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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A/A-2
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FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
RECOVERY ENGINEERING, INC.
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(Exact name of registrant as specified in its charter)
MINNESOTA 41-1557115
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
9300 NORTH 75TH AVENUE
MINNEAPOLIS, MINNESOTA 55428
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(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 N/A
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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. [ ]
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 STATEMENT
FILE NUMBER TO WHICH THIS FORM RELATES:
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(if applicable)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
COMMON STOCK, $.01 PAR VALUE
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(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 relating to the Company's
Common Stock, $.01 par value, filed by the Company with the Securities and
Exchange Commission on February 2, 1993, and amended on December 4, 1997.
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 April 29, 1999, there were 6,024,366 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, as
amended on June 29, 1999, 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.
Board of Directors
The Company's Articles of Incorporation provide that the Board of
Directors is classified into three classes, each class to be as nearly equal in
number as possible: Class 1, Class 2 and Class 3. Each director serves for a
term ending upon the election of directors at the third annual meeting following
the annual meeting at which the class was elected; provided, however, that the
directors initially elected to Class 1 serve for a term ending upon the election
of directors at the first annual meeting following the end of the calendar year
1999, the directors initially elected to Class 2 serve for a term ending upon
the election of directors at the second annual meeting following the end of the
calendar year 1999, and the directors initially elected to Class 3 shall for a
term ending upon the election of directors at the third annual meeting following
the end of the calendar year 1999. There
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shall be no less than five and no more than eleven directors, with the precise
number to be set by the Company's Board of Directors. Directors can be removed
only for cause, which requires that the director be convicted of a felony or
found guilty of gross negligence or intentional misconduct in the performance of
the director's duties. Any vacancy on the Board occurring during the course of
the year, including vacancies created by an increase in the number of directors,
shall be filled by a majority vote of the remaining directors. Directors elected
in this manner would hold office for the remaining term of the class to which
they are elected. The Articles of Incorporation relating to the classified board
can only be amended by the affirmative vote of the holders of at least
two-thirds of the voting power of the outstanding shares.
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 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
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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
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
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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.
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ITEM 2. EXHIBITS.
3.1 Articles of Incorporation of Recovery Engineering, Inc., as
amended
3.2 Bylaws of Recovery Engineering, Inc.
4.1 Specimen Certificate for Common Stock
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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 amendment to registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
Dated: June 29, 1999 RECOVERY ENGINEERING, INC.
By /s/ BRIAN F. SULLIVAN
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Brian F. Sullivan
Chief Executive Officer
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INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION METHOD OF FILING
3.1 Articles of Incorporation of Recovery Filed as Exhibit 3.1 to the
Engineering, Inc., as amended Company's Quarterly Report on
Form 10-Q for the quarterly
period ended April 4, 1999
(File No. 0-21232) and
incorporated herein by
reference
3.2 Bylaws of Recovery Engineering, Inc. Filed as Appendix 2 to the
Company's Proxy Statement
dated March 27, 1996 (File
No. 0-21232) and incorporated
herein by reference
4.1 Specimen Certificate for Common Filed as Exhibit 4.1 to the
Stock Company's Form 8-A
Registration Statement, as
amended December 4, 1997 (File
No. 0-21232) and incorporated
herein by reference
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