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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
KYSOR INDUSTRIAL CORPORATION
(Exact name of registrant as specified in its charter)
MICHIGAN 38-1909000
(State of incorporation or organization) (IRS Employer
Identification No.)
ONE MADISON AVENUE
CADILLAC, MICHIGAN 49601
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
<S> <C> <C>
Common Share Purchase Rights New York Stock Exchange
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Securities to be registered pursuant to Section 12(g) of the Act:
NONE
(Title of Class)
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Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
Item 1 is amended to add the following:
Effective as of December 17, 1996, Harris Trust and Savings Bank was
appointed as successor Rights Agent under the Rights Agreement dated as of
April 26, 1996 (the "Rights Agreement"). In connection with such change in
Rights Agents, Kysor Industrial Corporation ("Kysor") executed Amendment
No.1 ("Amendment No.1") to the Rights Agreement. Amendment No.1 amends
Section 21 of the Rights Agreement to provide that the Rights Agent shall
be a corporation organized and doing business under the laws of the United
States or of the State of Michigan or Illinois (or of any other state of
the United States so long as such corporation is authorized to do
business as a banking institution in the State of Michigan or Illinois),
in good standing, having a principal office in the State of Michigan or
Illinois which is authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by federal or state
authority and which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $50 million.
As publicly announced on February 2, 1997, Kysor has entered into an
Agreement and Plan of Merger (the "Merger Agreement") with Scotsman
Industries, Inc., a Delaware corporation ("Scotsman") and K Acquisition
Corp., a Michigan corporation and wholly owned subsidiary of Scotsman
("K"). In connection with the Merger Agreement, Kysor executed Amendment
No.2 ("Amendment No.2") to the Rights Agreement.
Amendment No.2 amends Sections 1(a), 7(a) and 11 of the Rights
Agreement to (a) prevent Scotsman or K from becoming an "Acquiring Person",
(b) prevent a "Distribution Date" from occurring, and (c) prevent an
adjustment to the purchase price, number and kind of Shares or number of
rights as a result of: (i) the announcement, commencement or consummation
of the Offer (as defined in the Merger Agreement), or (ii) the execution of
the Merger Agreement or the consummation of the transaction contemplated
thereby.
Amendment No.2 also amends Section 13 to exempt both (a) the execution
of the Merger Agreement or any amendment thereto and (b) the consummation
of the transactions contemplated by the Merger Agreement from Section 13's
triggering provisions.
The form of Rights Agreement between Kysor and the Rights Agent
specifying the terms of the rights is attached as Exhibits 1 and 2 to the
Form 8-A filed May 1, 1996. Amendment No.1 to the Rights Agreement is
attached hereto as Exhibit 99(b). Amendment No.2 to the Rights Agreement
is attached hereto as Exhibit 99(c). All exhibits to the Form 8-A included
in this Form 8-A Amendment thereto are incorporated herein by reference.
The foregoing description of the Rights Agreement and the Amendments
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thereto does not purport to be complete and is qualified in its entirety by
reference to such exhibits.
Item 2. EXHIBITS
99(a) Form of Rights Agreement, dated as of April 26, 1996,
between Kysor Industrial Corporation and State Street Bank &
Trust Co. as Rights Agent, which includes the form of Rights
Certificate and the Summary of Rights to Purchase Common
Shares, and the form of letter sent to Kysor shareholders on
or about April 26, 1996. Previously filed as Exhibits 99(a)
and 99(b) to the Form 8-A filed May 1, 1996.
99(b) Amendment No.1 to the Rights Agreement dated as of December
17, 1996
99(c) Amendment No.2 to the Rights Agreement dated as of February
2, 1997
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
KYSOR INDUSTRIAL CORPORATION
(Registrant)
Dated: February 13, 1997 By /S/ TERRY M. MURPHY
Its VICE PRESIDENT-CHIEF
FINANCIAL OFFICER
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EXHIBIT INDEX
EXHIBIT DOCUMENT
99(a) Form of Rights Agreement, dated as of April 26, 1996,
between Kysor Industrial Corporation and State Street Bank &
Trust Co. as Rights Agent, which includes the form of Rights
Certificate and the Summary of Rights to Purchase Common
Shares, and the form of letter sent to Kysor shareholders on
or about April 26, 1996. Previously filed as Exhibits 99(a)
and 99(b) to the Form 8-A filed May 1, 1996.
99(b) Amendment No.1 to the Rights Agreement dated as of December
17, 1996
99(c) Amendment No.2 to the Rights Agreement dated as of
February 2, 1997.
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EXHIBIT 99(b)
AMENDMENT NO.1 TO RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO RIGHTS AGREEMENT (the "First Amendment")
is made effective as of December 17, 1996, by and between Kysor Industrial
Corporation, a Michigan corporation (the "Company") and State Street Bank &
Trust Co., a Massachusetts corporation (the "Rights Agent"). This First
Amendment amends the Rights Agreement dated as of April 26, 1996, between
the Company and the Rights Agent (the "Rights Agreement"). Capitalized
terms used but not defined in this First Amendment have the meanings
ascribed to them in the Rights Agreement.
RECITALS
The Board of Directors of the Company wants to appoint Harris
Trust and Savings Bank of Chicago, Illinois ("Harris"), as successor Rights
Agent and transfer to Harris the duties of the Rights Agent under the
Rights Agreement. To facilitate the transfer of duties of the Rights Agent
to Harris, the Board of Directors of the Company determined to amend
Section 21 of the Rights Agreement as set forth below.
Accordingly, the parties agree as follows:
1. AMENDMENT OF SECTION 21 OF RIGHTS AGREEMENT. Section 21 of
the Rights Agreement is hereby amended in its entirety to read as follows:
SECTION 21. CHANGE OF RIGHTS AGENT. The Rights Agent
or any successor Rights Agent may resign and be discharged
from its duties under this Agreement upon thirty (30) days'
notice in writing mailed to the Company and to each transfer
agent of the Common Shares by registered or certified mail,
and to the holders of the Rights Certificates by first-class
mail. The Company may remove the Rights Agent or any
successor Rights Agent upon thirty (30) days' notice in
writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the
Common Shares by registered or certified mail, and to the
holders of the Rights Certificates by first-class mail. If
the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company
shall fail to make such appointment within a period of
thirty (30) days after giving notice of such removal or
after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or
by the holder of a Rights Certificate (who shall, with such
notice, submit his Rights Certificate for inspection by the
Company), then the registered holder of any Rights
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Certificate may apply to any court of competent jurisdiction
for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a
court, shall be a corporation organized and doing business
under the laws of the United States or of the State of
Michigan or Illinois (or of any other state of the United
States so long as such corporation is authorized to do
business as a banking institution in the State of Michigan
or Illinois), in good standing, having a principal office in
the State of Michigan or Illinois which is authorized under
such laws to exercise corporate trust powers and is subject
to supervision or examination by federal or state authority
and which has at the time of its appointment as Rights Agent
a combined capital and surplus of at least $50 million.
After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and
responsibilities as if it had been originally named as
Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the
successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment the
Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the
Common Shares, and mail a notice thereof in writing to the
registered holders of the Rights Certificates. Failure to
give any notice provided for in this Section 21, however, or
any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent
or the appointment of the successor Rights Agent, as the
case may be.
2. CONSENT OF HARRIS AND RIGHTS AGENT. Rights Agent and Harris
hereby consent to the appointment of Harris as successor Rights Agent under
the Rights Agreement.
SIGNED effective as of the date first written above
KYSOR INDUSTRIAL CORPORATION
By: /S/ TERRY M. MURPHY
Terry M. Murphy
Vice President-Chief Financial Officer
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STATE STREET BANK & TRUST CO.
By: /S/ LAURA WELCH
Its: ADMINISTRATION MANAGER
HARRIS TRUST AND SAVINGS BANK
By: /S/ KIETH A. BRADLEY
Its: ASSISTANT VICE PRESIDENT
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EXHIBIT 99(c)
AMENDMENT NO. 2 TO RIGHTS AGREEMENT, dated as of February 2,
1997, between KYSOR INDUSTRIAL CORPORATION, a Michigan corporation (the
"Company"), and HARRIS TRUST AND SAVINGS BANK (the "Rights Agent"),
amending the Rights Agreement, dated as of April 26, 1996, between the
Company and the Rights Agent (the "Rights Agreement").
W I T N E S S E T H
WHEREAS, the Board of Directors of the Company has approved an
Agreement and Plan of Merger (the "Merger Agreement") by and among the
Company, Scotsman Industries, Inc., a Delaware corporation ("Scotsman"),
and K Acquisition Corporation, a Michigan corporation and a wholly-owned
subsidiary of Scotsman ("K Acquisition"), providing for K Acquisition to
commence an all-cash tender offer for all outstanding shares of capital
stock of the Company (the "Offer") and for the subsequent merger of K
Acquisition into the Company (the "Merger");
WHEREAS, the Board of Directors of the Company has determined
that the Offer and the Merger are fair to and in the best interests of the
Company and its shareholders;
WHEREAS, the willingness of Scotsman and K Acquisition to enter
into the Merger Agreement is conditioned on, among other things, the
amendment of the Rights Agreement on the terms set forth herein; and
WHEREAS, Section 26 of the Rights Agreement provides that, among
other things, prior to the Distribution Date and subject to the
restrictions set forth in the penultimate sentence of such Section, the
Company may, and the Rights Agent shall, if the Company so directs,
supplement or amend any provisions of the Rights Agreement without the
approval of any holders of certificates representing shares of Common
Stock;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth in the Rights Agreement and this Amendment, the
parties hereby agree as follows:
1. Section 1 of the Rights Agreement is hereby amended by
adding the following definitions thereto:
"K Acquisition" shall mean K Acquisition Corporation, a
Michigan corporation and a wholly-owned subsidiary of Scotsman.
"Merger" shall mean the merger of K Acquisition into the
Company as contemplated by the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of February 2, 1997, by and among Scotsman, K
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Acquisition and the Company, as the same may be amended in
accordance with the terms thereof.
"Offer" shall have the meaning set forth in the Merger
Agreement.
"Scotsman" shall mean Scotsman Industries, Inc. a Delaware
corporation.
2. Section 1(a) of the Rights Agreement is hereby amended by
adding to the end thereof the following:
"Notwithstanding anything to the contrary contained herein,
neither Scotsman nor K Acquisition shall be or become an
"Acquiring Person" (and no Shares Acquisition Date shall occur)
as a result of (i) the announcement, commencement or consummation
of the Offer, or (ii) the execution of the Merger Agreement (or
any amendment thereto in accordance with the terms thereof) or
the consummation of the transactions contemplated thereby
(including, without limitation, the Offer and the Merger)."
3. Section 3(a) of the Rights Agreement is hereby amended by
adding to the end thereof the following:
"Notwithstanding anything to the contrary contained herein,
no Distribution Date shall occur as a result of (i) the
announcement, commencement or consummation of the Offer, or
(ii) the execution of the Merger Agreement (or any amendment
thereto in accordance with the terms thereof) or the consummation
of the transactions contemplated thereby (including, without
limitation, the Offer and the Merger), and no Distribution Date
will, in any event, occur prior to the effective time of the
Merger or the earlier termination of the Merger Agreement."
4. Section 7(a) of the Rights Agreement is hereby amended by
replacing the word "earlier" in its first occurrence with the word
"earliest", by deleting the word "or" immediately prior to the symbol
"(ii)", and by replacing the words "(the earlier of (i) and (ii), being
herein referred to as the "Expiration Date")" with the following:
"and (iii) immediately prior to the effective time of the
Merger (the earliest of (i), (ii) and (iii) being herein referred
to as the "Expiration Date")."
5. Section 11 of the Rights Agreement is hereby amended by
adding to the end thereof the following:
"(n) Notwithstanding anything to the contrary contained
herein, the provisions of this Section 11 will not apply to or be
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triggered by (i) the announcement, commencement or consummation
of the Offer, or (ii) the execution of the Merger Agreement (or
any amendment thereto in accordance with the terms thereof) or
the consummation of the transactions contemplated thereby
(including, without limitation, the Offer and the Merger)."
6. Section 13 of the Rights Agreement is hereby amended by
adding to the end thereof the following:
"(d) Notwithstanding anything to the contrary contained
herein, the provisions of this Section 13 will not apply to or be
triggered by the execution of the Merger Agreement or any
amendment thereto or the consummation of the transactions
contemplated thereby (including, without limitation, the
Merger)."
7. The Rights Agent shall not be liable for or by reason of any
of the statements of fact or recitals contained in this Amendment.
8. The term "Agreement" as used in the Rights Agreement shall
be deemed to refer to the Rights Agreement as amended by this Amendment No.
2.
9. Except as set forth herein, the Rights Agreement shall
remain in full force and effect and shall be otherwise unaffected hereby.
10. This Amendment No. 2 may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 2 to be duly executed, all as of the day and year first above written.
KYSOR INDUSTRIAL CORPORATION
By /S/ TERRY M. MURPHY
Its VICE PRESIDENT-CHIEF FINANCIAL
OFFICER
HARRIS TRUST AND SAVINGS BANK,
as Rights Agent
By /S/ KIETH A. BRADLEY
Its ASSISTANT VICE PRESIDENT
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