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 401(k) Retirement Plan for Salaried Employees
(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(1) Registered(1)(3) Share(2) Price(2) Fee(3)
---------------- ---------------- ---------- --------- ------------
Common Stock, 5,000 shares $17.215 $86,075 $7.92
$0.625 par value
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(1) In addition, pursuant to Rule 416(c) under the Securities
Act of 1933, this Registration Statement also covers an
indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
(2) 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.
(3) This Registration Statement registers additional securities
that may be issued under the Modine 401(k) Retirement Plan
for Salaried Employees (the "Plan"). Effective as of
December 31, 2001, the savings or 401(k) plans of certain
subsidiaries of the Registrant, insofar as such plans
provide for employees classified as salaried, were merged
into the Plan with the Plan being the surviving and
continuing plan. The Registrant's Registration Statement on
Form S-8 filed and effective on October 20, 2000 registered
500,000 shares of Common Stock issuable under the Plan
(Registration No. 333-48292) (the "Prior S-8"). As of the
date hereof, 258,865 shares of Common Stock registered under
the Prior S-8 (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
$1,742.68. 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-8 is
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 a registration
statement filed on Form S-8 relating to the same employee benefit
plan is 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 October 20, 2000 (Registration No. 333-48292),
as amended, relating to the Modine 401(k) Retirement
Plan for Salaried Employees.
However, as indicated in Note 3 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 and the Plan
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.
(vi) Annual Report on Form 11-K for the fiscal year ended
December 31, 2001 filed on June 27, 2002 by the Modine
401(k) Retirement Plan for Salaried Employees.
All documents subsequently filed by the Registrant or the
Plan 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 Date
Chief Executive Officer
(Principal Executive
Officer) and Director
R. S. BULLMORE October 25, 2002
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R. S. Bullmore, Corporate Date
Controller 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, Date
General 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
Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee
benefit plan) have 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 this
25th day of October, 2002.
MODINE 401(K) RETIREMENT PLAN
FOR SALARIED EMPLOYEES
DAVE B. SPIEWAK
-----------------------------------
Dave B. Spiewak, Committee Member
ROGER L. HETRICK
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Roger L. Hetrick, Committee Member
DEAN R. ZAKOS
-----------------------------------
Dean R. Zakos, Committee Member
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