-----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, R9EsuwTc9DZHcJrW4+2QDEGgKywTmkNSUx9TVQBMe93x1NRIhksno0RgnCbN2S6y M+Re4fz8AiXGUkIk2icVOQ== 0000950124-99-003593.txt : 19990604 0000950124-99-003593.hdr.sgml : 19990604 ACCESSION NUMBER: 0000950124-99-003593 CONFORMED SUBMISSION TYPE: 8-A12B/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19990603 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MOTIVEPOWER INDUSTRIES INC CENTRAL INDEX KEY: 0000919563 STANDARD INDUSTRIAL CLASSIFICATION: RAILROAD EQUIPMENT [3743] IRS NUMBER: 820461010 STATE OF INCORPORATION: PA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-A12B/A SEC ACT: SEC FILE NUMBER: 001-13225 FILM NUMBER: 99639726 BUSINESS ADDRESS: STREET 1: TWO GATEWAY CENTER 14TH FLOOR CITY: PITTSBURGH STATE: PA ZIP: 15222 BUSINESS PHONE: 4122011101 MAIL ADDRESS: STREET 1: TWO GATEWAY CENTER 14TH FLOOR CITY: PITTSBURGH STATE: PA ZIP: 15222 FORMER COMPANY: FORMER CONFORMED NAME: MK RAIL CORP DATE OF NAME CHANGE: 19940228 8-A12B/A 1 AMENDMENT #1 TO FORM 8-A 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------ FORM 8-A/A Amendment No. 1 ------------ FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934 MOTIVEPOWER INDUSTRIES, INC. ------------------------------------------------------ (Exact name of registrant as specified in its charter) Pennsylvania 82-0461010 - ---------------------------------------- ------------------------------------ (State of incorporation or organization) (I.R.S. Employer Identification No.) Two Gateway Center, Pittsburgh, PA 15222 - ---------------------------------------- ---------- (Address of principal executive offices) (Zip Code) If this Form relates to the registration If this Form relates to the of a class of debt securities and is registration of a class of debt effective upon filing pursuant to General securities and is to become Instruction A(c)(1) please check the effective simultaneously with following box. [ ] the effectiveness of a concurrent registration statement under the Securities Act of 1933 pursuant to General Instruction A(c)(2) please check the following box.[ ] Securities to be registered pursuant to Section 12(b) of the Act: Name of each exchange on which Title of each class to be so registered each class is to be registered - --------------------------------------- ------------------------------ Preferred Share Purchase Rights New York Stock Exchange Securities to be registered pursuant to Section 12(g) of the Act: None -------------------------------------------------- (Title of Class) 2 Item 1. Description of Registrant's Securities to be Registered. Reference is hereby made to the Form 8-A of MotivePower Industries, Inc., a Pennsylvania corporation (the "Registrant"), filed with the Securities and Exchange Commission (the "Commission") on May 4, 1999, and such Form 8-A is hereby incorporated by reference herein. The Registrant executed the Fifth Amendment (the "Amendment"), dated as of June 2, 1999, to the Rights Agreement, dated as of January 19, 1996, as amended as of April 5, 1996, June 20, 1996 and July 25, 1996 (the "Rights Agreement"), between the Registrant and ChaseMellon Shareholder Services, as Rights Agent (the "Rights Agent"). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Rights Agreement. As more fully set forth in the Amendment, the Amendment (i) renders the Rights Agreement inapplicable with respect to the transactions contemplated by the Agreement and Plan of Merger (the "Merger Agreement"), dated as of June 2, 1999, among Westinghouse Air Brake Company and the Registrant, (ii) excludes from the definition of Acquiring Person the Westinghouse Air Brake Company Employee Stock Ownership Trust, (iii) makes certain amendments in connection with the reincorporation of the Registrant from the State of Delaware to the Commonwealth of Pennsylvania and (iv) makes certain additional amendments requested by the Rights Agent. A copy of the Amendment is attached hereto as Exhibit 1 and is incorporated herein by reference. The foregoing discussion does not purport to be complete and is qualified in its entirety by reference to such exhibit. Item 2. Exhibits. 1. Fifth Amendment to Rights Agreement, dated as of June 2, 1999, between MotivePower Industries, Inc. and ChaseMellon Shareholder Services, L.L.C., as Rights Agent. -2- 3 SIGNATURE Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the Registrant has duly caused this amendment to the registration statement to be signed on its behalf by the undersigned hereunto duly authorized. MOTIVEPOWER INDUSTRIES, INC. By: /s/ Jeannette Fisher-Garber ------------------------------------ Jeannette Fisher-Garber Vice President, General Counsel and Secretary Dated: June 3, 1999 -3- 4 EXHIBIT INDEX
Exhibit Number Description ------- ----------- 1 Fifth Amendment to Rights Agreement, dated as of June 2, 1999, between MotivePower Industries, Inc. and ChaseMellon Shareholder Services, L.L.C., as Rights Agent.
EX-1 2 FIFTH AMENDMENT TO RIGHTS AGREEMENT 1 Exhibit 1 FIFTH AMENDMENT TO RIGHTS AGREEMENT AMENDMENT, dated as of June 2, 1999 (this "Amendment"), to the Rights Agreement, dated as of January 19, 1996, as amended as of April 5, 1996, June 20, 1996, July 25, 1996 and August 22, 1997 (the "Rights Agreement"), between MotivePower Industries, Inc., a Pennsylvania corporation (successor to MotivePower Industries, Inc., a Delaware corporation)(the "Company"), and ChaseMellon Shareholder Services, L.L.C., a New Jersey limited liability company (formerly known as Chemical Mellon Shareholder Services, L.L.C.) (the "Rights Agent"). WHEREAS, at the close of business on June 2, 1999, MotivePower Industries, Inc., a Delaware corporation ("Delaware Corp") was merged ("Reincorporation Merger") into the Company, pursuant to a Plan of Merger whereby the Company succeeded to all the property, rights and obligations of Delaware Corp Delaware Corp ceased to exist as a Delaware corporation, and each outstanding share of Common Stock, par value $.01 per share, of Delaware Corp (including shares held in the treasury) became and was converted into one share of Common Stock, $.01 par value, of the Company; WHEREAS, the Company and the Rights Agent wish to amend the Rights Agreement to reflect and confirm that the Company has succeeded to all of the rights and obligations of Delaware Corp thereunder and to reflect and confirm certain conforming changes therein; WHEREAS, the Company and Westinghouse Air Brake Company, a Delaware corporation ("Westinghouse"), have proposed to enter into an Agreement and Plan of Merger (the "Merger Agreement") pursuant to which, among other things, Westinghouse will merge with and into the Company (the "Westinghouse Merger") and each outstanding share of Common Stock, par value $0.01 per share, of the Westinghouse will be converted into 1.3 shares of Common Stock of the Company; WHEREAS, the Company and the Rights Agent desire to (i) amend the Rights Agreement to provide that Westinghouse shall not be deemed an Acquiring Person and no Distribution Date (as such terms are defined in the Rights Agreement) shall be deemed to occur as a result of the execution of the Merger Agreement, the execution of the WABCO Stock Option Agreement, dated as of June 2, 1999, between Westinghouse and the Company or consummation of the transactions contemplated thereby, and (ii) provide that Westinghouse Air Brake Company Employee Ownership Trust shall not constitute an Acquiring Person after consummation of the Westinghouse Merger; 2 WHEREAS, the Company and the Rights Agent desire to make certain additional administrative changes to the Rights Agreement; and 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 agree as follows: 1. As of the time of the Reincorporation Merger, the Company succeeded to all the rights and obligations of Delaware Corp under the Rights Agreement, and replaced Delaware Corp as the "Company" under the Rights Agreement. 2. As of the time of the Reincorporation Merger, each Right theretofore issued by Delaware Corp, and which attached to a share of Common Stock of Delaware Corp, became a Right, when exercisable, to purchase from the Company one one-hundredth of a share of Series C Junior Participating Preferred Stock ("Preferred Stock") of the Company for $16, subject to the adjustment as provided in the Rights Agreement, such Right being attached to the share of Common Stock of the Company into which such share of Common Stock of Delaware Corp has been converted. 3. As of the time of the Reincorporation Merger, all references in the Rights Agreement to Common Stock of Delaware Corp became references to the Common Stock of the Company, all references to Series C Junior Participating Preferred Stock of Delaware Corp became references to the Preferred Stock, and all references to other securities of Delaware Corp became references to other securities of the Company. 4. One Right to purchase one one-hundredths of a share of Preferred Stock (as such number may be adjusted pursuant to the Rights Agreement) of the Company for $16, when exercisable and subject to adjustment as provided in the Rights Agreement, shall be issued for and attach to each share of Common Stock of the Company issued after the time of the Reincorporation Merger, whether an originally issued share or a share delivered from the treasury to which a Right had not previously attached, all in accordance with Section 3 of the Rights Agreement. 5. Section 31 of the Rights Agreement is hereby amended by substituting "Commonwealth of Pennsylvania" for "State of Delaware." 2 3 6. The first sentence of Section 1(a) of the Rights Agreement is hereby amended and restated in its entirety as follows: "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, or, after the consummation of the Merger (as such term is hereinafter defined), the Westinghouse Air Brake Company Employee Ownership Trust. 7. Section 3 of the Rights Agreement is hereby amended by adding the following new paragraph at the end of Section 3: "(d) Notwithstanding anything in this Agreement that might otherwise be deemed to the contrary, Westinghouse Air Brake Company shall not be deemed an Acquiring Person and no Distribution Date shall be deemed to occur, in either case, as a result of the execution of the Agreement and Plan of Merger, dated as of June 2, 1999, between the Company and Westinghouse Air Brake Company, a Delaware corporation ("Westinghouse")(as the same may be amended from time to time, the "Merger Agreement"), the execution of the WABCO Stock Option Agreement, dated as of June 2, 1999, between Westinghouse and the Company (as the same may be amended from time to time, the "Option Agreement") or consummation of the transactions contemplated thereby pursuant to the terms of the Merger Agreement and the Option Agreement, as the case may be." 8. The first sentence of Section 2 of the Rights Agreement is hereby amended and restated in its entirety as follows: "The Company hereby appoints the Rights Agent to act as agent for the Company in accordance with the terms and conditions hereof, and the Rights Agent hereby accepts such appointment." 9. Section 18 of the Rights Agreement is hereby amended by adding the following new paragraph at the end of Section 18: 3 4 "The indemnity provided herein shall survive the termination of this Agreement and the termination and the expiration of the Rights. The costs and expenses incurred in enforcing this right of indemnification shall be paid by the Company. Anything to the contrary notwithstanding, in no event shall the Rights Agent be liable for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage. Any liability of the Rights Agent under the Rights Agreement will be limited to the amount of fees paid by the Company to the Rights Agent." 10. This Amendment shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. 11. This Amendment may be executed in counterparts and each of such counterparts shall for all purposes be deemed to be an original, and both such counterparts shall together constitute but one and the same instrument. 12. 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. 4 5 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. MOTIVEPOWER INDUSTRIES, INC. By: /s/ Jeannette Fisher-Garber ------------------------------------ Name: Jeannette Fisher-Garber Title: Vice President, General Counsel and Secretary Attest By: /s/ Thomas P. Lyons ------------------------------------- Name: Thomas P. Lyons Title: Vice President and Treasurer CHASEMELLON SHAREHOLDER SERVICES, L.L.C., as Rights Agent By: /s/ J.D. Curtin ------------------------------------ Name: J.D. Curtin Title: Assistant vice President Attest By: /s/ L.T. Schweiger ------------------------------------- Name: L.T. Schweiger Title: Senior Account Administrator 5 -----END PRIVACY-ENHANCED MESSAGE-----