UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A-1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
RECOVERY ENGINEERING, INC.
(Exact name of registrant as specified in its charter)
Minnesota 41-1557115
(State of incorporation or organization) (I.R.S. Employer Identification No.)
9300 North 75th Avenue
Minneapolis, Minnesota 55428
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
NONE NONE
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. [ ]
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. [ ]
Securities Act registration file number to which this form relates (if
applicable):
Not Applicable
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.01 par value
(Title of class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
Recovery Engineering, Inc. (the "Company"), hereby amends and restates
in its entirety the Registration Statement on Form 8-A filed by the Company with
the Securities and Exchange Commission on February 2, 1993.
General
The Company is authorized to issue up to 100,000,000 shares of capital
stock. The capital stock has a par value of $.01 per share in the case of Common
Stock, and a par value as determined by the Board of Directors in the case of
preferred stock. All authorized shares are shares of Common Stock unless
otherwise provided by the Board of Directors. Any of the authorized but unissued
shares of capital stock may be designated as preferred stock by action of the
Board of Directors, without any action by the Company's shareholders. See
"Undesignated Preferred Stock" herein.
Common Stock
As of October 31, 1996, there were 4,545,750 shares of Common Stock
outstanding. Holders of Common Stock are entitled to one vote per share in all
matters to be voted upon by shareholders. There is no cumulative voting for the
election of directors, which means that the holders of shares entitled to
exercise more than 50% of the voting rights in the election of directors are
able to elect all of the directors. Holders of Common Stock have no preemptive
rights to subscribe for or to purchase any additional shares of Common Stock.
Holders of Common Stock are entitled to receive such dividends as are
declared by the Board of Directors of the Company out of funds legally available
for the payment of dividends, after payment or provision for payment of
dividends on shares of preferred stock, if any. In the event of any liquidation,
dissolution or winding up of the Company, the holders of Common Stock will be
entitled to receive a pro rata share of the net assets of the Company remaining
after payment or provision for payment of the debts and other liabilities of the
Company, and after payment or provision for payment of any liquidation
preferences on shares of preferred stock, if any.
All of the outstanding shares of Common Stock are fully paid and
non-assessable. Holders of Common Stock of the Company are not liable for
further calls or assessments.
Undesignated Preferred Stock
Any of the authorized but unissued shares of capital stock may be
designated as preferred stock by action of the Board of Directors, without any
action by the Company's shareholders. The Company's Board of Directors is
authorized to establish, and to designate the name of, each class or series of
the shares of preferred stock and to set the terms of such shares (including
terms with respect to redemption, sinking fund, dividend, liquidation,
preemptive, conversion and voting rights and preferences). The Board of
Directors of the Company may, without approval of the holders of the Common
Stock, issue shares of a class or series of preferred stock with voting and
conversion rights which could adversely affect the voting power and other rights
of the holders of the Common
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Stock and may have the effect of delaying, deferring or preventing a change in
control of the Company.
Common Stock Purchase Rights
On January 30, 1996, the Board of Directors of the Company declared a
dividend of one Common Stock purchase right (a "Right") for each outstanding
share of Common Stock. The dividend was paid on February 19, 1996, to the
shareholders of record on that date. The description of the Rights contained in
the Company's Registration Statement on Form 8-A, filed February 20, 1996, is
incorporated herein by reference.
Indemnification and Limitation on Director Liability
The Minnesota Business Corporation Act provides that officers and
directors of the Company have the right to indemnification from the Company for
liability arising out of certain actions. The Company's Bylaws provide that the
Company shall indemnify its officers, directors and certain other persons in the
manner and to the extent permitted by Minnesota law. Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors,
officers or persons controlling the Company pursuant to such indemnification
provisions, the Company 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 and is therefore unenforceable.
The Company has included in its Articles of Incorporation a provision
that eliminates, to the extent permitted by statute, the personal liability of
directors in their capacities as directors for monetary damages to the Company
or its shareholders for breaches of the directors' duty of care. The principal
effect of the provision is to prevent the Company and its shareholders from
suing any director for monetary damages arising out of a breach of that
director's duty of care or grossly negligent business decisions. The provision
does not affect the ability of the Company or its shareholders to seek
injunctive or other equitable remedies to enforce the directors' duty of loyalty
to the Company or its shareholders, for acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, or for any
transaction from which the director derived an improper personal benefit. It
also does not eliminate or limit a director's liability for participating in
unlawful payments of dividends or stock repurchases or redemptions, or for
violations of state or federal securities laws.
Nomination of Directors
The Company's Bylaws require that shareholder nominations for director
be made pursuant to timely notice in writing to the Company. To be timely,
written notice must be delivered to the Company not less than 60 nor more than
90 days prior to the date of the scheduled annual meeting; provided, however,
that if the Company gives less than 70 days' notice of such meeting, the
shareholder may deliver notice no later than the tenth day following the earlier
of the day on which the Company's notice of the date of the meeting was mailed
or the day on which such date was publicly disclosed. The Bylaws further provide
that the shareholder's notice shall set forth certain information concerning
each nominee, including (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of such
person, (iii) the class and
<PAGE>
number of shares of the Company's stock beneficially owned by such person on the
date of the notice, and (iv) any other information relating to such person that
would be required to be disclosed pursuant to Regulation 13D and Regulation 14A
under the Securities Exchange Act of 1934. In addition, the shareholder giving
the notice is required to state the name and address of such shareholder and the
identity of other shareholders known by such shareholder to be supporting such
nominees and the extent of such shareholders' beneficial ownership of the
Company's stock. A majority of the Continuing Directors may reject a nomination
by a shareholder not timely made in accordance with the requirements of the
Bylaws. In case of a deficiency in such shareholder's notice, the shareholder
has the opportunity to cure the deficiency by providing additional information
within five days of the date that such a deficiency notice is given to the
shareholder. A majority of the Continuing Directors determines whether the
deficiency has been cured by the shareholder.
Proposals of Shareholders
The Company's Bylaws provide that, except for shareholder proposals
filed in accordance with the proxy rules promulgated under the Exchange Act, a
shareholder seeking to bring new business before an annual meeting is required
to comply with the provisions described below. The Bylaws require that
shareholder proposals for new business, together with certain accompanying
information, be filed with the Company no less than 60 nor more than 90 days
prior to the scheduled annual meeting, provided that the Company has given at
least 70 days' notice of such meeting. If the Company has not given at least 70
days' notice, shareholder proposals must be submitted no later than the tenth
day following the earlier of the date that notice of the date of the annual
meeting was mailed to the shareholders or the day on which public disclosure of
such date was made. The Bylaws require that the shareholder's notice set forth
as to each proposal (i) a description of and the reasons for such proposal, (ii)
the names and addresses of the shareholder making the proposal and of any
shareholders known to be supporting the proposal, (iii) such persons' beneficial
ownership of the Company's stock, and (iv) any financial interest in the
proposal of the shareholder offering the proposal. If the information supplied
by the shareholder is deficient in any material aspect, the Board of Directors
may reject the shareholder proposal. The shareholder may cure the deficiency
within five days after notification. The Board of Directors determines whether
the deficiency has been cured by the shareholder.
Certain Provisions of Minnesota Law
The Company is subject to the provisions of the Minnesota Business
Corporation Act, including the provisions described below.
Control Share Acquisitions. Section 302A.671 of the Minnesota Statutes
applies, with certain exceptions, to any acquisition of voting stock of the
Company from a person other than the Company, and other than in connection with
certain mergers and exchanges to which the Company is a party, resulting in
certain percentages of voting control of the Company (in excess of 20%, 33-1/3%
or 50%) by such acquiring person. Section 302A.671 requires approval of any such
acquisitions by a majority vote of the shareholders of the Company (other than
the acquiring person) prior to its consummation. In general, shares acquired in
the absence of such approval are denied voting rights and are redeemable at
their then fair market value by the Company within 30 days after the acquiring
<PAGE>
person has failed to give a timely information statement to the Company or the
date the shareholders have voted not to grant voting rights to the acquiring
person's shares.
Business Combinations. Section 302A.673 of the Minnesota Statutes
generally prohibits any business combination by a Minnesota corporation that is
a "publicly held corporation" (i.e., a corporation that has a class of equity
securities registered with the Securities and Exchange Commission), or any
subsidiary of the publicly held corporation, with any shareholder which
purchases 10% or more of the corporation's voting shares (an "interested
shareholder") within four years following such interested shareholder's share
acquisition date, unless the business combination is approved by a committee of
all of the disinterested members of the Board of Directors of the corporation
before the interested shareholder's share acquisition date.
Fair Price Requirement. In the event of certain tender offers for stock
of a publicly held corporation, Section 302A.675 of the Minnesota Statutes
precludes the tender offeror from acquiring additional shares of stock
(including acquisitions pursuant to mergers, consolidations or statutory share
exchanges) within two years following the completion of such an offer unless the
selling shareholders are given the opportunity to sell the shares on terms that
are substantially equivalent to those contained in the earlier tender offer.
Section 302A.675 does not apply if a committee of the Board of Directors
consisting of all of its disinterested directors (excluding present and former
officers of the corporation) approves the subsequent acquisition before shares
are acquired pursuant to the earlier tender offer.
Limitation on Share Purchases. Section 302A.553 of the Minnesota
Statutes generally prohibits a Minnesota corporation that is a publicly held
corporation from directly or indirectly purchasing or agreeing to purchase any
voting shares from a person (or two or more persons who are acting together) who
beneficially owns more than five percent of the voting power of the corporation
for more than the market value of such shares if the shares have been
beneficially owned by the person for less than two years, unless (i) the
purchase or agreement to purchase is approved at a meeting of shareholders by
the affirmative vote of the holders of a majority of the voting power of all
shares entitled to vote, or (ii) the corporation makes an offer, of at least
equal value per share, to all holders of shares of the class or series and to
all holders of any class or series into which the securities may be converted.
Transfer Agent and Registrar
Norwest Bank Minnesota, N.A., South Saint Paul, Minnesota is the
transfer agent and registrar for the Common Stock of the Company.
<PAGE>
ITEM 2. EXHIBITS.
3.1 Articles of Incorporation of Recovery Engineering, Inc.
3.2 Bylaws of Recovery Engineering, Inc.
4.1 Specimen Certificate for Common Stock
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this amendment to registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
Dated: December 3, 1997 RECOVERY ENGINEERING, INC.
By /s/ Charles F. Karpinske
----------------------------
Charles F. Karpinske
Chief Financial Officer
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION METHOD OF FILING
3.1 Articles of Incorporation of Incorporated by reference to Appendix 1
Recovery Engineering, Inc. to the Company's Proxy Statement (File
No. 0-21232), for its Annual Meeting of
Shareholders held on April 25, 1996
3.2 Bylaws of Recovery Engineering, Incorporated by reference to Appendix 2
Inc. to the Company's Proxy Statement (File
No. 0-21232), for its Annual Meeting of
Shareholders held on April 25, 1996
4.1 Specimen Certificate for Common Filed electronically herewith
Stock
[LOGO] RECOVERY ENGINEERING, INC.
SEE REVERSE SIDE
FOR CERTAIN DEFINITIONS
COMMON CUSIP 756269 10 6
INCORPORATED UNDER THE LAWS OF THE STATE OF MINNESOTA
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE,
OF
- ------------------------- RECOVERY ENGINEERING, INC. ---------------------------
COMMON
TRANSFERABLE ON THE BOOKS OF THE CORPORATION BY THE HOLDER HEREOF IN PERSON OR
BY DULY AUTHORIZED ATTORNEY UPON SURRENDER OF THIS CERTIFICATE PROPERLY
ENDORSED. THIS CERTIFICATE IS NOT VALID UNLESS COUNTERSIGNED BY THE TRANSFER
AGENT AND REGISTRAR.
WITNESS THE FACSIMILE SEAL OF THE CORPORATION AND THE FACSIMILE SIGNATURES
OF ITS DULY AUTHORIZED OFFICERS.
DATED:
/s/ Eric O. Madson [CORPORATE SEAL] /s/ Brian F. Sullivan
SECRETARY RECOVERY ENGINEERING, INC. CHIEF EXECUTIVE OFFICER
MINNESOTA
Countersigned and Registered:
NORWEST BANK MINNESOTA, N.A.
Transfer Agent and Registrar
By
Authorized Signature
<PAGE>
THIS CERTIFICATE ALSO EVIDENCES AND ENTITLES THE HOLDER HEREOF TO CERTAIN RIGHTS
(THE "RIGHTS") AS SET FORTH IN A RIGHTS AGREEMENT BETWEEN RECOVERY ENGINEERING,
INC. AND NORWEST BANK MINNESOTA, N.A., AS RIGHTS AGENT, DATED AS OF JANUARY 30,
1996 AS THE SAME MAY BE AMENDED FROM TIME TO TIME (THE "RIGHTS AGREEMENT"), THE
TERMS OF WHICH ARE HEREBY INCORPORATED HEREIN BY REFERENCE AND A COPY OF WHICH
IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF RECOVERY ENGINEERING, INC.
UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT, SUCH RIGHTS
WILL BE EVIDENCED BY SEPARATE CERTIFICATES AND WILL NO LONGER BE EVIDENCED BY
THIS CERTIFICATE. RECOVERY ENGINEERING, INC. WILL MAIL TO THE HOLDER OF THIS
CERTIFICATE A COPY OF THE RIGHTS AGREEMENT WITHOUT CHARGE AFTER RECEIPT OF A
WRITTEN REQUEST THEREFOR. UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE
RIGHTS AGREEMENT, RIGHTS OWNED BY OR TRANSFERRED TO ANY PERSON WHO IS OR BECOMES
AN ACQUIRING PERSON (AS DEFINED IN THE RIGHTS AGREEMENT) AND CERTAIN TRANSFEREES
THEREOF WILL BECOME NULL AND VOID AND WILL NO LONGER BE TRANSFERABLE.
THE ARTICLES OF INCORPORATION OF THE CORPORATION AUTHORIZE THE BOARD OF
DIRECTORS TO ISSUE SHARES OF PREFERRED STOCK OF THE CORPORATION IN ONE OR MORE
SERIES. THE CORPORATION WILL FURNISH TO ANY SHAREHOLDER UPON REQUEST AND WITHOUT
CHARGE A FULL STATEMENT OF THE DESIGNATIONS, PREFERENCES, LIMITATIONS, AND
RELATIVE RIGHTS OF THE SHARES OF EACH SUCH SERIES AUTHORIZED TO BE ISSUED, SO
FAR AS THEY HAVE BEEN DETERMINED, AND THE AUTHORITY OF THE BOARD TO DETERMINE
THE RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT SERIES.
- --------------------------------------------------------------------------------
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UTMA - ___________Custodian___________
(Cust) (Minor)
TEN ENT - as tenants by entireties under Uniform Transfer to Minors
Act___________________________
JT TEN - as joint tenants with right (State)
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
- --------------------------------------------------------------------------------
FOR VALUE RECEIVED______HEREBY SELL, ASSIGN AND TRANSFER UNTO
PLEASE INSERT SOCIAL SECURITY NUMBER OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
_________________________________________________________________________SHARES
OF THE CAPITAL STOCK REPRESENTED BY THE WITHIN CERTIFICATE, AND DO HEREBY
IRREVOCABLY CONSTITUTE AND APPOINT
________________________________________________________________________ATTORNEY
TO TRANSFER THE SAID STOCK ON THE BOOKS OF THE WITHIN-NAMED CORPORATION WITH
FULL POWER OF SUBSTITUTION IN THE PREMISES.
DATED ___________________________________________
___________________________________________
NOTICE: THE SIGNATURE TO THIS
ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR
WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
SIGNATURE GUARANTEED
