-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CffapHmVbff2gU0o4eR1+8NrmXhqXbfwYVpGb5cWSbGixlZG78TW02Ct4T8AD+pv ROlV665VI4FckS63U5yNdA== 0000950137-98-000548.txt : 19980218 0000950137-98-000548.hdr.sgml : 19980218 ACCESSION NUMBER: 0000950137-98-000548 CONFORMED SUBMISSION TYPE: 10-12B/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980217 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: SCOTSMAN INDUSTRIES INC CENTRAL INDEX KEY: 0000846660 STANDARD INDUSTRIAL CLASSIFICATION: AIR COND & WARM AIR HEATING EQUIP & COMM & INDL REFRIG EQUIP [3585] IRS NUMBER: 363635892 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-12B/A SEC ACT: SEC FILE NUMBER: 001-10182 FILM NUMBER: 98541935 BUSINESS ADDRESS: STREET 1: 820 FOREST EDGE DR CITY: VERNON HILLS STATE: IL ZIP: 60061 BUSINESS PHONE: 8472154600 10-12B/A 1 AMENDMENT TO NO. 5 TO FORM 10 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 17, 1998 _________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10/A AMENDMENT NO. 5 TO FORM 10 GENERAL FORM FOR REGISTRATION OF SECURITIES PURSUANT TO SECTION 12(B) OR (G) OF THE SECURITIES EXCHANGE ACT OF 1934 SCOTSMAN INDUSTRIES, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 36-3635892 (STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.) 775 CORPORATE WOODS PARKWAY VERNON HILLS, ILLINOIS 60061 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (847) 215-4500 THE UNDERSIGNED REGISTRANT HEREBY AMENDS THE FOLLOWING ITEMS, FINANCIAL STATEMENTS, EXHIBITS OR OTHER PORTIONS OF ITS REGISTRATION STATEMENT ON FORM 10 AS SET FORTH IN THE PAGES ATTACHED HERETO: ITEM 11. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED. ITEM 15(B). EXHIBITS. _________________________________________________________________ 2 Item 11. Description of Registrant's Securities to be Registered. On February 10, 1998 and February 11, 1998, Scotsman Industries, Inc., a Delaware corporation (the "Company"), and Harris Trust & Savings Bank, as Rights Agent (the "Rights Agent"), amended the Rights Agreement, dated as of April 14, 1989, as amended as of January 11, 1994, between the Company and the Rights Agent. All references herein to the "Rights Agreement" shall mean the Rights Agreement as so amended. The amendments to the Rights Agreement are attached hereto as Exhibits 4F and 4G, respectively, and are incorporated herein by reference. The description contained under the section "Purposes and Effects of Certain Charter and By-Law Provisions and of the Rights Plans -- The Rights Plans" in the Information Statement contained in the Form 10 Registration Statement pursuant to which the Rights were registered is amended by deleting such description in its entirety and substituting therefor the following: "On or prior to April 14, 1989, the Board of Directors of the Company adopted a Rights Plan (the "Rights Plan") and declared a distribution of one common stock purchase right (a "Right") for each share of common stock, par value $.10 per share ("Common Stock"), of the Company. Each Right entitles the holder thereof until the earlier of May 1, 1999 (the "Final Expiration Date"), and the redemption of the Rights (the "Redemption Date") to purchase shares of Common Stock of the Company at a purchase price of $48, subject to adjustment (the "Purchase Price"). The description and terms of the Rights are set forth in a Rights Agreement, as amended (the "Rights Agreement"), between the Company and Harris Trust & Savings Bank, as Rights Agent (the "Rights Agent"). The Rights are represented by the certificates for the Common Stock of the Company, are not exercisable and are not transferable apart from the Common Stock of the Company until the earlier of (i) the tenth day after a public announcement that a Person (as defined in the Rights Agreement)(other than (a) the Company, (b) any Subsidiary (as so defined) of the Company, (c) any employee benefit plan of the Company or any Subsidiary of the Company, or any entity holding shares of Common Stock of the Company for or pursuant to the terms of any such plan, (d) any Group (as such term is hereinafter defined) if and so long as (x) 95% of the shares of Common Stock beneficially owned by such Group are beneficially owned (other than by reason of being a member of such Group) by New Scotsman Stockholders (as defined in the Delfield Merger Agreement (as such term is hereinafter -1- 3 defined)), Permitted Persons (as such term is hereinafter defined) or Related Persons (as such term is hereinafter defined) of a New Scotsman Stockholder or a Permitted Person and (y) each member of such Group beneficially owns no shares of Common Stock other than by reason of being a member of such Group and other than (I) shares of Common Stock acquired by such member pursuant to the Delfield Merger Agreement or the Whitlenge Share Acquisition Agreement (including, without limitation, shares acquired, or entitled to be acquired, under benefit plans of the Company by individuals designated or elected as directors of the Company in accordance with the terms of the Delfield Merger Agreement or the Whitlenge Share Acquisition Agreement), (II) shares of Common Stock listed on Schedule 3.3(b) to the Delfield Merger Agreement as being owned by such member, (III) shares of Common Stock acquired upon conversion of shares of the Company's Series A $0.62 Cumulative Convertible Preferred Stock (the "Series A Preferred Stock") acquired by such member pursuant to the Delfield Merger Agreement, (IV) any shares of Common Stock issued as, or issued directly or indirectly upon the conversion of other securities issued as, a dividend or other distribution with respect to or in replacement of such shares of Common Stock or Series A Preferred Stock or (V) with respect to shares beneficially owned by a Related Person of a New Scotsman Stockholder or a Related Person of a Permitted Person, shares of Common Stock acquired from such New Scotsman Stockholder or Permitted Person; provided that the provisions of this clause (d) shall expire on January 12, 1999 and (e) any Group existing on and after January 12, 1999 solely by reason of the provisions of Sections 7.1 and 7.2 and the penultimate sentence of Section 7.3 of the Delfield Merger Agreement and Section 5.1 of the Whitlenge Share Acquisition Agreement and any agreements among the members of such Group to effectuate such provisions) alone or together with Affiliates (as defined in the Rights Agreement) and Associates (as so defined) of such Person (an "Acquiring Person"), has become the Beneficial Owner (as so defined) of shares of Common Stock of the Company equal to, in the case of an Existing 15% Holder (as such term is hereinafter defined), an additional 1% of the outstanding shares of Common Stock (the "Increased Percentage") or more, or, in the case of any other Person, 15% (or such lower threshold not less than 10% as may be established by the Board of Directors of the Company) or more of the outstanding shares of Common Stock of the Company or (ii) the tenth business day (or such later date as may be determined by action of the Board of Directors of the Company prior to such time as any Person becomes an Acquiring Person) following the commencement of, or announcement of an intention to commence, an offer the consummation of which would result in a Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company, or any entity holding shares of common stock of the Company for or pursuant to the terms of any such plan) beneficially owning shares of Common Stock of the -2- 4 Company equal to, in the case of an Existing 15% Holder, the Increased Percentage or more, or, in the case of any other Person, 15% (or such lower threshold not less than 10% as may be established by the board of directors of the Company) or more of the outstanding shares of Common Stock of the Company (the earlier of (i) or (ii) being called the "Rights Distribution Date"). Notwithstanding the foregoing, any person whom the Board of Directors determines, in good faith, inadvertently became an Acquiring Person and who promptly divests a sufficient number of shares of Common Stock so that such person would no longer otherwise constitute an Acquiring Person shall not constitute an Acquiring Person. For purposes of the foregoing, (i) "Delfield Merger Agreement" shall mean the Agreement and Plan of Merger dated as of January 11, 1994 among the Company, Scotsman Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary of the Company, DFC Holding Corporation, a Delaware corporation, The Delfield Company, a Delaware corporation, and certain other parties thereto, (ii) "Whitlenge Share Acquisition Agreement" shall mean the Share Acquisition Agreement dated as of January 11, 1994 among the Company, Whitlenge Acquisition Limited, a private company limited by shares registered in England, Whitlenge Drink Equipment Limited, a private company limited by shares registered in England, and certain other parties thereto, (iii) "Group" shall mean two or more Persons acting or agreeing to act as a partnership, limited partnership, syndicate or other group for the purpose of acquiring, holding, voting or disposing of Common Stock of the Company, (iv) a "Permitted Person" shall mean Continental Bank, N.A. and any other person listed on Schedule 3.3(b) of the Delfield Merger Agreement as beneficially owning shares of Common Stock, (v) a "Related Person" of a New Scotsman Stockholder or a Permitted Person shall mean any Affiliate or Associate of such New Scotsman Stockholder or Permitted Person, any relative, spouse or descendent of such New Scotsman Stockholder or Permitted Person, the spouse of any such descendent, the estate of such New Scotsman Stockholder or Permitted Person, any such descendent or the spouse of any such descendent, any trust for the benefit of such New Scotsman Stockholder or Permitted Person, any such descendent or the spouse of any such descendent or any charitable organization established for the benefit of such New Scotsman Stockholder or Permitted Person, any such descendent or the spouse of any such descendent and (vi) "Existing 15% Holder" shall mean any Person who or which, together with all Affiliates and Associates of such Person, was the Beneficial Owner, as of February 11, 1998, of 15% or more of the shares of Common Stock of the Company then outstanding. -3- 5 Until the Rights Distribution Date (or earlier redemption or expiration of the Rights), the surrender for transfer of any certificates for Common Stock of the Company also will constitute the transfer of the Rights associated with the shares of Common Stock represented by such certificate. Following the Rights Distribution Date, or, with respect to shares of Common Stock of the Company issued on or after the Rights Distribution Date and prior to the earlier of the Redemption Date and the Final Expiration Date by reason of the exercise of any option, warrant, right or conversion privilege contained in any option, warrant, right or convertible security issued by the Company prior to the Rights Distribution Date (other than the Rights), simultaneously with the issuance of such shares of Common Stock, separate certificates for the Rights will be mailed to holders of record of the shares of Common Stock as of such date. The Rights could then begin trading separately from the shares of Common Stock. In the event that on or after the first date of public announcement by the Company or an Acquiring Person that an Acquiring Person has become such (the "Shares Acquisition Date") the Company is acquired in a merger or other business combination transaction or 50% or more of its consolidated assets or earning power are sold in one or a series of transactions (other than in the ordinary course of business), proper provision will be made so that each holder of a Right will thereafter have the right to receive, upon the exercise thereof at the then current Purchase Price of the Right, that number of shares of common stock of the acquiring company which at the time of such transaction will have a market value of two times the Purchase Price of the Right. In the event that any Person, together with its Affiliates and Associates, has become the Beneficial Owner of shares of Common Stock of the Company equal to, in the case of an Existing 15% Holder, the Increased Percentage or more, or, in the case of any other Person, 15% (or such lower threshold not less than 10% as may be established by the Board of Directors of the Company) or more of the shares of Common Stock of the Company then outstanding, proper provision will be made so that each holder of a Right, other than Rights beneficially owned by the Acquiring Person (which will thereafter be void), will thereafter have the right to receive upon exercise that number of shares of Common Stock of the Company having a market value of two times the Purchase Price of the Right. Under no circumstances may a Right be exercised following the occurrence of the event set forth in the preceding sentence prior to the expiration of the Company's right of redemption. At any time after any Person becomes an Acquiring Person and prior to the acquisition by any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or any Subsidiary of the Company, or any entity -4- 6 holding shares of Common Stock of the Company for or pursuant to the terms of any such plan), together with all Affiliates and Associates of such Person, of 50% or more of the outstanding shares of Common Stock of the Company, the Board of Directors of the Company may exchange the Rights (other than those Rights owned by the Acquiring Person or its Affiliates or Associates which have become void), in whole or in part, for additional shares of Common Stock of the Company at an exchange ratio of one share of Common Stock of the Company (or of a share of a class or series of the Company's preferred stock having equivalent rights, preferences and privileges), per Right (subject to adjustment). The Rights are not exercisable until the Rights Distribution Date. The Rights will expire on the Final Expiration Date, unless the Final Expiration Date is extended or unless the Rights are earlier redeemed by the Company, in each case as described below. Until a Right is exercised, the holder thereof, as such, will have no rights as a shareholder of the Company, including, without limitation, the right to vote or to receive dividends. At any time prior to the earlier to occur of (i) the tenth business day (subject to extension) after the Shares Acquisition Date or (ii) the Final Expiration Date, the Company may redeem the Rights in whole, but not in part, at the price of $.01 per Right, appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring after the Distribution Date (the "Redemption Price"). The redemption of the Rights may be made effective at such time on such basis and with such conditions as the Board of Directors of the Company in its sole discretion may establish. After the redemption period has expired, the Company's right of redemption may be reinstated in certain instances if an Acquiring Person reduces its beneficial ownership to 10% or less of the outstanding shares of Common Stock in a transaction or series of transactions not involving the Company. Promptly upon the action of the Board of Directors of the Company electing to redeem the Rights, the Company shall make announcement thereof, and from and after the date of such election by the board of directors to redeem the Rights, the right to exercise the Rights will terminate, and the only right of the holders of Rights will be to receive the Redemption Price per Right. The Purchase Price payable, the number of outstanding rights and the number of shares of Common Stock or other securities or property issuable, upon exercise of the Rights are subject to adjustment from time to time to prevent dilution (i) in the event of a stock dividend on, or a subdivision, combination or reclassification of, the Common Stock, (ii) upon the grant to holders of the shares of Common Stock of certain rights or warrants to subscribe for or purchase shares of Common -5- 7 Stock at a price, or securities convertible into shares of Common Stock with a conversion price, less than the then current market price of the shares of Common Stock or (iii) upon the distribution to holders of the shares of Common Stock of evidences of indebtedness or assets (excluding a regular quarterly cash dividend not in excess of 125% of the rate of the last regular quarterly cash dividend theretofore paid or a dividend theretofore paid or a dividend payable in shares of Common Stock) or of subscription rights or warrants (other than those referred to above). With certain exceptions, no adjustment in the Purchase Price will be required until cumulative adjustments require an adjustment of at least 1% in such Purchase Price. No fractional shares of Common Stock will be issued and in lieu thereof, an adjustment in cash will be made based on the market price of the Common Stock on the last trading day prior to the date of exercise. The terms of the Rights may be amended by the Board of Directors of the Company in any manner (including to shorten or lengthen any time period such as the redemption period) at any time prior to the Rights Distribution Date of the Rights and thereafter by the Board of Directors of the Company in certain respects, including: (a) generally to shorten or lengthen any time period, provided, however that the Rights Agreement cannot be amended to lengthen (i) any time period (other than a time period relating to when the Rights may be redeemed at such time as the Rights are not redeemable) unless (A) approved by a majority of the Disinterested Directors (as defined in the Rights Agreement) and (B) such lengthening is for the benefit of the holders of the Rights or (ii) a time period for redemption at such time as the Rights are not then redeemable; and (b) other amendments not adverse to the interests of holders of the Rights. The Company will issue one Right with each share of Common Stock that shall become outstanding prior to the Rights Distribution Date. In addition, Rights will be issued (unless the Board of Directors of the Company otherwise provides) with each share of Common Stock of the Company issued before or after the Rights Distribution Date upon the conversion of convertible securities or the exercise of options issued or granted prior to the Rights Distribution Date. The Company views the Rights Plan as a desirable measure to protect the Company and its shareholders from certain nonnegotiated takeover attempts which present the risk of change of control on terms which may be less favorable to the Company's shareholders than would be available in a transaction negotiated with and approved by the Board of Directors of the Company. Although there can be no certainty as to the results of any -6- 8 particular negotiation, the Board of Directors of the Company believes that the interests of the shareholders are best served if any acquisition of the Company or a substantial percentage of the shares of Common Stock results from arm's length negotiations and reflects the Board of Directors' careful consideration of the proposed terms of a transaction. In particular, the Rights Plan is intended to mitigate against market accumulators who through open market or private purchases may achieve a position of substantial influence or control without paying to selling or remaining shareholders a fair control premium. The Rights Plan is expected to achieve these goals by confronting a potential acquiror of shares of Common Stock with the possibility that the Company's shareholders will be able to dilute substantially the acquiror's equity interest by exercising the Rights issued under the Rights Plan to buy additional stock in the Company (or in certain cases, stock of the acquiror) at a substantial discount in the event that the acquiror triggered certain events set forth in the Rights Agreement. The exercise of the Rights would significantly increase the Company's market capitalization, thereby making an acquisition of the Company more expensive and diluting the Company's earnings." Item 15(b). Exhibits. Exhibit No. Description 4F Amendment No. 2 to Rights Agreement dated as of February 10, 1998 between the registrant and Harris Trust & Savings Bank, as Rights Agent. 4G Amendment No. 3 to Rights Agreement dated as of February 11, 1998 between the registrant and Harris Trust & Savings Bank, as Rights Agent. -7- 9 SIGNATURES Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this amendment to its Form 10 to be signed on its behalf by the undersigned, thereto duly authorized. SCOTSMAN INDUSTRIES, INC. By: Donald D. Holmes ------------------------- Name: Donald D. Holmes Title: Chief Financial Officer Date: February 13, 1998 10 EXHIBIT INDEX Exhibit No. Description 4F Amendment No. 2 to Rights Agreement dated as of February 10, 1998 between the registrant and Harris Trust & Savings Bank, as Rights Agent. 4G Amendment No. 3 to Rights Agreement dated as of February 11, 1998 between the registrant and Harris Trust & Savings Bank, as Rights Agent. EX-4.(F) 2 AMENDMENT NO. 2 TO RIGHTS AGREEMENT 1 AMENDMENT NO. 2 TO RIGHTS AGREEMENT AMENDMENT, dated as of February 10, 1998 (this "Amendment"), to the Rights Agreement dated as of April 14, 1989, as amended as of January 11, 1994 (as amended, the "Rights Agreement"), between Scotsman Industries, Inc., a Delaware corporation (the "Company"), and Harris Trust & Savings Bank, an Illinois banking corporation (the "Rights Agent"). WHEREAS, pursuant to and in compliance with Section 27 of the Rights Agreement, the Company and the Rights Agent desire to amend the Rights Agreement as set forth in this Amendment. NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein and in the Rights Agreement, the parties hereto hereby agree as follows: Section 1. Section 27 of the Rights Agreement is hereby amended to substitute the following for the fourth sentence of Section 27: "Without limiting the foregoing, the Company may at any time prior to such time as any Person becomes an Acquiring Person amend this Agreement to lower the thresholds set forth in Section 1(a) (other than the 95% threshold set forth in clause (x) of Section 1(a)) and/or to lower the threshold set forth in Section 3(a) and/or to lower the thresholds set forth in Sections 11(a)(ii)(B) and 11(a)(iii) (other than the threshold set forth in the proviso contained in Section 11(a)(iii)), in each case, to a percentage that (subject to exceptions for specified Persons or Groups excepted from the definition of "Acquiring Person") is not less than the greater of (x) any percentage greater than the largest percentage of the outstanding shares of Common Stock then known by the Company to be beneficially owned by any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or any Subsidiary of the Company, any entity holding shares of Common Stock for or pursuant to the terms of any such plan or any Person or Group otherwise excepted from the definition of "Acquiring Person") and (y) 10%; provided, however, that if the thresholds set forth in Sections 11(a)(ii)(B) and 11(a)(iii) (other than the threshold set forth in the proviso contained in Section 11(a)(iii)) are reduced to a percentage which is less than 20%, then the thresholds set forth in Section 1(a) 2 (other than the 95% threshold set forth in clause (x) of Section 1(a)) shall also be reduced to the same percentage." Section 2. The form of Right Certificate attached to the Rights Agreement as Exhibit A, as amended by Amendment No. 1 to Rights Agreement dated as of January 11, 1994, is hereby further amended by adding the following phrase after the words "as amended as of January 11, 1994" which were added by such Amendment No. 1: "and February 10, 1998" Section 3. This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware. Section 4. This Amendment 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 5. Except as expressly set forth herein, this Amendment shall not by implication or otherwise alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Rights Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect. -2- 3 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and attested, all as of the day and year first above written. SCOTSMAN INDUSTRIES, INC. Attest: Donald D. Holmes By: Richard C. Osborne - ----------------------------- ----------------------------- Name: Donald D. Holmes Name: Richard C. Osborne Title: Vice President-Finance Title: Chairman of the Board, President and CEO HARRIS TRUST & SAVINGS BANK Attest: Susan M. Shadel By: Ken Penn - ----------------------------- ----------------------------- Name: Susan M. Shadel Name: K. W. Penn Title: Assistant Vice Title: Assistant Vice President President - 3 - EX-4.(G) 3 AMENDMENT NO. 3 TO RIGHTS AGREEMENT 1 AMENDMENT NO. 3 TO RIGHTS AGREEMENT AMENDMENT, dated as of February 11, 1998 (this "Amendment"), to the Rights Agreement dated as of April 14, 1989, as amended as of January 11, 1994 and February 10, 1998 (as amended, the "Rights Agreement"), between Scotsman Industries, Inc., a Delaware corporation (the "Company"), and Harris Trust & Savings Bank, an Illinois banking corporation (the "Rights Agent"). WHEREAS, pursuant to and in compliance with Section 27 of the Rights Agreement, the Company and the Rights Agent desire to amend the Rights Agreement as set forth in this Amendment. NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein and in the Rights Agreement, the parties hereto hereby agree as follows: Section 1. Section 1(a) of the Rights Agreement is hereby amended to read in its entirety 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, (x) was the Beneficial Owner (as such term is hereinafter defined), as of February 11, 1998, of 15% or more of the shares of Common Stock of the Company then outstanding (an "Existing 15% Holder") and thereafter shall be the Beneficial Owner of a percentage of the shares of Common Stock of the Company then outstanding equal to or greater than the percentage of shares of Common Stock of the Company beneficially owned by such Existing 15% Holder, together with all Affiliates and Associates of such Existing 15% Holder, as of February 11, 1998, plus 1% (the "Increased Percentage") or (y) is not an Existing 15% Holder but is the Beneficial Owner of 15% or more of the shares of Common Stock of the Company then outstanding, but in any case shall not include (i) the Company, (ii) any Subsidiary (as such term is hereinafter defined) of the Company, (iii) any employee benefit plan of the Company or any Subsidiary of the Company or any entity holding shares of Common Stock for or pursuant to the terms of any such plan, (iv) any Group (as such term is hereinafter defined) if and so long as (I) 95% of the shares of Common Stock beneficially owned by such 2 Group are beneficially owned (other than by reason of being a member of such Group) by New Scotsman Stockholders (as such term is defined in the Delfield Merger Agreement (as such term is hereinafter defined)), Permitted Persons (as such term is hereinafter defined) or Related Persons of a New Scotsman Stockholder or a Permitted Person and (II) each member of such Group beneficially owns no shares of Common Stock other than by reason of being a member of such Group and other than (A) shares of Common Stock acquired by such member pursuant to the Delfield Merger Agreement or the Whitlenge Share Acquisition Agreement (including, without limitation, shares acquired, or entitled to be acquired, under benefit plans of the Company by individuals designated or elected as directors of the Company in accordance with the terms of the Delfield Merger Agreement or the Whitlenge Share Acquisition Agreement), (B) shares of Common Stock listed on Schedule 3.3(b) to the Delfield Merger Agreement as being owned by such member, (C) shares of Common Stock acquired upon conversion of shares of the Company's Series A $0.62 Cumulative Convertible Preferred Stock (the "Series A Preferred Stock") acquired by such member pursuant to the Delfield Merger Agreement, (D) any shares of Common Stock issued as, or issued directly or indirectly upon the conversion of other securities issued as, a dividend or other distribution with respect to or in replacement of such shares of Common Stock or Series A Preferred Stock or (E) with respect to shares beneficially owned by a Related Person of a New Scotsman Stockholder or a Related Person of a Permitted Person, shares of Common Stock acquired from such New Scotsman Stockholder or Permitted Person (provided that the provisions of this clause (iv) shall expire on January 12, 1999), and (v) any Group existing on and after January 12, 1999 solely by reason of the provisions of Sections 7.1 and 7.2 and the penultimate sentence of Section 7.3 of the Delfield Merger Agreement and Section 5.1 of the Whitlenge Share Acquisition Agreement and any agreements among the members of such Group to effectuate such provisions. Notwithstanding the foregoing, no Group or Person excepted by clause (iv) or (v) of the immediately preceding sentence shall constitute an "Existing 15% Holder" for purposes of this Agreement. Notwithstanding the foregoing, no Person shall become an "Acquiring Person" as the result of an acquisition of shares of Common Stock by the Company which, by reducing the number of shares of Common Stock of the Company outstanding, increases the proportionate number of shares of Common Stock beneficially owned by such Person to a percentage equal to or greater than, in the case of an Existing 15% Holder, the Increased Percentage, or, in the case of any other Person, 15%, of the -2- 3 shares of the Common Stock then outstanding; provided, however, that if a Person other than those Persons excepted in clauses (i), (ii) or (iii) of the first sentence of this paragraph shall become the Beneficial Owner of a percentage equal to or greater than, in the case of an Existing 15% Holder, the Increased Percentage, or, in the case of any other Person, 15%, of the shares of the Common Stock then outstanding by reason of Common Stock purchases by the Company and shall, after such purchases by the Company, become the Beneficial Owner of any additional shares of Common Stock of the Company, 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) has become such inadvertently, and such Person divests as promptly as practicable a sufficient number of shares of Common Stock of the Company so that such Person would no longer be an "Acquiring Person" (as defined pursuant to the foregoing provisions of this paragraph), then such Person shall not be deemed to be an "Acquiring Person" for any purposes of this Agreement. For purposes of this Section 1(a), (i) "Delfield Merger Agreement" shall mean the Agreement and Plan of Merger dated as of January 11, 1994 among the Company, Scotsman Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary of the Company, DFC Holding Corporation, a Delaware corporation, The Delfield Company, a Delaware corporation, and certain other parties thereto, (ii) "Whitlenge Share Acquisition Agreement" shall mean the Share Acquisition Agreement dated as of January 11, 1994 among the Company, Whitlenge Acquisition Limited, a private company limited by shares registered in England, Whitlenge Drink Equipment Limited, a private company limited by shares registered in England, and certain other parties thereto, (iii) "Group" shall mean two or more Persons acting or agreeing to act as a partnership, limited partnership, syndicate or other group for the purpose of acquiring, holding, voting or disposing of shares of Common Stock of the Company, (iv) a "Permitted Person" shall mean Continental Bank, N.A. and any other person listed on Schedule 3.3(b) of the Delfield Merger Agreement as beneficially owning shares of Common Stock and (v) a "Related Person" of a New Scotsman Stockholder or a Permitted Person shall mean (1) any Affiliate or Associate of such New Scotsman Stockholder or Permitted Person, (2) any relative, spouse or descendent of such New Scotsman -3- 4 Stockholder or Permitted Person, (3) the spouse of any such descendent, (4) the estate of such New Scotsman Stockholder or Permitted Person, any such spouse of such New Scotsman Stockholder, any such descendent or the spouse of any such descendent, (5) any trust for the benefit of such New Scotsman Stockholder or Permitted Person, any such descendent or the spouse of any such descendent or (6) any charitable organization established for the benefit of such New Scotsman Stockholder or Permitted Person, any such descendent or the spouse of any such descendent." Section 2. Section 3(a) of the Rights Agreement is hereby amended by substituting the following for the first sentence of Section 3(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 Board of Directors prior to such time as any Person becomes an Acquiring Person) after the date of the commencement by any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or any Subsidiary of the Company, or any entity holding shares of Common Stock of the Company for or pursuant to the terms of any such plan) of, or of the first public announcement of the intention of any Person (other than the Company, any Subsidiary of the Company or any employee benefit plan of the Company or any Subsidiary of the Company, or any entity holding shares of Common Stock for or pursuant to the terms of any such plan) to commence, a tender or exchange offer the consummation of which would result in any Person becoming the Beneficial Owner of shares of Common Stock of the Company equal to, in the case of an Existing 15% Holder, the Increased Percentage or more, or, in the case of any other Person, 15% or more, of the then outstanding shares of Common Stock of the Company (the earlier of (i) and (ii) being herein referred to as the "Distribution Date"), (x) the Rights will be evidenced (subject to the provisions of Section 3(b) hereof) by the certificates for shares of Common Stock 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 shares of Common Stock." Section 3. Section 11(a)(ii) of the Rights Agreement is hereby amended by deleting such Section in its entirety and by adding the following in lieu thereof: -4- 5 "(ii) Subject to Section 24 of this Agreement, in the event any Person shall become an Acquiring Person, then proper provision shall be made so that each holder of a Right, except as provided in this subparagraph (ii), shall thereafter have a right to receive, upon exercise thereof at a price equal to the then current Purchase Price multiplied by the number of shares of Common Stock for which a Right is then exercisable, in accordance with the terms of this Agreement, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the number of shares of Common Stock for which a Right is then exercisable and dividing that product by (y) 50% of the then current per share market price of the Company's Common Stock (determined pursuant to Section 11(d) hereof) on the fifth day after the date on which such Person shall have become an Acquiring Person, or the fifth day after the Shares Acquisition Date, whichever market price shall be less. From and after the date on which any Person shall have become an Acquiring Person, any Rights that are or were acquired or beneficially owned by such Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights shall thereafter have no right to exercise such Rights under any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall be cancelled." Section 4. Section 11(a)(iii) of the Rights Agreement is hereby amended by deleting such Section in its entirety and by adding the following in lieu thereof: "(iii) [SUBPARAGRAPH OMITTED]" Section 5. Section 25(b) of the Rights Agreement is hereby amended by deleting from the first and second lines thereof the phrase "In case any of the events set forth in -5- 6 Section 11(a)(ii) hereof shall occur," and by replacing it with the following in lieu thereof: "In case the event set forth in Section 11(a)(ii) hereof shall occur," Section 6. Section 27 of the Rights Agreement is hereby amended by substituting the following for the fourth sentence of Section 27: "Without limiting the foregoing, the Company may at any time prior to such time as any Person becomes an Acquiring Person amend this Agreement to lower the thresholds set forth in Sections 1(a)(other than the 95% threshold set forth in clause (I) of Section 1(a)) and 3(a) to a percentage that (subject to exceptions for specified Persons or Groups excepted from the definition of "Acquiring Person") is not less than the greater of (x) any percentage greater than the largest percentage of the outstanding shares of Common Stock then known by the Company to be beneficially owned by any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or any Subsidiary of the Company, any entity holding shares of Common Stock for or pursuant to the terms of any such plan or any Person or Group otherwise excepted from the definition of "Acquiring Person") and (y) 10%." Section 7. The form of Right Certificate attached to the Rights Agreement as Exhibit A, as amended by Amendment No. 1 to Rights Agreement dated as of January 11, 1994 and Amendment No. 2 to Rights Agreement dated as of February 10, 1998, is hereby further amended by substituting the following phrase for the phrase "as amended as of January 11, 1994 and February 10, 1998" which was collectively added by such Amendments No. 1 and No. 2: "as amended as of January 11, 1994, February 10, 1998 and February 11, 1998" Section 8. This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware. Section 9. This Amendment 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. -6- 7 Section 10. Except as expressly set forth herein, this Amendment shall not by implication or otherwise alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Rights Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect. -7- 8 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and attested, all as of the day and year first above written. SCOTSMAN INDUSTRIES, INC. Attest: Donald D. Holmes By: Richard C. Osborne - ------------------------ ------------------------------- Name: Donald D. Holmes Name: Richard C. Osborne Title: Vice President-Finance Title: Chairman of the Board, President and CEO HARRIS TRUST & SAVINGS BANK Attest: Susan M. Shadel By: Ken Penn - ------------------------- -------------------------------- Name: Susan M. Shadel Name: K. W. Penn Title: Assistant Vice President Title: Assistant Vice President -8- -----END PRIVACY-ENHANCED MESSAGE-----