-----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, AJNwQlgmEV7Uyy/Ptxb2rT/pfk2HD+HDADt1MfwIsHrTXl4HklvL1QAuN+BOyeZO 7fOwNK8qJflpXGi8iYppgQ== 0000919563-96-000004.txt : 19960705 0000919563-96-000004.hdr.sgml : 19960705 ACCESSION NUMBER: 0000919563-96-000004 CONFORMED SUBMISSION TYPE: 8-A12G/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19960703 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: MK RAIL CORP CENTRAL INDEX KEY: 0000919563 STANDARD INDUSTRIAL CLASSIFICATION: RAILROAD EQUIPMENT [3743] IRS NUMBER: 820461010 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-A12G/A SEC ACT: 1934 Act SEC FILE NUMBER: 000-23802 FILM NUMBER: 96591286 BUSINESS ADDRESS: STREET 1: 1200 REEDSDALE ST CITY: PITTSBURGH STATE: PA ZIP: 15233 BUSINESS PHONE: 4122372250 MAIL ADDRESS: STREET 1: 1200 REEDSDALE STREET CITY: PITTSBURGH STATE: PA ZIP: 15233 8-A12G/A 1 AMENDMENT FORM 8-A/A Amendment No. 2 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934 MK RAIL CORPORATION (Exact name of registrant as specified in its charter) Delaware 82-0461010 -------- ---------- (State of Incorporation or Organization) (I.R.S. Employer Identification No.) 1200 Reedsdale Street Pittsburgh, PA 15233 -------------- ----- (Address of principal executive offices) (Zip Code) Securities to be registered pursuant to Section 12(g) of the Act: None Securities to be registered pursuant to Section 12(g) of the Act: Title of each class Name of each exchange on which to be so registered each class is to be registered ------------------- ------------------------------ Share Purchase Rights None This Amendment No. 2 on Form 8-A/A amends the Form 8-A filed with the Securities and Exchanges Commission (the "Commission") by MK RAIL CORPORATION, a Delaware corporation (the "Company"), on January 26, 1996, as amended by the amendment on Form 8- A/A filed with the Commission on April 25, 1996, with respect to the Company's Share Purchase Rights under the Rights Agreement dated January 19, 1996. Item 1. Description of Securities to be Registered Item 1 is hereby amended and supplemented by adding thereto the following: On June 17, 1996, the Board of Directors of the Company approved the execution and delivery of a Second Amendment dated as of June 20, 1996 to the Rights Agreement dated as of January 19, 1996, as amended as of April 5, 1996, between the Company and Chase Mellon Shareholder Services, L.L.C. (formerly known as Chemical Mellon Shareholder Services L.L.C.), as Rights Agent (the "Second Amendment"). A copy of the Second Amendment is attached hereto as Exhibit 3 and is incorporated by reference herein. Item 2. Exhibits. The Exhibit Index appearing on page 4 hereof is incorporated herein by reference. SIGNATURE Pursuant to the requirements of Section 12 of the Securities Exchange Act, of 1934, the registrant has duly caused this amendment to be signed on its behalf by the undersigned, thereunto duly authorized. Dated: July 3, 1996 MK RAIL CORPORATION By: /s/ William D. Grab --------------------- Name: William D. Grab Title: Vice President, Controller and Principal Accounting Officer EXHIBIT INDEX Exhibit No. Description Page 1. Rights Agreement dated as of January 19, * 1996 between MK Rail Corporation and Chemical Mellon Shareholder Services, L.L.C., as Rights Agent 2. Amendment to Rights Agreement dated as of ** April 5, 1996 between MK Rail Corporation and Chemical Mellon Shareholder Services, L.L.C., as Rights Agent 3. Second Amendment to Rights Agreement 5 dated as of June 20, 1996 between MK Rail Corporation and Chase Mellon Shareholder Services, L.L.C. (formerly known as Chemical Mellon Shareholder Services L.L.C.) as Rights Agent * Included as Exhibit 1 to Registration Statement on Form 8-A dated January 25, 1996 filed by MK Rail Corporation; such Exhibit is incorporated by reference herein. ** Included as Exhibit 2 to Form 8-A/A Amendment No. 1 dated April 24, 1996 filed by MK Rail Corporation; such Exhibit is incorporated by reference herein. EX-3 2 SECOND AMENDMENT TO RIGHTS AGREEMENT MK RAIL CORPORATION SECOND AMENDMENT DATED AS OF JUNE 20, 1996 TO RIGHTS AGREEMENT DATED AS OF JANUARY 19, 1996 AND AMENDED AS OF APRIL 5, 1996 AMENDMENT dated as of June 20, 1996 to the Rights Agreement (the "Rights Agreement") dated as of January 19, 1996 and Amended as of April 5, 1996 between MK Rail Corporation, a Delaware corporation (the "Company"), and Chase Mellon Shareholder Services, L.L.C. (the "Rights Agent"). Pursuant to resolutions adopted by the Board of Directors of the Company on June 17, 1996 and the authority vested in the Board of Directors of the Company by Section 27 of the Rights Agreement, the Rights Agreement is hereby amended as follows: PART I The amendments to the Rights Agreement set forth in this Part I shall be effective as of the date of execution of this Amendment by the undersigned. i. Section 1(c) of the Rights Agreement is hereby amended and restated in its entirety as follows: (c) "Affiliate" and "Associate" shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as in effect on the date of this Agreement; provided, however, that no director or officer of the Company shall be deemed an Affiliate or Associate of any other director or officer of the Company solely as a result of his or her being a director or officer of the Company; and provided further that - 1 - the MK Creditors shall not be deemed Affiliates or Associates of one another or of MK solely by reason of any or all of the following: (1) negotiations by or among any of such MK Creditors or by or among any of such MK Creditors and MK in connection with any restructuring or reorganization of MK; (2) the MK Creditors or MK agreeing upon, voting as a class upon, or acting to effect confirmation of the MK Plan; or (3) the MK Creditors or MK entering into, agreeing to be bound by, or acting in accordance with the MK Rail Stockholders Agreement. ii. Section 1(d) of the Rights Agreement is hereby amended and restated in its entirety as follows: (d) A Person shall be deemed the "Beneficial Owner" of and shall be deemed to "Beneficially Own" and to have "Beneficial Ownership" of any securities: (i) which such Person or any of such Person's Affiliates or Associates beneficially owns, directly or indirectly (as determined pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange Act as in effect on the date of this Agreement); (ii) which such Person or any of such Person's Affiliates or Associates has (A) the right to acquire (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement, or understanding (other than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering of securities), or upon the exercise of conversion rights, exchange rights, rights (other than these Rights), warrants or options, or otherwise; provided, however, that a Person shall not be deemed the Beneficial Owner of, or to Beneficially Own or to have Beneficial Ownership of, (1) securities tendered pursuant to a tender or exchange offer made by or on behalf of such Person or any of such Person's Af filiates or Associates until such tendered securities are accepted for purchase or exchange or (2) securities issuable upon exercise of the Rights at any time prior to the Distribution Date; or (B) the right to vote pursuant to any agreement, arrangement, or understanding; provided, however, that a Person shall not be deemed the Beneficial Owner of, or to Beneficially Own or to have Beneficial Ownership of, any security if the agreement, arrangement, or understanding to vote such security (1) arises solely from a revocable proxy or consent given to such Person in response to a public proxy or consent solicitation made pursuant to, and in accordance with, the applicable rules and regulations promulgated under the Exchange Act and (2) is not also then reportable on Schedule 13D under theExchange Act (or any comparable or successor report); or - 2 - (iii) which are beneficially owned, directly or indirectly, by any other Person with which such Person or any of such Person's Affiliates or Associates has any agreement, arrangement, or understanding (other than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering of securities) for the purpose of acquiring, holding, voting (except to the extent contemplated by the proviso to Section 1(d)(ii)(B)), or disposing of any securities of the Company. Notwithstanding anything in this definition of Beneficial Ownership to the contrary: (1) the phrase "then outstanding," when used with reference to a Person's Beneficial Ownership of securities of the Company, shall mean the number of such securities then issued and outstanding together with the number of such securities not then actually issued and outstanding that such Person would be deemed to own beneficially hereunder; (2) none of the MK Creditors shall be deemed to be the Beneficial Owner of, or to Beneficially Own, or to have Beneficial Ownership of, Common Shares of the Company Beneficially Owned by any other MK Creditor or MK solely by reason of any or all of the following: (a) negotiations by or among any of such MK Creditors or by or among any of such MK Creditors and MK in connection with any restructuring or reorganization of MK; (b) the MK Creditors or MK agreeing upon, voting as a class upon, or acting to effect confirmation of the MK Plan; or (c) the MK Creditors or MK entering into, agreeing to be bound by, and acting in accordance with the MK Rail Stockholders Agreement. iii. Section 1 of the Rights Agreement is hereby amended by deleting subsection (ll) in its entirety and adding new subsections (l-1), (l-2), (l-3), (l-4), (l-5), and (l-6) immediately following subsection (l) as follows: (l-1) "Liquidating Trust" shall mean the Liquidating Trust established pursuant to the terms of the MK Plan and the trustee thereof. (l-2) "MK" shall mean Morrison Knudsen Corporation, a Delaware corporation, Morrison Knudsen Corporation, an Ohio corporation, and the Subsidiaries of each, but - 3 - shall not include the Company. (l-3) "MK Creditors" shall mean the creditors of MK who are designated to receive Common Shares of the Company in any case under Title 11 of the United States Code or as a result of any creditor foreclosure. The term MK Creditors shall also include the Liquidating Trust. (l-4) "MK Plan" shall mean a Conforming Plan as defined in Section 5.3(a)(ii) of the Note Cancellation and Restructuring Agreement. (l-5) "MK Rail Stockholders Agreement" shall mean the Stockholders Agreement relating to the Company in the form attached hereto as Exhibit 1. (l-6) "Note Cancellation and Restructuring Agreement" shall mean the Note Cancellation and Restructuring Agreement by and among the Company and MK in the form attached hereto as Exhibit 2. iv. Section 1(m) of the Rights Agreement is hereby amended and restated in its entirety as follows: (m) "Person" shall mean any individual, firm, corporation, or other entity (including a trust), and shall include any assignee or successor (by merger or otherwise) of such entity. PART II The amendments to the Rights Agreement set forth in this Part II shall become effective only upon the Note Cancellation and Restructuring Agreement becoming effective in accordance with Section 2 thereof. 1. Section 1(a) of the Rights Agreement shall be amended and restated 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, shall be the Beneficial Owner (as such term is hereinafter defined) of 15% or more of the Common Shares of the Company then - 4 - 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, or any entity holding Common Shares for or pursuant to the terms of any such plan. Notwithstanding the foregoing: (1) a Grandfathered Stockholder shall not be deemed an Acquiring Person for purposes of this Agreement unless and until (A) such Grandfathered Stockholder, or any Affiliate or Associate of such Grandfathered Stockholder, acquires, after the time that such Person first becomes a Grandfathered Stockholder, Beneficial Ownership of any additional Common Shares of the Company, in which case such Person shall no longer be deemed a "Grandfathered Stockholder," or (B) in the case of a Grandfathered Stockholder who, together with all Affiliates and Associates of such Grandfathered Stockholder, Beneficially Owns 20% or more of the Common Shares of the Company then outstanding, a Change of Control Event (as such term is hereinafter defined) occurs with respect to such Grandfathered Stockholder, in which case, such Person shall no longer be deemed a "Grandfathered Stockholder;" provided, however, that the exception set forth in Section 1(a)(1)(B) hereof regarding the occurrence of a Change in Control Event shall not be applicable with respect to any Grandfathered Stockholder who does not, upon the occurrence of such Change in Control Event, Beneficially Own, together with its Affiliates and Associates, 20% or more of the Common Shares of the Company then outstanding. (2) no Person shall become an "Acquiring Person" as the 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, together with all Affiliates and Associates of such Person, to 15% or more of the Common Shares of the Company then outstanding; provided, however, that if a Person, together with all Affiliates and Associates of such Person, shall become the Beneficial Owner of 15% or more of the Common Shares of the Company then outstanding 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, then such Person shall be deemed to be an "Acquiring Person;" (3) 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; and (4) for purposes of determining whether any MK Creditor (together with its Affiliates or Associates) Beneficially Owns 15% or more of the Common Shares of the Company then outstanding, Common Shares of the Company Beneficially Owned by such MK Creditor solely as a result of the receipt of such Common Shares pursuant to the - 5 - MK Plan or by reason of foreclosure by such MK Creditor shall not be aggregated with Common Shares of the Company held by such MK Creditor (or its Affiliates or Associates), in good faith and not for the purpose of circumventing the provisions of this Rights Agreement, as an agent, custodian, executor, or trustee for or on behalf of one or more Beneficial Owners. (5) a disbursing agent holding Common Shares of the Company following effectiveness of an MK Plan that occurs after the condition to effectiveness required to be added to the MK Plan by Exhibit D of the Note Cancellation Agreement (the "Mandatory Added Condition") is satisfied, which Plan provides for distribution by the disbursing agent to MK Creditors of Common Shares of the Company owned by MK, shall not be deemed to be an Acquiring Person solely by reason of Beneficial Ownership of such shares to the extent within forty-five (45) days following the Effective Date of the MK Plan it distributes the Common Shares to MK Creditors or shareholders of MK; provided the disbursing agent does not vote or otherwise take any action with respect to the Common Shares other than distribute them to MK Creditors or shareholders of MK. 2. Section 1(c) of the Rights Agreement is hereby amended and restated in its entirety as follows: (c) "Affiliate" and "Associate" shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as in effect on the date of this Agreement; provided, however, that no director or officer of the Company shall be deemed an Affiliate or Associate of any other director or officer of the Company solely as a result of his or her being a director or officer of the Company; and provided further that the MK Creditors shall not be deemed Affiliates or Associates of one another or of MK solely by reason of any or all of the following: (1) negotiations by or among any of such MK Creditors or by or among any of such MK Creditors and MK in connection with any restructuring or reorganization of MK; (2) the MK Creditors or MK agreeing upon, voting as a class upon, or acting to effect confirmation of the MK Plan; (3) the receipt of Common Shares of the Company by any of such MK Creditors pursuant to the terms of the MK Plan or as a result of foreclosure by any of such MK Creditors; provided, however, that prior to actual receipt of Common Shares of the Company by the MK Creditors pursuant to the MK Plan or as a result of foreclosure by any of such MK Creditors, each MK Creditor who receives such Common Shares of the Company shall have agreed in writing to be bound by the terms of the MK Rail Stockholders Agreement; or - 6 - (4) the MK Creditors or MK entering into, agreeing to be bound by, or acting in accordance with the MK Rail Stockholders Agreement. 3. Section 1(d) of the Rights Agreement is hereby amended and restated in its entirety as follows: (d) A Person shall be deemed the "Beneficial Owner" of and shall be deemed to "Beneficially Own" and to have "Beneficial Ownership" of any securities: (i) which such Person or any of such Person's Affiliates or Associates beneficially owns, directly or indirectly (as determined pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange Act as in effect on the date of this Agreement); (ii) which such Person or any of such Person's Affiliates or Associates has (A) the right to acquire (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement, or understanding (other than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering of securities), or upon the exercise of conversion rights, exchange rights, rights (other than these Rights), warrants or options, or otherwise; provided, however, that a Person shall not be deemed the Beneficial Owner of, or to Beneficially Own or to have Beneficial Ownership of, (1) securities tendered pursuant to a tender or exchange offer made by or on behalf of such Person or any of such Person's Af filiates or Associates until such tendered securities are accepted for purchase or exchange or (2) securities issuable upon exercise of the Rights at any time prior to the Distribution Date; or (B) the right to vote pursuant to any agreement, arrangement, or understanding; provided, however, that a Person shall not be deemed the Beneficial Owner of, or to Beneficially Own or to have Beneficial Ownership of, any security if the agreement, arrangement, or understanding to vote such security (1) arises solely from a revocable proxy or consent given to such Person in response to a public proxy or consent solicitation made pursuant to, and in accordance with, the applicable rules and regulations promulgated under the Exchange Act and (2) is not also then reportable on Schedule 13D under the Exchange Act (or any comparable or successor report); or (iii) which are beneficially owned, directly or indirectly, by any other Person with which such Person or any of such Person's Affiliates or Associates has any agreement, arrangement, or understanding (other than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering of securities) for the purpose of acquiring, holding, voting (except to the extent contemplated by the proviso to Section 1(d)(ii)(B)), or disposing of any securities of the Company. - 7 - Notwithstanding anything in this definition of Beneficial Ownership to the contrary: (1) the phrase "then outstanding," when used with reference to a Person's Beneficial Ownership of securities of the Company, shall mean the number of such securities then issued and outstanding together with the number of such securities not then actually issued and outstanding that such Person would be deemed to own beneficially hereunder; (2) none of the MK Creditors shall be deemed to be the Beneficial Owner of, or to Beneficially Own, or to have Beneficial Ownership of, Common Shares of the Company Beneficially Owned by any other MK Creditor or MK solely by reason of any or all of the following: (a) negotiations by or among any of such MK Creditors or by or among any of such MK Creditors and MK in connection with any restructuring or reorganization of MK; (b) the MK Creditors or MK agreeing upon, voting as a class upon, or acting to effect confirmation of the MK Plan; (c) the receipt of Common Shares of the Company by any of such MK Creditors pursuant to the terms of the MK Plan or as a result of foreclosure by any of such MK Creditors; provided, however, that prior to actual receipt of Common Shares of the Company by the MK Creditors pursuant to the MK Plan or as a result of foreclosure by any of such MK Creditors, each MK Creditor who receives such Common Shares of the Company shall have agreed in writing to be bound by the terms of the MK Rail Stockholders Agreement; or (d) the MK Creditors or MK entering into, agreeing to be bound by, and acting in accordance with the MK Rail Stockholders Agreement. 4. Section 1(f) of the Rights Agreement is hereby amended by adding the following paragraph at the end of said section: Notwithstanding the foregoing, a Change of Control Event shall not be deemed to have occurred as a result of a merger of MK with any other party if (1) said merger is effected in conjunction with the effectiveness of an MK Plan, following satisfaction of the Mandatory Added Condition, which Plan provides for the distribution, following said merger, to MK Creditors of Common Shares of the Company held by MK in an amount sufficient so that MK (or the surviving entity of the merger) will no longer be a Grandfathered Stockholder following said distribution and (2) promptly following the merger, as a result of distribution of Common Shares of the Company to MK Creditors, MK (or the surviving entity of - 8 - the merger) is no longer a Grandfathered Stockholder. 5 Section 1(l) of the Rights Agreement shall be amended and restated in its entirety as follows: (l) "Grandfathered Stockholder" shall mean any Person who, together with all Affiliates and Associates of such Person, Beneficially Owned 15% or more of the Common Shares of the Company then outstanding on the date of the original adoption of this Agreement; provided, however, that the term Grandfathered Stockholder shall not include the Company, any Subsidiary of the Company, any employee benefit plan of the Company or any Subsidiary of the Company, or any entity holding Common Shares for or pursuant to the terms of any such plan; and provided further that if any Grandfathered Stockholder, together with all Affiliates and Associates of such Grandfathered Stockholder, shall no longer be the Beneficial Owner of 15% or more of the Common Shares of the Company then outstanding, such Person shall no longer be deemed a Grandfathered Stockholder for purposes of this Agreement. 4. Section 3(a) of the Rights Agreement is hereby amended and restated in its entirety 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 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 of any Subsidiary of the Company, or any entity holding Common Shares 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, any employee benefit plan of the Company or of any Subsidiary of the Company, or any entity holding Common Shares 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 Common Shares aggregating 15% or more of the then outstanding Common Shares (including any such date which is after the date of this Agreement and prior to the issuance of the Rights; the earlier of such dates 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 Common Shares 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. As soon as practicable after the Distribution Date, the Company will prepare and execute, the Rights 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 - 9 - holder of Common Shares 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 so held. As of the Distribution Date, the Rights will be evidenced solely by such Right Certificates. IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed and attested, all as of the day and year first above written. MK RAIL CORPORATION Attest: By___________________ By________________________ Name: John C. Pope, Chairman Title: CHASE MELLON SHAREHOLDER SERVICES, L.L.C. Attest: By___________________ By________________________ Name: Name: Title: Title: -----END PRIVACY-ENHANCED MESSAGE-----