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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.
_________________________________________________________________
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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
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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
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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.
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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
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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
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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
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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.
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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 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
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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.
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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)
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(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.
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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
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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
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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
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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
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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:
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"(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
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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.
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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.
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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
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