UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): September 28, 2018
MANITEX INTERNATIONAL, INC.
(Exact Name of Registrant as Specified in Charter)
| Michigan | 001-32401 | 42-1628978 | ||
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(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
9725 Industrial Drive, Bridgeview, Illinois 60455
(Address of Principal Executive Offices) (Zip Code)
(708) 430-7500
(Registrant’s Telephone Number, Including Area Code)
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01. |
Entry into a Material Definitive Agreement. |
Second Amendment to Rights Agreement
On October 2, 2018, Manitex International, Inc. (the “Company”) entered into a second amendment (the “Second Amendment”) to its Rights Agreement, dated as of October 17, 2008, as amended by that certain First Amendment to Rights Agreement, dated as of May 24, 2018 (as amended, the “Rights Agreement”). The main modification to the Rights Agreement resulting from the Second Amendment is the extension of the final expiration date of the rights under the Rights Agreement to September 13, 2028.
The Company described the material terms of the Rights Agreement in Item 1.01 of its Current Report on Form 8-K dated October 20, 2008, and Item 3.03 of its Current Report on Form 8-K dated May 31, 2018, and incorporates those descriptions herein by this reference, appropriately modified as set forth above. The foregoing is only a summary of certain terms and conditions of the Second Amendment and is qualified in its entirety by reference to the Second Amendment, which is attached as Exhibit 4.1 to this Current Report on Form 8-K and incorporated by reference herein.
Amendment to Lease Agreement
On May 26, 2010, the Company entered into a lease agreement (the “Lease”) with KB Building, LLC, an entity controlled by Mr. David J. Langevin, the Company’s Chairman and CEO, for an initial six year term with six one year extension periods. Under the terms of the Lease, the Company leases the land and building located at 9725 South Industrial Drive, Bridgeview, Illinois 60455. On June 6, 2014, the Lease was amended to lengthen the initial lease term to ten years and to provide that the six one year extension periods begin after ten years instead of six years. Due to the related-party aspect of this transaction, both the Lease and the 2014 amendment were approved by the Audit Committee of the Company’s Board of Directors.
On October 3, 2018, the Lease was amended (the “Lease Amendment”) to extend the initial lease term to fifteen years (expiring in May 2025). The Lease Amendment also modified the Lease to provide for a five year renewal at the end of the initial term and six subsequent one year renewal terms thereafter, in each case, at the option of the Company. Due to the related-party aspect of this transaction, the Lease Amendment was approved by the Audit Committee of the Company’s Board of Directors.
The description of the Lease Amendment set forth herein does not purport to be complete and is qualified in its entirety by reference to the full text of the Lease Amendment as attached as Exhibit 10.2 to this Current Report on Form 8-K and incorporated by reference herein.
| Item 2.03. |
Creation of a Direct Financial Obligation or an Obligation under an Off- Balance Sheet Arrangement of a Registrant. |
The information included in Item 1.01 of this Current Report on Form 8-K under the heading “Amendment to Lease Agreement” is incorporated by reference into this Item 2.03.
| Item 3.01. |
Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
The Company has been communicating with the Listing Qualifications Department of the Nasdaq Stock Market LLC (“Nasdaq”) regarding an issue of inadvertent non-compliance with Nasdaq Listing Rule 5635(c).
Listing Rule 5635(c) requires shareholder approval prior to the issuance of securities when a stock option or purchase plan is to be established or materially amended or other equity compensation arrangement made or materially amended, pursuant to which stock may be acquired by officers, directors, employees or consultants. As disclosed in the Company’s periodic filings, in January 2018, the Company issued 2,500 shares of common stock to a consultant pursuant to the Company’s Second Amended and Restated 2004 Equity Incentive Plan, as amended (the “Plan”). In September 2018, the Company determined that the shares should not have been issued pursuant to the Plan, because the Plan permits grants to be made only to employees and non-employee directors of the Company, and not to consultants. As a result, the grant to the consultant was not made in compliance with Listing Rule 5635(c). The Company has notified Nasdaq that the consultant has surrendered the shares for cancellation and that the Company will enter into an alternative arrangement with the consultant.
On September 28, 2018, the Company received a letter from Nasdaq stating that, because the Company made a grant to the consultant that was not permitted by the Plan, Nasdaq had determined that the Company did not comply with Listing Rule 5635(c). Nasdaq further determined that, as a result of the remedial action taken, the Company has regained compliance with the Rule and that this matter is now closed.
| Item 3.03. |
Material Modification to Rights of Security Holders. |
The information set forth under Item 1.01 of this Current Report on Form 8-K under the heading “Second Amendment to Rights Agreement” is incorporated herein by reference.
| Item 9.01. |
Financial Statements and Exhibits. |
(d) Exhibits
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| MANITEX INTERNATIONAL, INC. | ||
| By: |
/s/ David J. Langevin |
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| Name: | David J. Langevin | |
| Title: | Chief Executive Officer | |
Date: October 3, 2018
Exhibit 4.1
SECOND AMENDMENT TO RIGHTS AGREEMENT
THIS SECOND AMENDMENT TO RIGHTS AGREEMENT (this “Amendment”) is made and entered into as of October 2, 2018 between MANITEX INTERNATIONAL, INC. , a Michigan corporation (the “Company”), and AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC (the “Rights Agent”). Except as otherwise provided herein, all capitalized terms used in this Amendment and not defined herein shall have the meanings ascribed thereto in the Rights Agreement.
W I T N E S S E T H:
WHEREAS , the Company and the Rights Agent have entered into that certain Rights Agreement, dated as of October 17, 2008, as amended by that certain First Amendment to Rights Agreement, dated as of May 24, 2018 (as amended, the “Rights Agreement”);
WHEREAS , pursuant to Section 27 of the Rights Agreement, subject to the penultimate sentence of Section 27, the Company may and the Rights Agent shall, if the Company so directs, supplement or amend any provision of the Rights Agreement without the approval of any holders of certificates representing Common Shares of the Company and without the approval of any holder of Rights Certificates, in any manner which the Company deems necessary or desirable and which shall not adversely affect the interests of the holders of Rights Certificates;
WHEREAS , the Board of Directors has determined, that it is necessary and desirable and in the interest of the holders of the Common Shares and the Rights Certificates to amend the Rights Agreement as set forth herein; and
WHEREAS , subject to and in accordance with the terms of this Amendment, the Company has directed and the Rights Agent has agreed to amend the Rights Agreement in certain respects, as more particularly set forth herein.
NOW, THEREFORE , in consideration of the premises and the mutual agreements set forth in the Rights Agreement and this Amendment, the parties hereto agree to modify the Rights Agreement as set forth below.
Section 1. Amendment to Section 1(a) . Section 1(a) of the Rights Agreement is hereby amended and restated as follows:
“(a) “Acquiring Person” shall mean any Person (as such term is hereinafter defined) who or which, together with all Affiliates and Associates (as such terms are hereinafter defined) of such Person, shall be the Beneficial Owner (as such term is hereinafter defined) of 15% or more of the Common Shares of the Company then outstanding, but shall not include the Company, any Subsidiary (as such term is hereinafter defined) of the Company, any employee benefit plan of the Company or any Subsidiary of the Company, any entity holding Common Shares for or pursuant to the terms of any such plan, any trustee, administrator or fiduciary of such a plan, or Tadano (but only, in the case of Tadano, so long as Tadano Beneficially Owns, in the aggregate, less than 30% of the Common Shares of the Company then outstanding).
Notwithstanding the foregoing, no Person shall become an “Acquiring Person” as a result of an acquisition of Common Shares by the Company which, by reducing the number of shares outstanding, increases the proportionate number of shares beneficially owned by such Person to 15% (or, in the case of Tadano, 30%) or more of the Common Shares of the Company then outstanding; provided, however, that if a Person would, but for the foregoing, become an Acquiring Person by reason of share purchases by the Company and shall, after such share purchases by the Company, become the Beneficial Owner of any additional Common Shares of the Company, at any time that the Person is or thereby becomes the Beneficial Owner of 15% (or, in the case of Tadano, 30%) or more of the Common Shares of the Company then outstanding (other than Common Shares acquired solely as a result of corporate action of the Company not caused, directly or indirectly, by such Person), then such Person shall be deemed to be an “Acquiring Person”. Notwithstanding the foregoing, if the Board of Directors of the Company determines in good faith that a Person who would otherwise be an “Acquiring Person”, as defined pursuant to the foregoing provisions of this paragraph (a), has become such inadvertently, and such Person divests as promptly as practicable a sufficient number of Common Shares so that such Person would no longer be an “Acquiring Person,” as defined pursuant to the foregoing provisions of this paragraph (a), then such Person shall not be deemed to be an “Acquiring Person” for any purposes of this Agreement.”
Section 2. Amendment to Section 1(j) . Section 1(j) of the Rights Agreement is hereby amended and restated as follows:
“(j) [Intentionally omitted.]”
Section 3. Amendment to Section 3(a) . Section 3(a) of the Rights Agreement is hereby amended and restated as follows:
“(a) Until the earlier of (i) the tenth day after the Shares Acquisition Date or (ii) the tenth Business Day (or such later date as may be determined by action of the Company’s Board of Directors prior to such time as any Person becomes an Acquiring Person) after the date of the commencement of, or of the first public announcement of the intention of any Person to commence, a tender or exchange offer the consummation of which would result in any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, any entity holding Common Shares for or pursuant to the terms of any such plan, or any trustee, administrator, or fiduciary of such a plan) becoming the Beneficial Owner of Common Shares of the Company aggregating 15% (or, in the case of Tadano, 30%) or more of the then outstanding Common Shares (including in either case any such date which is after the date of this Agreement and prior to the Payment Date; the earlier of such dates being herein referred to as the “Distribution Date”; provided, however, that if the tenth day or Business Day, as the case may be, after the pertinent date occurs before the Record Date, “Distribution Date” shall mean the Record Date), (x) the Rights will be evidenced (subject to the provisions of Section 3(b) hereof) by the certificates for Common Shares of the Company registered in the names of the holders thereof (which certificates shall also be deemed to be Right Certificates) and not by separate Right Certificates, and (y) the right to receive Right Certificates will be transferable only in connection with the transfer of Common Shares of the Company. As soon as practicable after the Distribution Date, the Company will prepare and execute, the Rights
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Agent will countersign, and the Company will send or cause to be sent (and the Rights Agent will, if requested, send) by first-class, insured, postage-prepaid mail, to each record holder of Common Shares of the Company as of the close of business on the Distribution Date, at the address of such holder shown on the records of the Company, a Right Certificate, in substantially the form of Exhibit B hereto (a “Right Certificate”), evidencing one Right for each Common Share of the Company so held. As of the Distribution Date, the Rights will be evidenced solely by such Right Certificates.”
Section 4. Amendment to Section 7(a) . Section 7(a) of the Rights Agreement is hereby amended and restated as follows:
“(a) The registered holder of any Right Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein) in whole or in part at any time after the Distribution Date upon surrender of the Right Certificate, with the form of election to purchase on the reverse side thereof duly executed, to the Rights Agent at the principal office of the Rights Agent, together with payment of the Purchase Price for each one one-hundredth of a Preferred Share as to which the Rights are exercised, at or prior to the earliest of (i) the close of business on September 13, 2028, subject to extension (the “Final Expiration Date”), (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the “Redemption Date”), and (iii) the time at which such Rights are exchanged as provided in Section 24 hereof.”
Section 5. Amendment to Exhibit C . The fourth (4 th ) paragraph of Exhibit C to the Rights Agreement is hereby amended and restated as follows:
“(a) The Rights are not exercisable until the Distribution Date. The Rights will expire on September 13, 2028 (the “Final Expiration Date”), subject to extension, unless the Rights are earlier redeemed or exchanged by the Company, in each case as described below.”
Section 6. Effective Time of this Amendment . This Amendment shall be effective as of the date hereof.
Section 7. Direction to the Rights Agent . Pursuant to Section 27 of the Rights Agreement, by its execution and delivery hereof, the Company directs the Rights Agent to execute and deliver this Amendment, and the officer of the Company executing this Amendment on behalf of the Company, as an appropriate officer of the Company, certifies on behalf of the Company that this Amendment complies with the terms of the Rights Agreement. For the avoidance of doubt and notwithstanding anything to the contrary set forth in this Amendment, this Amendment does not affect the Rights Agent’s own rights, duties, obligations or immunities under the Rights Agreement.
Section 8. Confirmation of the Rights Agreement . The term “Agreement” or “Rights Agreement” as used in the Rights Agreement shall be deemed to refer to the Rights Agreement as amended by this Amendment. Except as amended or modified hereby, all terms, covenants and conditions of the Rights Agreement as heretofore in effect shall remain in full force and effect and are hereby ratified and confirmed in all respects.
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Section 9. Benefits of this Agreement . Nothing in this Amendment shall be construed to give to any person or corporation other than the Company, the Rights Agent and the registered holders of the Right Certificates (and, prior to the Distribution Date, the Common Shares of the Company) any legal or equitable right, remedy or claim under this Agreement; but this Agreement shall be for the sole and exclusive benefit of the Company, the Rights Agent and the registered holders of the Right Certificates (and, prior to the Distribution Date, the Common Shares of the Company).
Section 10. Severability . If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
Section 11. Governing Law . This Agreement and each Right Certificate issued hereunder shall be deemed to be a contract made under the laws of the State of Michigan and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts to be made and performed entirely within such State.
Section 12. Counterparts . This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
Section 13. Descriptive Headings . Descriptive headings of the several Sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof.
[ Signature Page Follows ]
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IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be duly executed and attested, all as of the day and year first above written.
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MANITEX INTERNATIONAL, INC. |
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By: |
/s/ David J. Langevin |
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Title: |
Chairman and CEO |
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| AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC | ||
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By: |
/s/ Michael A. Nespoli |
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Title: |
Executive Director |
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Michael A. Nespoli |
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Exhibit 10.1
Lease Amendment
This lease amendment dated the 3rd day of October, 2018, amends that certain lease entered into May 26 th , 2010 by and between Manitex International, Inc (‘Tenant”) and KB Building LLC. (“Landlord”).
WHEREAS Tenant wishes to extend the term of the Lease and Landlord is willing to do so,
NOW THEREFORE landlord and Tenant agree as follows:
| 1. |
Paragraph 2.01 is hereby amended to read: |
The term of this Lease (the “Term”) shall commence May 26, 2010 on the date hereof (the “Commencement Date”) and shall end on the last day of the one hundred and eightieth (180 th ) full calendar month after the Commencement Date, or if one or more extension options is/are exercised by Tenant as provided herein, the date for expiration of the last such extension to be exercised (the “Expiration Date”).
| 2. |
Paragraph 27.01 is hereby amended to read: |
Tenant shall have the option to extend the term of this Lease for a five year period from the current Expiration Date and thereafter for six additional one year periods, the first such extension period beginning on the first day of the one hundred and eighty first (181 st ) full calendar month after the Commencement Date and ending on the last day of the two hundred and forty second (242 nd ) full calendar month after the Commencement Date (such extension period hereinafter referred to as the “First Extension Term”). Similarly, each additional successive extension period (from time to time referred to herein as the “Extension Terms”) shall commence on the first day immediately following the expiration of the preceding term, and terminate at the end of twelve months thereafter. Notwithstanding the foregoing, however, Tenant shall not be entitled to so extend the Term of the Lease if Tenant is in default under this Lease at the time for exercise of any such extension beyond applicable notice and cure periods provided herein. The option to extend the Term granted to Tenant shall be automatic for each successive Extension Term, and each successive Extension Term shall commence automatically upon the expiration of the then current Term unless, Tenant gives written notice to Landlord, not less than six (6) months prior to the Expiration Date of the First, or any subsequent Extension Term, that it wishes not to extend the Term beyond the then current Expiration Date.
| LANDLORD: | TENANT: | |||||||||
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KB Building, LLC, |
MANITEX, INTERNATIONAL INC., |
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An Illinois limited liability company |
a Michigan corporation |
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By |
/s/ David J. Langevin |
By |
/s/ Steve Kiefer |
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David J. Langevin |
Steve Kiefer, President |
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/s/ Dorothy A. Lesniak |
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Notary Public Cook County, Illinois |
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Acting in Cook County, Illinois |
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My Commission Expires: 11/9/21 |
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(2)