and
December 26, 2000;
3. Modine's Current Reports on Form 8-K filed with the
Securities and Exchange Commission:
(a) on April 30, 2001, relating to the completion of the
Merger;
(b) on December 15, 2000, relating to the execution and
delivery of the merger agreement,
(c) on December 1, 2000, relating to Modine's revision of
its sales and earnings outlook for its third quarter
and the remainder of its fiscal year ending March 31,
2001;
(d) on October 27, 2000, relating to the appointment of
Ernest T. Thomas as chief financial officer of Modine;
(e) on July 20, 2000, relating to a settlement agreement
between Modine and Showa Aluminum Corporation; and
(f) on June 9, 2000, relating to Modine's sales forecast
for its 2000-01 fiscal year;
4. Modine's Proxy Statement relating to the Annual Meeting of
Shareholders of Modine held on July 19, 2000;
5. the description of the Modine common stock contained in its
Form 10, filed with the Securities and Exchange Commission
on May 1, 1935; and
6. the description of the Modine preferred stock purchase
rights contained in its Form 8-A, filed with the Securities
and Exchange Commission on November 18, 1986, as amended by
its Form 8-A12G/A (Amendment No. 1), filed with the
Securities and Exchange Commission on January 27, 1995, Form
8-A12G/A (Amendment No. 2), filed with the Securities and
Exchange Commission on December 20, 1996 and Form 8-A12G/A
(Amendment No. 3), filed with the Securities and Exchange
Commission on January 29, 1998.
Note that the description of Modine common stock contained in its
Form 10, filed with the Securities and Exchange Commission on May 1,
1935, has been 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 amended by this Post-Effective Amendment No. 1 on Form S-8.
All additional documents filed by Modine with the Securities and
Exchange Commission subsequent to this filing pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated
by reference and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Modine is incorporated under the Wisconsin Business Corporation
Law. Under Section 180.0851(1) of the Wisconsin law, 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)
of the Wisconsin law to indemnify a director or officer against
liability incurred in a proceeding to which such person was a party
because he or she was an officer or director 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) of the Wisconsin law 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 Wisconsin law 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
Wisconsin law 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 Wisconsin law 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 Wisconsin law, directors of Modine
against whom claims are asserted with respect to the declaration of an
improper dividend or other distribution to shareholders to which the
directors assented are entitled to contribution from other directors
who assented to such distribution and from shareholders who knowingly
accepted the improper distribution, as provided therein.
Article IV of Modine's bylaws contains provisions that generally
parallel the indemnification provisions of the Wisconsin law.
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.
Pursuant to the merger agreement, Modine will cause Thermacore,
as the surviving corporation, to indemnify, defend and hold harmless
any person who is now, or has been at any time prior to the date of
the merger agreement, or who becomes prior to the merger, an officer,
director or employee or agent of Thermacore or any of its subsidiaries
against all losses, claims, damages, liabilities costs and expenses
based on or arising out of:
(1) the fact that such person is or was a director, officer,
employee or agent of Thermacore or any of its subsidiaries
at any time prior to the merger or is or was serving at the
request of Thermacore or any of its subsidiaries as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise at any
time before the merger; or
(2) the merger agreement or any of the transactions related to
the merger agreement,
in each case, to the fullest extent that the person was indemnified
under Thermacore's articles of incorporation or bylaws on the date of
the merger agreement.
Modine and Thermacore, as the surviving corporation, will also
honor any previously disclosed indemnification agreements between
Thermacore or any of its subsidiaries, as the case may be, and any of
their current or former officers or directors existing as of the date
of the merger agreement with respect to occurrences before or on the
merger date. Modine will honor the above-described indemnification
obligations for a period of three years beginning on the merger date.
Modine will also provide directors and officers of Thermacore
with officers' and directors' liability insurance coverage as of the
date of the merger with respect to matters occurring before or on the
merger date for a minimum period of three years beginning on the date
of the merger, which coverage will be substantially similar to
Thermacore's existing officers' and directors' liability insurance,
including an overall coverage amount not less than that under
Thermacore's existing insurance policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits filed herewith or incorporated by reference herein
are set forth in the Exhibit Index filed as part of this registration
statement.
ITEM 9. UNDERTAKINGS.
Modine hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in the
registration statement;
(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 information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Securities and Exchange Commission by Modine pursuant
to Section 13 or 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.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of Modine's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial BONA FIDE offering
thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of Modine pursuant to the foregoing provisions, or
otherwise, Modine has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
Modine of expenses incurred or paid by a director, officer or
controlling person of Modine 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,
Modine 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 Securities Act of 1933 and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, Modine hereby certifies that it has reasonable grounds to
believe that it meets all the requirements for filing on Form S-8 and
has duly caused this Post-Effective Amendment No. 1 on Form S-8 to its
Registration Statement on Form S-4 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Racine, State
of Wisconsin, on the 1st day of May, 2001.
MODINE MANUFACTURING COMPANY
(Registrant)
By: /s/ Donald R. Johnson
------------------------------
Donald R. Johnson
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Post-Effective Amendment No. 1 on Form S-8 to the
Registration Statement on Form S-4 has been signed by the following
persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Donald R. Johnson President and Chief May 1, 2001
---------------------- Executive Officer
Donald R. Johnson (Principal Executive
Officer) and Director
* E.T. Thomas Vice President, Finance May 1, 2001
----------------------- and Chief Financial
E.T. Thomas Officer (Principal
Financial and
Accounting Officer)
* R.J. Doyle Director May 1, 2001
-----------------------
R. J. Doyle
* F. P. Incropera Director May 1, 2001
-----------------------
F. P. Incropera
* F.W. Jones Director May 1, 2001
-----------------------
F. W. Jones
* D.J. Kuester Director May 1, 2001
-----------------------
D. J. Kuester
* V.L. Martin Director May 1, 2001
-----------------------
V. L. Martin
* G.L. Neale Director May 1, 2001
-----------------------
G. L. Neale
* M.C. Williams Director May 1, 2001
-----------------------
M. C. Williams
* M.T. Yonker Director May 1, 2001
-----------------------
M. T. Yonker
*By: /s/ Dean R. Zakos
-----------------
Dean R. Zakos
Attorney-in-Fact
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 Specimen Modine Uniform Denomination Stock Certificate
(incorporated by reference to Exhibit 4(a) to Modine's
Annual Report on Form 10-K for the fiscal year ended
March 31, 1998)
4.2 Rights Agreement dated as of October 16, 1986 between
Modine and First Chicago Trust Company of New York
(Rights Agent) (incorporated by reference to Exhibit
4(b) to Modine's Annual Report on Form 10-K for the
fiscal year ended March 31, 1997).
4.3 Rights Agreement Amendment No. 1 dated as of January
18, 1995 between Modine and First Chicago Trust Company
of New York (Rights Agent) (incorporated by reference
to Exhibit 4(b)(i) to Modine's Annual Report on Form
10-K for the fiscal year ended March 31, 2000).
4.4 Rights Agreement Amendment No. 2 dated as of January
18, 1995 between Modine and First Chicago Trust Company
of New York (Rights Agent) (incorporated by reference
to Exhibit 4(b)(ii) to Modine's Annual Report on Form
10-K for the fiscal year ended March 31, 2000).
4.5 Rights Agreement Amendment No. 3 dated as of October
15, 1996 between Modine and First Chicago Trust Company
of New York (Rights Agent) (incorporated by reference
to Exhibit 4(b)(iii) to Modine's Quarterly Report on
Form 10-Q for the quarterly period ended December 26,
1996).
4.6 Rights Agreement Amendment No. 4 dated as of November
10, 1997 between Modine and Norwest Bank Minnesota,
N.A. (now known as Wells Fargo Bank Minnesota, N.A.)
(Rights Agent) (incorporated by reference to Exhibit
4(b)(iv) to Modine's Quarterly Report on Form 10-Q for
the quarterly period ended December 26, 1997).
5.1 * Opinion of Schiff Hardin & Waite regarding the validity
of the securities being registered.
5.2 Supplemental Opinion of Schiff Hardin & Waite.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 * Consent of Schiff Hardin & Waite (included in the
opinion filed as Exhibit 5.1 to this registration
statement).
23.3 Supplemental Consent of Schiff Hardin & Waite (included
in its opinion filed as Exhibit 5.2 to this
registration statement).
24.1 Power of Attorney (included as part of the signature
pages to the Registration Statement on Form S-4 amended
by this Post-Effective Amendment No. 1 on Form S-8).
____________________
* Previously filed.