FORM 8-A
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
ATCHISON CASTING CORPORATION
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(Exact name of registrant as specified in its charter)
Kansas 48-1156578
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
400 South Fourth Street, Atchison, Kansas 66002
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Preferred Stock Purchase Rights New York Stock Exchange
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A(c), check the following box. |X|
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A(d), check the following box. |_|
Securities to be registered pursuant to Section 12(g) of the Act:
Not Applicable
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The Board of Directors of Atchison Casting Corporation, a Kansas
Corporation (the "Company"), declared a dividend of one Preferred Stock Purchase
Right (a "Right") For each share of Common Stock, $.01 par value (the "Common
Stock") of the Company outstanding at the close of business on March 21, 2000,
or such later date as this Registration Statement on Form 8-A is declared
effective (the "Record Date"), or issued thereafter and prior to the
Distribution Date (as defined in the Rights Agreement described below). The
Rights are being issued pursuant to a Rights Agreement between the Company and
American Stock Transfer & Trust Company (the "Rights Agreement").
Each Right entitles its registered holder to purchase from the Company,
after the Distribution Date (as defined below), 1/1000th of one share of Series
A Participating Cumulative Preferred Stock (the "Preferred Stock") for $30.00
(the "Exercise Price"), subject to adjustment. The Rights will be evidenced by
the Common Stock certificates until the "Distribution Date," which is the close
of business on the earlier of (i) the tenth business day (or such later date as
the Board of Directors of the Company may from time to time fix by resolution
adopted prior to the Distribution Date that would otherwise have occurred) after
the date on which any Person (as defined in the Rights Agreement) commences a
tender or exchange offer which, if consummated, would result in such Person's
becoming an Acquiring Person (as defined below) and (ii) the tenth business day
after the first date of public announcement by the Company that such Person has
become an Acquiring Person (the "Flip-in Date") or such earlier or later date as
the Board of Directors of the Company may from time to time fix by resolution
adopted prior to the Flip-in Date (as defined below) that would otherwise have
occurred; provided that if a tender or exchange offer referred to in clause (i)
is canceled, terminated or otherwise withdrawn prior to the Distribution Date
without the purchase of any shares of stock pursuant thereto, such offer shall
be deemed never to have been made.
An "Acquiring Person" is any Person who is the Beneficial Owner (as
defined in the Rights Agreement) of 20% or more of the outstanding shares of
Common Stock of the Company then outstanding, but shall not include the Company,
any Subsidiary (as defined in the Rights Agreement ) of the Company, any
employee stock ownership plan or employee benefit plan of the Company or any
Subsidiary of the Company, or any Person holding Common Shares for or pursuant
to the terms of any such plan. 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
divest as promptly as practicable a sufficient number of shares of Common Stock
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 the Rights Agreement.
The Rights Agreement provides that, as of the Record Date and until the
Distribution Date, the Rights will be evidenced by certificates for the Common
Stock registered in the names
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of the holders of the Common Stock and the registered holders of the Common
Stock shall also be registered holders of the associated Rights. Until the
Distribution Date (or the earlier redemption, expiration or termination of the
Rights), the surrender for transfer of any of the certificates of the Common
Stock outstanding in respect of which Rights have been issued shall also
constitute the transfer of the Rights associated with the Common Stock
represented by such certificate. Certificates for the Common Stock issued after
the Record Date, but prior to the earliest of the Distribution Date, the
Redemption Date or the Expiration Time, shall evidence one Right and shall
contain a legend incorporating by reference the terms of the Rights Agreement
(as such may be amended from time to time). With respect to such certificates
not containing the aforementioned legend, until the Distribution Date (or the
earlier redemption, expiration or termination of the rights), the Right
associated with the Common Stock represented by such certificate shall be
evidenced by such certificate alone.
The Rights will not be exercisable until the Business Day (as defined in
the Rights Agreement) following the Distribution Date. The Rights will expire on
the earliest of (i) the Exchange Time (as defined below), (ii) December 31, 2000
in the event that the Company submits the Rights Agreement to its stockholders
for ratification at the immediately preceding annual meeting and holders of more
than 50% of the issued and outstanding Common Stock entitled to vote at the
annual meeting vote against ratification of the Rights Agreement, (iii) the
close of business on the tenth anniversary of the Rights Agreement, (iv) the
date on which the Rights are redeemed as described below and (v) upon certain
mergers of the Company with another corporation pursuant to an agreement entered
into prior to a Flip-in Date (in any such case, the "Expiration Time").
The Exercise Price and the number of Rights outstanding, or in certain
circumstances the securities purchasable upon exercise of the Rights, are
subject to adjustment from time to time to prevent dilution in the event of a
Common Stock dividend on, or a subdivision or a combination into a smaller
number of shares of, Common Stock, or the issuance or distribution of any
securities or assets in respect of, in lieu of or in exchange for Common Stock.
In the event that prior to the Expiration Time a Flip-in Date occurs, each
Right (other than Rights Beneficially Owned by the Acquiring Person or any
Affiliate or Associate thereof, which Rights shall become void) shall constitute
the right to purchase from the Company, upon the exercise thereof in accordance
with the terms of the Rights Agreement, that number of shares of Common Stock of
the Company having an aggregate Market Price (as defined in the Rights
Agreement), on the date of the public announcement by the Company of an
Acquiring Person's becoming such (the "Shares Acquisition Date") that gave rise
to the Flip-in Date, equal to twice the Exercise Price for an amount in cash
equal to the then current Exercise Price. In addition, the Board of Directors of
the Company may, at its option, at any time after a Flip-in Date and prior to
the time an Acquiring Person becomes the Beneficial Owner of more than 50% of
the outstanding shares of Common Stock, elect to exchange all (but not less than
all) the then outstanding Rights (other than Rights Beneficially Owned by the
Acquiring Person or any Affiliate or Associate thereof, which Rights become
void) for shares of Common Stock at an exchange ratio of one share of Common
Stock per Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date of the Distribution
Date (the "Exchange Ratio"). Immediately upon such action by the Board of
Directors (the "Exchange Time"), the right to exercise the Rights will terminate
and each Right will
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thereafter represent only the right to receive a number of shares of Common
Stock equal to the Exchange Ratio.
Whenever the Company shall become obligated under the preceding paragraph
to issue shares of Common Stock upon exercise of or in exchange for Rights, the
Company, at its option, may substitute therefor shares of Preferred Stock, at a
ratio of one one-thousandth (1/1000) of a share of Preferred Stock for each
share of Common Stock so issuable.
In the event that prior to the Expiration Time the Company enters into,
consummates or permits to occur a transaction or series of transactions after
the time an Acquiring Person has become such in which, directly or indirectly,
(i) the Company shall consolidate or merge or participate in a share exchange
with any other Person if, at the time of the consolidation, merger or share
exchange or at the time the Company enters into an agreement with respect to
such consolidation, merger or share exchange, the Acquiring Person controls the
Board of Directors of the Company (as "control" is defined in the Rights
Agreement) and either (A) any term of or arrangement concerning the treatment of
shares of capital stock in such merger, consolidation or share exchange relating
to the Acquiring Person is not identical to the terms and arrangements relating
to other holders of Common Stock or (B) the Person with whom the transaction or
series of transactions occurs in the Acquiring Person or an Affiliate or
Associate of the Acquiring Person or (ii) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or otherwise transfer)
assets (A) aggregating more than 50% of the assets (measured by either book
value or fair market value), or (B) generating more than 50% of the operating
income or cash flow, of the Company and its Subsidiaries (taken as a whole) to
any other Person (other than the Company or one or more of its wholly-owned
Subsidiaries) or to two or more such Persons which are Affiliates or Associates
or otherwise acting in concert, if, at the time the Company (or any such
Subsidiary) enters into an agreement with respect to such sale or transfer, the
Acquiring Person Controls the Board of Directors of the Company (a "Flip-over
Transaction or Event"), the Company shall take such action as shall be necessary
to ensure, and shall not enter into, consummate or permit to occur such
Flip-over Transaction or Event until it shall have entered into a supplemental
agreement with the Flip-over Entity (as defined in the Rights Agreement), for
the benefit of the holders of the Rights, providing, that upon consummation or
occurrence of the Flip-over Transaction or Event (i) each Right shall thereafter
constitute the right to purchase from the Flip-over Entity, upon exercise
thereof in accordance with the terms of the Rights Agreement, that number of
shares of Flip-over Stock (as defined in the Rights Agreement) of the Flip-over
Entity having an aggregate Market Price on the date of consummation or
occurrence of such Flip-Over Transaction or Event equal to twice the Exercise
Price for an amount in cash equal to the then current Exercise Price and (ii)
the Flip-over Entity shall thereafter be liable for, and shall assume, by virtue
of such Flip-over Transaction or Event and such supplemental agreement, all the
obligations and duties of the Company pursuant to the Rights Agreement. For
purposes of the foregoing description, the term "Acquiring Person" shall include
any Acquiring Person and its Affiliates and Associates counted together as a
single Person.
The Board of Directors of the Company may, at its option, at any time
prior to the close of business on the Flip-in Date, redeem all (but not less
than all) the then outstanding Rights at a price of $.01 per Right (the
"Redemption Price"), as provided in the Rights Agreement. Immediately upon the
action of the Board of Directors of the Company electing to redeem the
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Rights, without any further action and without any notice, the right to exercise
the Rights will terminate and each Right will thereafter represent only the
right to receive the Redemption Price in cash for each Right so held.
The holders of Rights will, solely by reason of their ownership of Rights,
have no rights as stockholders of the Company, including, without limitation,
the right to vote or to receive dividends.
The Rights Agreement (which includes as Exhibits A and B the Form of
Certificate of Designation and the Form of Rights Certificate, respectively) is
attached hereto as an exhibit and is incorporated herein by reference. The
foregoing description of the Rights is qualified in its entirety by reference to
the Rights Agreement and such exhibit thereto.
ITEM 2. EXHIBITS.
1 Rights Agreement, dated as of March 28, 2000 between Atchison
Casting Corporation and American Stock Transfer & Trust Company, as
Rights Agent, which included as Exhibit A the form of Certificate of
Designation and as Exhibit B the Form of Rights Certificate.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, as amended, the Registrant has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereto duly authorized.
By:/s/ Kevin T. McDermed
Kevin T. McDermed
Vice President, Chief Financial
Officer, Treasurer and Secretary
Date: March 28, 2000
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EXHIBITS.
1 Rights Agreement, dated as of March 28, 2000 between Atchison Casting
Corporation and American Stock Transfer & Trust Company, as Rights Agent,
which included as Exhibit A the form of Certificate of Designation and as
Exhibit B the Form of Rights Certificate.
Exhibit 1
RIGHTS AGREEMENT
dated as of
March 28, 2000
between
ATCHISON CASTING CORPORATION
And
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as Rights Agent
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RIGHTS AGREEMENT
RIGHTS AGREEMENT dated as of March 28, 2000 between Atchison Casting
Corporation, a Kansas corporation (the "Company"), and American Stock Transfer &
Trust Company, a New York corporation, as Rights Agent (the "Rights Agent",
which term shall include any successor Rights Agent hereunder).
WITNESSETH:
The Board of Directors of the Company has authorized and declared a
dividend of one Right (as hereinafter defined) for each share of Common Stock,
par value $.01 per share, of the Company (the "Common Stock") outstanding at the
Close of Business (as hereinafter defined) on March 21, 2000 (the "Record
Date"), and has authorized the issuance of one Right (as such number may
hereafter be adjusted pursuant to the provisions of this Rights Agreement) with
respect to each share of Common Stock that shall become outstanding between the
Record Date and the earliest of the Distribution Date, the Redemption Date or
the Expiration Date (as such terms are hereinafter defined). Each Right shall
initially represent the right to purchase one one-thousandths (1/1000ths) of a
share of Series A Participating Cumulative Preferred Stock, $.01 par value, of
the Company (the "Preferred Stock"), having the powers, rights and preferences
set forth in the Certificate of Designation attached as Exhibit A.
NOW THEREFORE, in consideration of the premises and the respective
agreements set forth herein, the parties hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
indicated:
"Acquiring Person" shall mean any Person who is a Beneficial Owner
of 20% or more of the outstanding shares of Common Stock; PROVIDED,
HOWEVER, that the term "Acquiring Person" shall not include (i) the
Company, any wholly-owned Subsidiary of the Company and any employee
stock ownership or other employee benefit plan of the Company or a
wholly-owned Subsidiary of the Company, or any Person holding Common
Stock for, or pursuant to the terms of any such plan, or (ii) any
Person who would otherwise be an Acquiring Person if the Board of
Directors of the Company determines in good faith that such Person
has become such inadvertently and such Person promptly enters into
an irrevocable commitment promptly to divest, and thereafter
promptly divests (without exercising or retaining any power,
including voting, with respect to such shares) as promptly as
practicable, sufficient number of shares of Common Stock (or
securities convertible into, exchangeable into or exercisable for
Common Stock) so that such Person ceases to be the Beneficial Owner
of 20% or more of the outstanding Common Stock.
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"Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 under the Securities Exchange
Act of 1934, as such Rule is in effect on the date of this
Agreement.
A Person shall be deemed the "Beneficial Owner", and to have
"Beneficial Ownership" of, and to "Beneficially Own", any securities
as to which such Person or any of such Person's Affiliates or
Associates is or may be deemed to be the beneficial owner of
pursuant to Rules 13d-3 and 13d-5 under the Securities Exchange Act,
as such Rules are in effect on the date of this Agreement, as well
as any securities as to which such Person or any of such Person's
Affiliates or Associates has the right to become Beneficial owner
(whether such right is exercisable immediately or only after the
passage of time or the occurrence of conditions) pursuant to any
agreement, arrangement or understanding, or upon the exercise of
conversion rights, exchange rights, rights (other than the Rights),
warrants or options, or otherwise; PROVIDED, HOWEVER, that a Person
shall not be deemed the "Beneficial Owner", or to have "Beneficial
Ownership" of, or to "Beneficially Own", any security (i) solely
because such security has been tendered pursuant to a tender or
exchange offer made by such Person or any of such Person's
Affiliates or Associates until such tendered security is accepted
for payment or exchange or (ii) solely because such Person or any of
such Person's Affiliates or Associates has or shares the power to
vote or direct the voting of such security pursuant to a revocable
proxy given in response to a public proxy or consent solicitation
made to more than ten holders of shares of a class of stock of the
Company registered under Section 12 of the Securities Exchange Act
of 1934 and pursuant to, and in accordance with, the applicable
rules and regulations under the Securities Exchange Act of 1934,
except if such power (or the arrangements relating thereto) is then
reportable under Item 6 of Schedule 13D under the Securities
Exchange Act of 1934 (or any similar provision of a comparable or
successor report). Notwithstanding the foregoing, no officer or
director of the Company shall be deemed to Beneficially Own any
securities of any other Person (i) by virtue of any actions such
officer or director takes in such capacity as an officer or
director, or (ii) by virtue of holding such position of officer or
director. For purposes of this Agreement, in determining the
percentage of the outstanding shares of Common Stock with respect to
which a Person is the Beneficial owner, all shares as to which such
Person is deemed the Beneficial Owner shall be deemed outstanding.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in Kansas City, Missouri are
generally authorized or obligated by law or executive order to
close.
"Close of Business" on any given date shall mean 4:00 p.m., Kansas
City, Missouri time on such date (or, if such date is not a Business
Day, 4:00 p.m., Kansas City, Missouri time on the next succeeding
Business Day).
"Common Stock" shall mean the shares of Common Stock of the Company.
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"Distribution Date" shall mean the Close of Business on the earlier
of (i) the tenth Business Day (or such later date as the Board of
Directors of the Company may from time to time fix by resolution
adopted prior to the Distribution Date that would otherwise have
occurred) after the date on which any Person commences a tender or
exchange offer which, if consummated, would result in such Person's
becoming an Acquiring Person and (ii) the Flip-in Date; PROVIDED,
that if any tender or exchange offer referred to in clause (i) of
this paragraph is canceled, terminated or otherwise withdrawn prior
to the Distribution Date without the purchase of any shares of
Common Stock pursuant thereto, such offer shall be deemed, for
purposes of this paragraph, never to have been made.
"Effective Rejection Date" shall mean December 31, 2000 if the
Company submits this Agreement to the shareholders of the Company
for ratification at the immediately preceding annual meeting of the
shareholders and holders of more than 50% of the Common Stock of the
Corporation outstanding and entitled to vote at the meeting are cast
against ratification.
"Exchange Time" shall mean the time at which the right to exercise
the Rights shall terminate pursuant to Section 3.1(c) hereof.
"Expiration Time" shall mean the earliest of (i) the Exchange Time,
(ii) the Redemption Time, (iii) the Effective Rejection Date, (iv)
the Close of Business on the 10th anniversary of the date of this
Rights Agreement, and (v) pursuant to an agreement entered into
prior to a Flip-in Date, upon the merger of the Company into another
corporation or with another corporation in which all shares of
Common Stock are either converted into cash and/or securities of
another corporation or, with respect to treasury shares and shares
owned by the other party to the merger or its affiliates, canceled.
"Flip-in Date" shall mean the tenth business day after any Shares
Acquisition Date or such earlier or later date as the Board of
Directors of the Company may from time to time fix by resolution
adopted prior to the Flip-in Date that would otherwise have
occurred.
"Flip-over Entity," for purposes of Section 3.2, shall mean (i) in
the case of a Flip-over Transaction or Event described in clause (i)
of the definition thereof, the Person issuing any securities into
which shares of Common Stock are being converted or exchanged and,
if no such securities are being issued, the other party to such
Flip-over Transaction or Event and (ii) in the case of a Flip-over
Transaction or Event referred to in clause (ii) of the definition
thereof, the Person receiving the greatest portion of the assets or
earning power being transferred in such Flip-over Transaction or
Event, provided in all cases if such Person is a subsidiary of a
corporation, the parent corporation shall be the Flip-over Entity.
"Flip-over Stock" shall mean the capital stock (or similar equity
interest) with the greatest voting power in respect of the election
of directors (or other persons
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similarly responsible for direction of the business and affairs)
of the Flip-over Entity.
"Flip-over Transaction or Event" shall mean a transaction or series
of transactions after a Flip-in Date in which, directly or
indirectly, (i) the Company shall consolidate or merge or
participate in a share exchange with any other Person if, at the
time of the consolidation, merger or share exchange or at the time
the Company enters into any agreement with respect to any such
consolidation, merger or share exchange, the Acquiring Person
"controls" the Board of Directors of the Company and either (A) any
term of or arrangement concerning the treatment of shares of capital
stock in such consolidation, merger or share exchange relating to
the Acquiring Person is not identical to the terms and arrangements
relating to other holders of the Common Stock or (B) the Person with
whom the transaction or series of transactions occurs is the
Acquiring Person or an Affiliate or Associate of the Acquiring
Person or (ii) the Company shall sell or otherwise transfer (or one
or more of its Subsidiaries shall sell or otherwise transfer) assets
(A) aggregating more than 50% of the assets (measured by either book
value or fair market value) or (B) generating more than 50% of the
operating income or cash flow of the Company and its Subsidiaries
(taken as a whole) to any Person (other than the Company or one or
more of its wholly owned Subsidiaries) or to two or more such
Persons which are Affiliates or Associates or otherwise acting in
concert, if, at the time of the entry by the Company (or any such
Subsidiary) into an agreement with respect to such sale or transfer
of assets, the Acquiring Person "controls" the Board of Directors of
the Company. An Acquiring Person shall be deemed to "control" the
Company's Board of Directors when, following a Flip-in Date, the
persons who were directors of the Company before the Flip-in Date
shall cease to constitute a majority of the Company's Board of
Directors.
"Market Price" per share of any securities on any date shall mean
the average of the daily closing prices per share of such securities
(determined as described below) on each of the 20 consecutive
Trading Days through and including the Trading Day immediately
preceding such date; PROVIDED, HOWEVER, that if an event of a type
analogous to any of the events described in Section 2.3 hereof shall
have caused the closing prices used to determine the Market Price on
any Trading Days during such period of 20 Trading Days not to be
fully comparable with the closing price on such date, each such
closing price so used shall be appropriately adjusted in order to
make it fully comparable with the closing price on such date. The
closing price per share of any securities on any date shall be the
last reported sale price, regular way, or, in case no such sale
takes place or is quoted on such date, the average of the closing
bid and asked prices, regular way, for each share of such
securities, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange, Inc. or, if the
securities are not listed or admitted to trading on the New York
Stock Exchange, Inc., as reported in the principal consolidated
transaction reporting system with respect to securities listed on
the principal national securities exchange on which the
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securities are listed or admitted to trading or, if the securities
are not listed or admitted to trading on any national securities
exchange, as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System or such other system then
in use, or, if on any such date the securities are not listed or
admitted to trading on any national securities exchange or quoted by
any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market
in the securities selected by the Board of Directors of the Company;
PROVIDED, HOWEVER, that if on any such date the securities are not
listed or admitted to trading on a national securities exchange or
traded in the over-the-counter market, the closing price per share
of such securities on such date shall mean the fair value per share
of securities on such date as determined in good faith by the Board
of Directors of the Company, after consultation with a nationally
recognized investment banking firm, and set forth in a certificate
delivered to the Rights Agent.
"Person" shall mean any individual, firm, partnership, association,
group (as such term is used in Rule 13d-5 under the Securities
Exchange Act of 1934, as such Rule is in effect on the date of this
Agreement), corporation or other entity.
"Preferred Stock" shall mean the Series A Participating Cumulative
Preferred Stock of the Company having the rights, powers and
preferences set forth in the Certificate of Designation attached as
Exhibit A hereto.
"Purchase Price" shall mean, as of any date, the price at which a
holder may purchase the securities issuable upon exercise of one
whole Right. Until adjustment thereof in accordance with the terms
hereof, the Purchase Price shall equal $30.00.
"Redemption Price" shall mean an amount equal to $0.01.
"Redemption Time" shall mean the time at which the right to exercise
the Rights shall terminate pursuant to Section 5.1 hereof.
"Shares Acquisition Date" shall mean the first date of public
announcement by the Company (by any means) that an Acquiring Person
has become such.
"Subsidiary" of any specified Person shall mean any corporation or
other entity of which a majority of the voting power of the equity
securities or a majority of the equity interest is Beneficially
Owned, directly or indirectly, by such Person.
"Trading Day," when used with respect to any securities, shall mean
a day on which the New York Stock Exchange, Inc. is open for the
transaction of business or, if such securities are not listed or
admitted to trading on the New York Stock Exchange, Inc., a day on
which the principal national securities exchange on which such
securities are listed or admitted to trading is open for the
transaction of business or, if such securities are not listed or
admitted to trading on any national securities exchange, a Business
Day.
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ARTICLE II
THE RIGHTS
2.1 LEGEND ON COMMON STOCK CERTIFICATES. Prior to the earliest of the
Distribution Date, the Redemption Date or the Expiration Date, certificates for
Common Stock shall evidence one Right for each share of Common Stock represented
thereby and shall have impressed on, printed on, written on or otherwise affixed
to them the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement between Atchison
Casting Corporation (the "Company") and American Stock Transfer &
Trust Company, as Rights Agent, dated as of March 28, 2000 (the
"Rights Agreement"), the terms of which are hereby incorporated
herein by reference and a copy of which is on file at the principal
executive offices of the Company. Under certain circumstances, as
set forth in the Rights Agreement, such Rights may be redeemed, may
expire, or may be evidenced by separate certificates and will no
longer be evidenced by this certificate. The Company will mail to
the holder of this certificate a copy of the Rights Agreement
without charge within five days after receipt of a written request
therefor. Under certain circumstances, Rights issued to, or which
are or were Beneficially Owned by, Acquiring Persons or their
Affiliates or Associates (as such terms are defined in the Rights
Agreement) and any subsequent holder of such Rights may become null
and void.
Certificates representing shares of Common Stock issued and outstanding at the
Record Date or issued after the Record Date without the foregoing legend shall
evidence one Right for each share of Common Stock evidenced thereby
notwithstanding the absence of the foregoing legend and the transfer of any of
such certificates representing shares of Common Stock shall also constitute the
transfer of the Rights associated with the Common Stock represented by such
certificates.
2.2 EXERCISE OF RIGHTS; SEPARATION OF RIGHTS.
(a) Subject to Sections 3.1, 5.1 and 5.10 and subject to adjustment
as herein set forth, each Right will entitle the holder thereof, after the
Distribution Date and prior to the Expiration Time, to purchase, for the
Purchase Price, one one-thousandth (1/1000) of a share of Preferred Stock.
(b) Until the Distribution Date, (i) no Right may be exercised and
(ii) each Right will be evidenced by the certificate for the associated
share of Common Stock and will be transferable only together with, and
will be transferred by a transfer of, such associated share.
(c) Subject to this Section 2.2 and to Sections 3.1, 5.1 and 5.10,
after the Distribution Date and prior to the Expiration Time, the Rights
(i) may be exercised and
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(ii) may be transferred independent of shares of Common Stock. Promptly
following the Distribution Date, the Rights Agent will mail by first class
mail at the Company's expense to each holder of record of Common Stock at
such holder's address as shown by the records of the Company (the Company
hereby agreeing to furnish copies of records of each holder, its address,
taxpayer identification number and number of shares held to the Rights
Agent for this purpose), as of the Distribution Date (other than any Person
whose Rights have become void pursuant to Section 3.1(b)), (x) a
certificate (a "Rights Certificate") in substantially the form of Exhibit B
hereto appropriately completed, representing the number of Rights held by
such holder at the Distribution Date and having such marks of
identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be required
to comply with any law or with any rule or regulation made pursuant thereto
or with any rule or regulation of any national securities exchange or
quotation system on which the Rights may from time to time be listed or
traded, or to conform to usage, and (y) a disclosure statement describing
the Rights.
(d) Subject to Sections 3.1, 5.1 and 5.10, Rights may be exercised on
any Business Day after the Distribution Date and prior to the Expiration
Time by submitting to the Rights Agent the Rights Certificate evidencing
such Rights with an Election to Exercise (an "Election to Exercise")
substantially in the form attached to the Rights Certificate duly
completed, accompanied by payment in cash, or by certified or official bank
check or money order payable to the order of the Company, of a sum equal to
the Purchase Price multiplied by the number of Rights being exercised and a
sum sufficient to cover any transfer tax or charge which may be payable in
respect of any transfer involved in the transfer or delivery of Rights
Certificates or the issuance or delivery of certificates for shares or
depositary receipts (or both) in a name other than that of the holder of
the Rights being exercised.
(e) Upon receipt of a Rights Certificate, with an Election to Exercise
accompanied by payment as set forth in Section 2.2(d), and subject to
Sections 3.1, 5.1 and 5.10, the Rights Agent will thereupon promptly (i)
(A) requisition from the Company or its transfer agent stock certificates
evidencing such number of shares of Preferred Stock (the Company hereby
irrevocably authorizing its transfer agents to comply with all such
requisitions) and (B) requisition from the depositary selected by the
Company depositary receipts representing the fractional shares to be
purchased or if the Company elects pursuant to Section 5.5 not to issue
certificates representing fractional shares, requisition from the Company
the amount of cash to be paid in lieu of fractional shares in accordance
with Section 5.5 and (ii) after receipt of such certificates, depositary
receipts and/or cash, deliver the same by first class mail to or upon the
order of the registered holder of such Rights Certificate, registered (in
the case of certificates or depositary receipts) in such name or names as
may be designated by such holder.
(f) In case the holder of any Rights shall exercise less than all the
Rights evidenced by such holder's Rights Certificate, a new Rights
Certificate evidencing the Rights remaining unexercised will be issued by
the Rights Agent to such holder or to such holder's duly authorized
assigns.
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(g) The Company covenants and agrees that it will (i) take all such
action as may be necessary to ensure that all shares delivered upon
exercise of Rights shall, at the time of delivery of the certificates for
such shares (subject to payment of the Purchase Price), be duly and
validly authorized, executed, issued and delivered and fully paid and
nonassessable; (ii) take all such action as may be necessary to comply
with any applicable requirements of the Securities Act of 1933, the
Securities Exchange Act of 1934, and the rules and regulations thereunder,
and any other applicable law, rule or regulation, in connection with the
issuance of any shares upon exercise of Rights; and (iii) pay when due and
payable any and all federal and state transfer taxes and charges which may
be payable in respect of the original issuance or delivery of the Rights
Certificates or of any shares issued upon the exercise of Rights, provided
that the holder of the Rights, and not the Company, shall be required to
pay any transfer tax or charge which may be payable in respect of any
transfer involved in the transfer or delivery of Rights Certificates or
the issuance or delivery of certificates for shares in a name other than
that of the holder of the Rights being transferred or exercised.
2.3 ADJUSTMENTS TO PURCHASE PRICE; NUMBER OF RIGHTS.
(a) In the event the Company shall at any time after the date hereof
and prior to the Distribution Date (i) declare or pay a dividend on Common
Stock payable in Common Stock, (ii) subdivide the outstanding Common Stock
or (iii) combine the outstanding Common Stock into a smaller number of
shares of Common Stock, (x) the Purchase Price in effect after such
adjustment will be equal to the Purchase Price in effect immediately prior
to such adjustment divided by the number of shares of Common Stock (the
"Expansion Factor") that a holder of one share of Common Stock immediately
prior to such dividend, subdivision or combination would hold thereafter
as a result thereof and (y) each Right held prior to such adjustment will
become that number of Rights equal to the Expansion Factor, and the
adjusted number of Rights will be deemed to be distributed among the
shares of Common Stock with respect to which the original Rights were
associated (if they remain outstanding) and the shares issued in respect
of such dividend, subdivision or combination, so that each such share of
Common Stock will have exactly one Right associated with it. Each
adjustment made pursuant to this paragraph shall be made as of the payment
or effective date for the applicable dividend, subdivision or combination.
In the event the Company shall at any time after the date hereof and
prior to the Distribution Date issue any shares of Common Stock otherwise
than in a transaction referred to in the preceding paragraph, each such
share of Common Stock so issued shall automatically have one new Right
associated with it, which Right shall be evidenced by the certificate
representing such share. To the extent provided in Section 5.3, Rights
shall be issued by the Company in respect of shares of Common Stock that
are issued or sold by the Company after the Distribution Date.
(b) In the event the Company shall at any time after the date hereof
and prior to the Distribution Date issue or distribute any securities or
assets in respect of, in lieu of or in exchange for Common Stock (other
than pursuant to a regular periodic cash dividend or a dividend paid
solely in Common Stock) whether by dividend, in a
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reclassification or recapitalization (including any such transaction
involving a merger, consolidation or share exchange), or otherwise, the
Company shall make such adjustments, if any, in the Purchase Price, number
of Rights and/or securities or other property purchasable upon exercise of
Rights as the Board of Directors of the Company, in its sole discretion,
may deem to be appropriate under the circumstances in order to adequately
protect the interests of the holders of Rights generally, the Company shall
give prompt written notice of any such event to the Rights Agent, and the
Company and the Rights Agent shall amend this Agreement as necessary to
provide for such adjustments.
(c) Each adjustment to the Purchase Price made pursuant to this
Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment
to the Purchase Price is made pursuant to this Section 2.3, the Company
shall (i) promptly prepare a certificate setting forth such adjustment and
a brief statement of the facts accounting for such adjustment and (ii)
promptly file with the Rights Agent and with each transfer agent for the
Common Stock a copy of such certificate.
(d) Rights Certificates shall represent the securities purchasable
under the terms of this Agreement, including any adjustment or change in
the securities purchasable upon exercise of the Rights, even though such
Rights Certificates may continue to express the securities purchasable at
the time of issuance of the initial Rights Certificates.
2.4 DATE ON WHICH EXERCISE IS EFFECTIVE. Each person in whose name any
certificate for shares of Preferred Stock is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of the
shares represented thereby on the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment of the Purchase Price
for such shares of Preferred Stock (and any applicable taxes and other
governmental charges payable by the exercising holder hereunder) was made;
PROVIDED, however, that if the date of such surrender and payment is a date upon
which the stock transfer books of the Company are closed, such person shall be
deemed to have become the record holder of such shares of Preferred Stock on,
and such certificate shall be dated, the next succeeding Business Day on which
the stock transfer books of the Company are open.
2.5 Execution, Authentication, Delivery and Dating of Rights
Certificates.
(a) The Rights Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its Chief Executive Officer, its
President, any of its Vice Presidents or its Treasurer, under its
corporate seal reproduced thereon attested by its Secretary or any of its
Assistant Secretaries. The signature of any of these officers on the
Rights Certificates may be manual or facsimile.
Rights Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the countersignature and
delivery of such Rights Certificates.
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Promptly after the Distribution Date, the Company will notify the
Rights Agent of such Distribution Date and will deliver Rights
Certificates executed by the Company to the Rights Agent for
countersignature, and, subject to Section 3.1(b), the Rights Agent shall
manually countersign and deliver such Rights Certificates to the holders
of the Rights pursuant to Section 2.2(c) hereof. No Rights Certificate
shall be valid for any purpose unless manually countersigned by the Rights
Agent.
(b) Each Rights Certificate shall be dated the date of
countersignature thereof.
2.6 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
(a) After the Distribution Date, the Company will cause to be kept a
register (the "Rights Register") in which, subject to such reasonable
regulations as it may prescribe, the Company will provide for the
registration and transfer of Rights. The Rights Agent is hereby appointed
"Rights Registrar" for the purpose of maintaining the Rights Register for
the Company and registering Rights and transfers of Rights after the
Distribution Date as herein provided. In the event that the Rights Agent
shall cease to be the Rights Registrar, the Rights Agent will have the
right to examine the Rights Register at all reasonable times after the
Distribution Date.
After the Distribution Date and prior to the Expiration Time, upon
surrender for registration of transfer or exchange of any Rights
Certificate, and subject to the provisions of Sections 2.6(c) and (d), the
Company will execute, and the Rights Agent will countersign and deliver,
in the name of the holder or the designated transferee or transferees, as
required pursuant to the holder's instructions, one or more new Rights
Certificates evidencing the same aggregate number of Rights as did the
Rights Certificate so surrendered.
(b) Except as otherwise provided in Section 3.1(b), all Rights
issued upon any registration of transfer or exchange of Rights
Certificates shall be the valid obligations of the Company, and such
Rights shall be entitled to the same benefits under this Agreement as the
Rights surrendered upon such registration of transfer or exchange.
(c) Every Rights Certificate surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Rights Agent or
if the Rights Agent shall cease to be the Rights Registrar, in form
satisfactory to the Company, as the case may be, duly executed by the
holder thereof or such holder's attorney duly authorized in writing. As a
condition to the issuance of any new Rights Certificate under this Section
2.6, the Company or the Rights Agent may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto.
(d) The Company and the Rights Agent shall not be required to
register the transfer or exchange of any Rights after such Rights have
become void under Section 3.1(b), been exchanged under Section 3.1(c) or
been redeemed or terminated under Section 5.1.
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2.7 MUTILATED, DESTROYED, LOST AND STOLEN RIGHTS CERTIFICATES.
(a) If any mutilated Rights Certificate is surrendered to the Rights
Agent prior to the Expiration Time, then, subject to Sections 3.1(b),
3.1(c) and 5.1, the Company shall execute and the Rights Agent shall
countersign and deliver in exchange therefor a new Rights Certificate
evidencing the same number of Rights as did the Rights Certificate so
surrendered.
(b) If there shall be delivered to the Rights Agent prior to the
Expiration Time (i) evidence to its satisfaction of the destruction, loss
or theft of any Rights Certificate and (ii) such security or indemnity as
may be required by it to save the Company and the Rights Agent and any of
their agents harmless, then, subject to Sections 3.1(b), 3.1(c) and 5.1
and in the absence of notice to the Rights Agent that such Rights
Certificate has been acquired by a BONA FIDE purchaser, the Company shall
execute and the Rights Agent shall countersign and deliver, in lieu of any
such destroyed, lost or stolen Rights Certificate, a new Rights
Certificate evidencing the same number of Rights as did the Rights
Certificate so destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights Certificate
under this Section 2.7, the Company or the Rights Agent may require the
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including
without limitation the fees and expenses of the attorneys and indemnity
bond premiums) connected therewith.
(d) Every new Rights Certificate issued pursuant to this Section 2.7
in lieu of any destroyed, lost or stolen Rights Certificate shall evidence
an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Rights Certificate shall be at any time
enforceable by anyone, and, subject to Section 3.1(b), shall be entitled
to all the benefits of this Agreement equally and proportionately with any
and all other Rights duly issued hereunder.
2.8. PERSONS DEEMED OWNERS. Prior to due presentment of a Rights
Certificate (or, prior to the Distribution Date, the associated Common Stock
certificate) for registration of transfer, the Company, the Rights Agent and any
agent of the Company or the Rights Agent may deem and treat the person in whose
name such Rights Certificate is registered on the Rights Register (or, prior to
the Distribution Date, such Common Stock certificate is registered on the books
of the Company) is registered as the absolute owner thereof and of the Rights
evidenced thereby for all purposes whatsoever, including the payment of the
Redemption Price and neither the Company nor the Rights Agent shall be affected
by any notice to the contrary. As used in this Agreement, unless the context
otherwise requires, the term "holder" of any Rights shall mean the registered
holder of such Rights (or, prior to the Distribution Date, the associated shares
of Common Stock).
2.9. DELIVERY AND CANCELLATION OF CERTIFICATES. All Rights Certificates
surrendered upon exercise or for registration of transfer or exchange shall, if
surrendered to any person other than the Rights Agent, be delivered to the
Rights Agent and, in any case, shall be promptly cancelled by the Rights Agent.
The Company may at any time deliver to the Rights Agent for
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cancellation any Rights Certificates previously countersigned and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Rights Certificates so delivered shall be promptly cancelled by the Rights
Agent. No Rights Certificates shall be countersigned in lieu of or in exchange
for any Rights Certificates cancelled as provided in this Section 2.9, except as
expressly permitted by this Agreement. The Rights Agent shall destroy all
cancelled Rights Certificates in accordance with applicable law.
2.10 AGREEMENT OF RIGHTS HOLDERS. Every holder of Rights by accepting the
same consents and agrees with the Company and the Rights Agent and with every
other holder of Rights that:
(a) prior to the Distribution Date, each Right will be transferable
only together with, and will be transferred by a transfer of, the
associated share of Common Stock;
(b) after the Distribution Date, the Rights Certificates will
be transferable only on the Rights Register as provided herein;
(c) prior to due presentment of a Rights Certificate (or, prior to
the Distribution Date, the associated Common Stock certificate) for
registration of transfer, the Company, the Rights Agent and any agent of
the Company or the Rights Agent may deem and treat the person in whose
name the Rights Certificate (or, prior to the Distribution Date, the
associated Common Stock certificate) is registered on the Rights Register
as the absolute owner thereof and of the Rights evidenced thereby for all
purposes whatsoever, and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary;
(d) Rights beneficially owned by certain Persons will, under
the circumstances set forth in Section 3.1(b), become void; and
(e) this Agreement may be supplemented or amended from time to time
pursuant to Section 2.3(b) or 5.4 hereof.
ARTICLE III
ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
3.1 FLIP-IN.
(a) In the event that prior to the Expiration Time a Flip-in Date
shall occur, except as provided in this Section 3.1, each Right shall
constitute the right to purchase from the Company, upon exercise thereof
in accordance with the terms hereof (but subject to Section 5.10), that
number of shares of Common Stock having an aggregate Market Price on the
Shares Acquisition Date equal to twice the Purchase Price for an amount in
cash equal to the Purchase Price (such right to be appropriately adjusted
in order to protect the interests of the holders of Rights generally in
the event that on or after such Shares Acquisition Date an event of a type
analogous to any of the events described in Section 2.3(a) or (b) shall
have occurred with respect to the Common Stock).
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(b) Notwithstanding the foregoing, any Rights that are or were
Beneficially Owned on or after the Shares Acquisition Date by an Acquiring
Person or an Affiliate or Associate thereof or by any transferee, direct
or indirect, of any of the foregoing shall become void and any holder of
such Rights (including transferees) shall thereafter have no right to
exercise or transfer such Rights under any provision of this Agreement. If
any Rights Certificate is presented for assignment or exercise and the
Person presenting the same will not complete the certification set forth
at the end of the form of assignment or notice of election to exercise and
provide such additional evidence of the identity of the Beneficial Owner
and its Affiliates and Associates (or former Beneficial Owners and their
Affiliates and Associates) as the Company shall reasonably request, then
the Company and the Rights Agent shall be entitled conclusively to deem
the Beneficial Owner thereof to be an Acquiring Person or an Affiliate or
Associate thereof or a transferee of any of the foregoing and accordingly
will deem the Rights evidenced thereby to be void and not transferable or
exercisable.
(c) The Board of Directors of the Company may, at its option, at any
time after a Flip-in Date and prior to the time that an Acquiring Person
becomes the Beneficial Owner of more than 50% of the outstanding shares of
Common Stock, elect to exchange all (but not less than all) the then
outstanding Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 3.1(b)) for shares of Common Stock
at an exchange ratio of one share of Common Stock per Right, appropriately
adjusted in order to protect the interests of holders of Rights generally
in the event that after the Distribution Date an event of a type analogous
to any of the events described in Section 2.3(a) or (b) shall have
occurred with respect to the Common Stock (such exchange ratio, as
adjusted from time to time, being hereinafter referred to as the "Exchange
Ratio").
Immediately upon the action of the Board of Directors of the Company
electing to exchange the Rights, without any further action and without
any notice, the right to exercise the Rights will terminate and each Right
(other than Rights that have become void pursuant to Section 3.1(b)) will
thereafter represent only the right to receive a number of shares of
Common Stock equal to the Exchange Ratio. Promptly after the action of the
Board of Directors electing to exchange the Rights, the Company shall give
notice thereof (specifying the steps to be taken to receive shares of
Common Stock in exchange for Rights) to the Rights Agent and the holders
of the Rights (other than Rights that have become void pursuant to Section
3.1(b)) outstanding immediately prior thereto by mailing such notice in
accordance with Section 5.9.
Each Person in whose name any certificate for shares of Common Stock
is issued upon the exchange of Rights pursuant to this Section 3.1(c) or
Section 3.1(d) shall for all purposes be deemed to have become the holder
of record of the shares represented thereby on, and such certificate shall
be dated, the date upon which the Rights Certificate evidencing such
Rights was duly surrendered and payment of any applicable taxes and other
governmental charges payable by the holder was made; PROVIDED, HOWEVER,
that if the date of such surrender and payment is a date upon which the
stock transfer books of the Company are closed, such Person shall be
deemed to have become the record holder
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of such shares on, and such certificate shall be dated, the next
succeeding Business Day on which the stock transfer books of the Company
are open.
(d) Whenever the Company shall become obligated under Section 3.1(a)
or (c) to issue shares of Common Stock upon exercise of or in exchange for
Rights, the Company, at its option, may substitute therefor shares of
Preferred Stock, at a ratio of one one-thousandth (1/1000) of a share of
Preferred Stock for each share of Common Stock so issuable.
(e) In the event that there shall not be sufficient treasury shares
or authorized but unissued shares of Common Stock or Preferred Stock of
the Company to permit the exercise or exchange in full of the Rights in
accordance with Section 3.1(a) or (c), the Company shall either (i) call a
meeting of stockholders seeking approval to cause sufficient additional
shares to be authorized (provided that if such approval is not obtained
the Company will take the action specified in clause (ii) of this
sentence) or (ii) take such action as shall be necessary to ensure and
provide, to the extent permitted by applicable law and any agreements or
instruments in effect on the Shares Acquisition Date to which it is a
party, that each Right shall thereafter constitute the right to receive,
(x) at the Company's option, either (A) in return for the Purchase Price,
debt or equity securities or other assets (or a combination thereof)
having a fair value equal to twice the Purchase Price, or (B) without
payment of consideration (except as otherwise required by applicable law),
debt or equity securities or other assets (or a combination thereof)
having a fair value equal to the Purchase Price, or (y) if the Board of
Directors of the Company elects to exchange the Rights in accordance with
Section 3.1(c), debt or equity securities or other assets (or a
combination thereof) having a fair value equal to the product of the
Market Price of a share of Common Stock on the Flip-in Date times the
Exchange Ratio in effect on the Flip-in Date, where in any case set forth
in (x) or (y) above the fair value of such debt or equity securities or
other assets shall be as determined in good faith by the Board of
Directors of the Company, after consultation with a nationally recognized
investment banking firm.
3.2. FLIP-OVER.
(a) Prior to the Expiration Time, the Company shall not enter into
any agreement with respect to, consummate or permit to occur any Flip-over
Transaction or Event unless and until it shall have entered into a
supplemental agreement with the Flip-over Entity, for the benefit of the
holders of the Rights, providing that, upon consummation or occurrence of
the Flip-over Transaction or Event (i) each Right shall thereafter
constitute the right to purchase from the Flip-over Entity, upon exercise
thereof in accordance with the terms hereof, that number of shares of
Flip-over Stock of the Flip-over Entity having an aggregate Market Price
on the date of consummation or occurrence of such Flip-over Transaction or
Event equal to twice the Purchase Price for an amount in cash equal to the
Purchase Price (such right to be appropriately adjusted in order to
protect the interests of the holders of Rights generally in the event that
after such date of consummation or occurrence of an event of a type
analogous to any of the events described in Section 2.3(a) or (b) shall
have occurred with respect to the Flip-over Stock) and (ii) the Flip-over
Entity shall thereafter be liable for, and shall assume, by virtue of
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such Flip-over Transaction or Event and such supplemental agreement, all
the obligations and duties of the Company pursuant to this Agreement. The
provisions of this Section 3.2 shall apply to successive Flip-over
Transactions or Events.
(b) Prior to the Expiration Time, unless the Rights will be redeemed
pursuant to Section 5.1 hereof in connection therewith, the Company shall
not enter into any agreement with respect to, consummate or permit to occur
any Flip-over Transaction or Event if at the time thereof there are any
rights, warrants or securities outstanding or any other arrangements,
agreements or instruments that would eliminate or otherwise diminish in any
material respect the benefits intended to be afforded by this Rights
Agreement to the holders of Rights upon consummation of such transaction.
ARTICLE IV
THE RIGHTS AGENT
4.1 GENERAL.
(a) 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. The Company agrees to pay to
the Rights Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements incurred in
the administration and execution of this Agreement and the exercise and
performance of its duties hereunder. The Company also agrees to indemnify
the Rights Agent for, and to hold it harmless against, any loss,
liability, or expense, incurred without gross negligence, bad faith or
willful misconduct on the part of the Rights Agent, for anything done or
omitted to be done by the Rights Agent in connection with the acceptance
and administration of this Agreement, including without limitation the
costs and expenses of defending against any claim of liability. The
indemnity provided for herein shall survive the expiration or redemption
of the Rights and the termination of this Agreement.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in
connection with its administration of this Agreement in reliance upon any
certificate for securities purchasable upon exercise of Rights, Rights
Certificate, certificate for other securities of the Company, instrument
of assignment or transfer, power of attorney, endorsement, affidavit,
letter, notice, direction, consent, certificate, statement, or other paper
or document believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper person or
persons.
4.2. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT.
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent is a party, or any corporation
succeeding to the stockholder services business of
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the Rights Agent or any successor Rights Agent, will be the successor to
the Rights Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto,
provided that such corporation would be eligible for appointment as a
successor Rights Agent under the provisions of Section 4.4 hereof. In case
at the time such successor Rights Agent succeeds to the agency created by
this Agreement any of the Rights Certificates have been countersigned but
not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of the Rights
Certificates have not been countersigned, any successor Rights Agent may
countersign such Rights Certificates in the name of the successor Rights
Agent; and in all such cases such Rights Certificates will have the full
force provided in the Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent is changed and
at such time any of the Rights Certificates shall have been countersigned
but not delivered, the Rights Agent may adopt the countersignature under
its prior name and deliver Rights Certificates so countersigned; and in
case at that time any of the Rights Certificates shall not have been
countersigned, the Rights Agent may countersign such Rights Certificates
either in its prior name or in its changed name; and in all such cases
such Rights Certificates shall have the full force provided in the Rights
Certificates and in this Agreement.
4.3 DUTIES OF RIGHTS AGENT. The Rights Agent undertakes only the specific
duties and obligations expressly imposed by this Agreement and no implied duties
or obligations shall be read into this Agreement against the Rights Agent, upon
the following terms and conditions, by all of which the Company and the holders
of Rights Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Rights Agent or the Company), and the opinion of
such counsel will be full and complete authorization and protection to the
Rights Agent as to any action taken or omitted by it in good faith and in
accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent deems it necessary or desirable that any fact or matter
be proved or established by the Company prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by a person
believed by the Rights Agent to be the Chairman of the Board, the Chief
Executive Officer, the President or any Vice President and by the
Treasurer or the Secretary or any Assistant Secretary of the Company and
delivered to the Rights Agent; and such certificate will be full
authorization to the Rights Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent will be liable hereunder only for its own gross
negligence, bad faith or willful misconduct.
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(d) The Rights Agent will not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
certificates for securities purchasable upon exercise of Rights or the
Rights Certificates (except its countersignature thereof) or be required
to verify the same, but all such statements and recitals are and will be
deemed to have been made by the Company only.
(e) The Rights Agent will not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof
(except the due authorization, execution and delivery hereof by the Rights
Agent) or in respect of the validity or execution of any certificate for
securities purchasable upon exercise of Rights or Rights Certificate
(except its countersignature thereof), nor will it be responsible for any
breach by the Company of any covenant or condition contained in this
Agreement or in any Rights Certificate; nor will it be responsible for any
change in the exercisability of the Rights (including the Rights becoming
void pursuant to Section 3.1(b) hereof) or any adjustment required under
the provisions of Section 2.3, 3.1 or 3.2 hereof or responsible for the
manner, method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with
respect to the exercise of Rights after receipt of the certificate
contemplated by Section 2.3 describing any such adjustment); nor will it
by any act hereunder be deemed to make any representation or warranty as
to the authorization or reservation of any securities purchasable upon
exercise of Rights or any Rights or as to whether any securities
purchasable upon exercise of Rights will, when issued, be duly and validly
authorized, executed, issued and delivered and fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered
all such further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any person believed by the Rights Agent to be the Chairman of the Board,
the Chief Executive Officer, the President or any Vice President or the
Secretary or any Assistant Secretary or the Treasurer of the Company, and
to apply to such persons for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or suffered by it
in good faith in accordance with instructions of any such person or for
any delay in acting while waiting for such instructions.
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in Common Stock, Rights
or other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though
it were not Rights Agent under this Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity for the
Company or for any other legal entity.
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(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the Rights Agent will not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company resulting from
any such act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
(j) The Rights Agent shall have no responsibility to the Company,
any holders of Rights or any other securities of the Company for interest
or earnings on any monies held by the Rights Agent pursuant to this
Agreement.
(k) The Rights Agent shall not be required to take notice or be
deemed to have notice of any event or condition hereunder, including, but
not limited to, a Distribution Date, a Redemption Date, any adjustment of
the Purchase Price, the Preferred Stock or the Common Stock, the existence
of an Acquiring Person or a Beneficial Owner or any other event or
condition that may require action by the Rights Agent, unless the Rights
Agent shall be specifically notified in writing of such event or condition
by the Company, and all notices or other requirements required by this
Agreement to be delivered to the Rights Agent must, in order to be
effective, be received at the principal office of the Rights Agent, and in
the absence of such notice so delivered, the Rights Agent may conclusively
assume no such event or condition exists.
4.4 CHANGE OF RIGHTS AGENT. The Rights Agent may resign and be discharged
from its duties under this Agreement upon 90 days' notice (or such lesser notice
as is acceptable to the Company) in writing mailed to the Company and to each
transfer agent of Common Stock by registered or certified mail. The Company may
remove the Rights Agent upon 30 days' notice in writing, mailed to the Rights
Agent and to each transfer agent of the Common Stock by registered or certified
mail. If the Rights Agent should resign or be removed or otherwise become
incapable of acting, the Company will appoint a successor to the Rights Agent.
If the Company fails to make such appointment within a period of 30 days after
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
any Rights (which holder shall, with such notice, submit such holder's Rights
Certificate for inspection by the Company), then the holder of any Rights or the
resigning or removed Rights Agent 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 any other State of the United States, in good standing, which is authorized
under such laws to exercise the powers of the Rights Agent contemplated by this
Agreement 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 $50,000,000. After appointment, the
successor Rights Agent will be vested with the same powers, rights, protections,
immunities, duties and responsibilities as if it had been originally named as
Rights Agent without further act or deed and the duties and obligations of the
predecessor Right s Agent hereunder shall cease and terminate; 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 will file
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notice thereof in writing with the predecessor Rights Agent and each transfer
agent of the Common Stock. Failure to give any notice provided for in this
Section 4.4, 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.
ARTICLE V
MISCELLANEOUS
5.1 REDEMPTION.
(a) The Board of Directors of the Company may, at its option, at any
time prior to the Close of Business on the Flip-in Date, elect to redeem
all (but not less than all) the then outstanding Rights at the Redemption
Price and the Company, at its option, may pay the Redemption Price either
in cash or shares of Common Stock or other securities of the Company
deemed by the Board of Directors, in the exercise of its sole discretion,
to be at least equivalent in value to the Redemption Price.
(b) Immediately upon the action of the Board of Directors of the
Company electing to redeem the Rights (or, if the resolution of the Board
of Directors electing to redeem the Rights states that the redemption will
not be effective until the occurrence of a specified future time or event,
upon the occurrence of such future time or event), without any further
action and without any notice, the right to exercise the Rights will
terminate and each Right will thereafter represent only the right to
receive the Redemption Price in cash or securities, as determined by the
Board of Directors. Promptly after the Rights are redeemed, the Company
shall give notice of such redemption to the Rights Agent and the holders
of the then outstanding Rights by mailing such notice in accordance with
Section 5.9.
5.2. EXPIRATION. The Rights and this Agreement shall expire at the
Expiration Time and no Person shall have any rights pursuant to this Agreement
or any Right after the Expiration Time, except, if the Rights are exchanged or
redeemed, as provided in Section 3.1 or 5.1 hereof.
5.3 ISSUANCE OF NEW RIGHTS CERTIFICATES. Notwithstanding any of the
provisions of this Agreement or of the Rights to the contrary, the Company may,
at its option, issue new Rights Certificates evidencing Rights in such form as
may be approved by its Board of Directors to reflect any adjustment or change in
the number or kind or class of shares of stock purchasable upon exercise of
Rights made in accordance with the provisions of this Agreement. In addition, in
connection with the issuance or sale of shares of Common Stock by the Company
following the Distribution Date and prior to the Expiration Time pursuant to the
terms of securities convertible or redeemable into shares of Common Stock or to
options, in each case issued or granted prior to, and outstanding at, the
Distribution Date, the Company shall issue to the holders of such shares of
Common Stock, Rights Certificates representing the appropriate number of Rights
in connection with the issuance or sale of such shares of Common Stock;
PROVIDED, HOWEVER, in each case, (i) no such Rights Certificate shall be issued,
if, and to the extent that, the Company shall be advised by counsel that such
issuance would create a significant risk of material adverse tax consequences to
the Company or to the Person to whom such Rights Certificates would be issued,
(ii) no such Rights Certificates shall be issued if, and to the extent
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that, appropriate adjustment shall have otherwise been made in lieu of the
issuance thereof, and (iii) the Company shall have no obligation to distribute
Rights Certificates to any Acquiring Person or Affiliate or Associate of an
Acquiring Person or any transferee of any of the foregoing.
5.4 SUPPLEMENTS AND AMENDMENTS. The Company and the Rights Agent may from
time to time supplement or amend this Agreement without the approval of any
holders of Rights Certificates in order (i) to cure any ambiguity, (ii) to
correct or supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) prior to the Distribution
Date, to change or supplement the provisions hereunder which the Company may
deem necessary or desirable, or (iv) following the Distribution Date, to change
or supplement the provisions hereunder in any manner which the Company may deem
necessary or desirable and which shall not adversely affect the interests of the
holders of Rights Certificates. Upon the delivery of a certificate from an
appropriate officer of the Company, upon which the Rights Agent is entitled to
rely, which states that the proposed supplement or amendment is in compliance
with the terms of this Section 5.4, the Rights Agent shall execute such
supplement or amendment unless the Rights Agent shall have determined in good
faith that such supplement or amendment would adversely affect its interests
under this Agreement. Prior to the Distribution Date, the interests of the
holders of Rights shall be deemed coincident with the interests of the holders
of Common Stock.
5.5 FRACTIONAL SHARES. If the Company elects not to issue certificates
representing fractional shares upon exercise or redemption of Rights, the
Company shall, in lieu thereof, in the sole discretion of the Board of
Directors, either (a) evidence such fractional shares by depositary receipts
issued pursuant to an appropriate agreement between the Company and a depositary
selected by it, providing that each holder of a depositary receipt shall have
all of the rights, privileges and preferences to which such holder would be
entitled as a beneficial owner of such fractional share, or (b) sell such shares
on behalf of the holders of Rights and pay to the registered holder of such
Rights the appropriate fraction of the price per share received upon such sale.
5.6 RIGHTS OF ACTION. Subject to the terms of this Agreement (including
Section 3.1(b)), rights of action in respect of this Agreement, other than
rights of action vested solely in the Rights Agent, are vested in the respective
holders of the Rights; and any holder of any Rights, without the consent of the
Rights Agent or of the holder of any other Rights, may, on such holder's own
behalf and for such holder's own benefit and the benefit of other holders of
Rights, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, such holder's
right to exercise such holder's Rights in the manner provided in such holder's
Rights Certificate and in this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law for any
breach of this Agreement and will be entitled to specific performance of the
obligations under, and injunctive relief against actual or threatened violations
of, the obligations of any Person subject to this Agreement.
5.7 HOLDER OF RIGHTS NOT DEEMED A STOCKHOLDER. No holder, as such, of any
Rights shall be entitled to vote, receive dividends or be deemed for any purpose
the holder of shares or any other securities which may at any time be issuable
on the exercise of such Rights, nor shall
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anything contained herein or in any Rights Certificate be construed to confer
upon the holder of any Rights, as such, any of the rights of a stockholder of
the Company or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or other
actions affecting stockholders (except as provided in Section 5.8 hereof), or to
receive dividends or subscription rights, or otherwise, until such Rights shall
have been exercised or exchanged in accordance with the provisions hereof.
5.8 NOTICE OF PROPOSED ACTIONS. In case the Company shall propose after
the Distribution Date and prior to the Expiration Time (i) to effect or permit
occurrence of any Flip-over Transaction or Event or (ii) to effect the
liquidation, dissolution or winding up of the Company, then, in each such case,
the Company shall give to each holder of a Right, in accordance with Section 5.9
hereof, a notice of such proposed action, which shall specify the date on which
such Flip-over Transaction or Event, liquidation, dissolution, or winding up is
to take place, and such notice shall be so given at least 20 Business Days prior
to the date of the taking of such proposed action.
5.9 NOTICES. Notices or demands authorized or required by this Agreement
to be given or made by the Rights Agent or by the holder of any Rights to or on
the Company shall be sufficiently given or made if delivered or sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
Atchison Casting Corporation
400 South Fourth Street
Atchison, KS 66002
Attention: Secretary
Any notice or demand authorized or required by this Agreement to be given or
made by the Company or by the holder of any Rights to or on the Rights Agent
shall be sufficiently given or made if delivered or received by registered or
certified mail, postage prepaid, addressed (until another address is filed in
writing with the Company) as follows:
American Stock Transfer & Trust Company, as Rights Agent
6201 15th Ave.
3rd Floor
Brooklyn, NY 11219
Attention: Corporate Trust Department
Notices or demands authorized or required by this Agreement to be given or made
by the Company or the Rights Agent to or on the holder of any Rights shall be
sufficiently given or made if delivered or sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as it appears
upon the Rights Register or, prior to the Distribution Date, on the registry
books of the transfer agent for the Common Stock. Any notice to any holder which
is mailed in the manner herein provided shall be deemed given, whether or not
the holder receives the notice. Failure to give a notice pursuant to the
provisions of this Agreement shall not affect the validity of any action taken
hereunder.
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5.10 SUSPENSION OF EXERCISABILITY. To the extent that the Company
determines in good faith that some action will or need be taken pursuant to
Section 3.1 or to comply with federal or state securities laws, the Company may
suspend the exercisability of the Rights for a reasonable period in order to
take such action or comply with such laws. In the event of any such suspension,
the Company shall issue as promptly as practicable a public announcement stating
that the exercisability or exchangeability of the Rights has been temporarily
suspended. Notice thereof pursuant to Section 5.9 shall not be required.
5.11 COSTS OF ENFORCEMENT. The Company agrees that if the Company or any
other Person the securities of which are purchasable upon exercise of Rights
fails to fulfill any of its obligations pursuant to this Agreement, then the
Company or such Person will reimburse the holder of any Rights for the costs and
expenses (including legal fees) incurred by such holder in actions to enforce
such holder's rights pursuant to any Rights or this Agreement.
5.12 SUCCESSORS. All the covenants and provisions of this Agreement by or
for the benefit of the Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
5.13 BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any Person other than the Company, the Rights Agent and the
holders of the Rights any legal or equitable right, remedy or claim under this
Agreement and this Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the holders of the Rights.
5.14 DETERMINATION AND ACTIONS BY THE BOARD OF DIRECTORS, ETC. The Board
of Directors of the Company shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and powers specifically
granted to the Board or to the Company, or as may be necessary or advisable in
the administration of this Agreement, including, without limitation, the right
and power to (i) interpret the provisions of this Agreement and (ii) make all
determinations deemed necessary or advisable for the administration of this
Agreement. All such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board in good faith, shall (x) be
final, conclusive and binding on the Company, the Rights Agent, the holders of
the Rights and all other parties, and (y) not subject the Board of Directors of
the Company to any liability to the holders of the Rights.
5.15 DESCRIPTIVE HEADINGS. Descriptive headings appear herein for
convenience only and shall not control or affect the meaning or construction
of any of the provisions hereof.
5.16 GOVERNING LAW. THIS AGREEMENT AND EACH RIGHT ISSUED HEREUNDER SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF KANSAS AND FOR
ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SUCH STATE APPLICABLE TO CONTRACTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH
STATE.
5.17 COUNTERPARTS. This Agreement 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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5.18 SEVERABILITY. If any term or provision hereof or the application
thereof to any circumstance shall, in any jurisdiction and to any extent, be
invalid or unenforceable, such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable the remaining terms and provisions
hereof or the application of such term or provision to circumstances other than
those as to which it is held invalid or unenforceable.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
ATCHISON CASTING CORPORATION
By: /s/ Kevin T. McDermed
Name: Kevin T. McDermed
Title: V.P. & Treasurer
AMERICAN STOCK TRANSFER & TRUST COMPANY,
AS RIGHTS AGENT
By: /s/ Herbert J. Lemmer
Name: Herbert J. Lemmer
Title: Vice President
<PAGE>
EXHIBIT A
FORM OF
CERTIFICATE OF DESIGNATION
OF
ATCHISON CASTING CORPORATION
SERIES A
PARTICIPATING CUMULATIVE
PREFERRED STOCK
PURSUANT TO SECTION 17-6401 OF THE GENERAL
CORPORATION CODE OF THE STATE OF KANSAS
Atchison Casting Corporation, a corporation organized and existing under
and by virtue of the General Corporation Code of Kansas, DOES HEREBY CERTIFY:
That at a meeting of the Board of Directors of Atchison Casting
Corporation (the "Corporation") the following resolution was duly adopted
creating 10,000 shares of Preferred Stock, par value $.01 per share, designated
as Series A Participating Cumulative Preferred Stock.
RESOLVED, that pursuant to the authority granted to and vested in
the Board of Directors of this Corporation in accordance with the
provisions of the Certificate of Incorporation, a series of
Preferred Stock of the Corporation be, and it hereby is created, and
the designation and amount thereof and the relative rights,
preferences and limitations thereof are as follows:
1. DESIGNATION AND NUMBER. The designation of this series is the "Series A
Participating Cumulative Preferred Stock" (hereinafter, this "Series"). The
number of shares initially constituting this Series shall be Ten Thousand
(10,000) shares; PROVIDED, HOWEVER, that, if more than a total of 10,000 shares
of this Series shall be issuable upon the exercise of Rights (the "Rights")
issued pursuant to the Rights Agreement dated as of March 28, 2000, between the
Corporation and American Stock Transfer & Trust Company, as Rights Agent (the
"Rights Agreement"), the Board of Directors of the Corporation, pursuant to the
General Corporation Code of the State of Kansas, shall direct by resolution or
resolutions that a certificate be properly executed, acknowledged, filed and
recorded, in accordance with the provisions of Section 17-6003 thereof,
providing for the total number of shares of this Series authorized to be issued
to be increased (to the extent that the Certificate of Incorporation then
permits) to the largest number of whole shares (rounded up to the nearest whole
number) issuable upon exercise of such Rights.
2. DIVIDENDS.
a. Subject to the prior and superior rights of the holders of shares
of any other series of Preferred Stock or other class of capital stock of
the Corporation ranking
<PAGE>
prior and superior to the shares of this Series with respect to dividends,
the holders of shares of this Series shall be entitled to receive, when, as
and if declared by the Board of Directors, out of the assets of the
Corporation legally available therefor, (1) quarterly dividends payable on
the first day of each of March, June, September and December (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or a fraction of a share of this Series, in the amount
of $.01 per whole share (rounded to the nearest cent) less the amount of
all cash dividends declared on this Series pursuant to the following clause
(2) since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of this Series (the total of
which shall not, in any event, be less than zero), and (2) dividends
payable in cash on the payment date for each cash dividend declared on the
Common Stock in an amount per whole share (rounded to the nearest cent)
equal to the Formula Number (as hereinafter defined) then in effect times
the cash dividends then to be paid on each share of Common Stock, par value
$.01, of the Corporation (the "Common Stock"). In addition, if the
Corporation shall pay any dividend or make any distribution on the Common
Stock payable in assets, securities or other forms of noncash consideration
(other than dividends or distributions solely in shares of Common Stock),
then, in each such case, the Corporation shall simultaneously pay or make
on each outstanding whole share of this Series A dividend or distribution
in like kind equal to the Formula Number then in effect times such dividend
or distribution on each share of the Common Stock. As used herein, the
"Formula Number" shall be 1,000; PROVIDED, HOWEVER, that, if at any time
after March 21, 2000, the Corporation shall (i) declare or pay any dividend
on the Common Stock payable in shares of Common Stock or make any
distribution on the Common Stock in shares of Common Stock, (ii) subdivide
(by a stock split or otherwise) the outstanding shares of Common Stock into
a larger number of shares of Common Stock or (iii) combine (by a reverse
stock split or otherwise) the outstanding shares of Common Stock into a
smaller number of shares of Common Stock, then in each such event the
Formula Number shall be adjusted to a number determined by multiplying the
Formula Number in effect immediately prior to such event by a fraction, the
numerator of which is the number of shares of Common Stock that are
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that are outstanding immediately prior
to such event (and rounding the result to the nearest whole number); and
PROVIDED FURTHER, that, if at any time after March 21, 2000, the
Corporation shall issue any shares of its capital stock in a merger,
reclassification, or change of the outstanding shares of Common Stock, then
in each such event the Formula Number shall be appropriately adjusted to
reflect such merger, reclassification or change so that each share of
Preferred Stock continues to be the economic equivalent of a Formula Number
of shares of Common Stock prior to such merger, reclassification or change.
b. The Corporation shall declare a dividend or distribution on this
Series provided in Section 2(a) immediately prior to or at the same time it
declares a dividend or distribution on the Common Stock (other than a
dividend or distribution solely in shares of Common Stock); PROVIDED,
HOWEVER, that, in the event no dividend or distribution (other than a
dividend or distribution in shares of Common Stock) shall have been
declared on the Common Stock during the period between any Quarterly
Dividend
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Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $0.01 per share on this Series shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date. The Board of
Directors may fix a record date for the determination of holders of shares
of this Series entitled to receive a dividend or distribution declared
thereon, which record date shall be the same as the record date for any
corresponding dividend or distribution on the Common Stock.
c. Dividends shall begin to accrue and be cumulative on outstanding
shares of this Series from and after the Quarterly Dividend Payment Date
next preceding the date of original issue of such shares of this Series;
PROVIDED, HOWEVER, that dividends on such shares which are originally
issued after the record date for the determination of holders of shares of
this Series entitled to receive a quarterly dividend and on or prior to the
next succeeding Quarterly Dividend Payment Date shall begin to accrue and
be cumulative from and after such Quarterly Dividend Payment Date.
Notwithstanding the foregoing, dividends on shares of this Series which are
originally issued prior to the record date for the determination of holders
of shares of this Series entitled to receive a quarterly dividend on the
first Quarterly Dividend Payment Date shall be calculated as if cumulative
from and after the last day of the fiscal quarter next preceding the date
of original issuance of such shares. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the shares of this Series in an amount
less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding.
d. So long as any shares of this Series are outstanding, no dividends
or other distributions shall be declared, paid or distributed, or set aside
for payment or distribution, on the Common Stock unless, in each case, the
dividend required by this Section 2 to be declared on this Series shall
have been declared.
e. The holders of the shares of this Series shall not be entitled to
receive any dividends or other distributions except as provided herein.
3. LIQUIDATION RIGHTS. In the event of the liquidation, dissolution or
winding up of the Corporation ("LIQUIDATION"), whether voluntary or involuntary,
no distribution shall be made (1) to the holders of shares of stock ranking
junior to this Series unless, prior thereto, the holders of this Series shall
have received an amount equal to the accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment,
plus an amount equal to the greater of (x) $.01 per whole share or (y) an
aggregate amount per share equal to the Formula Number then in effect times the
aggregate amount to be distributed per share to holders of Common Stock, or (2)
to the holders of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with this Series, except distributions
made ratably on this Series and all other such parity stock in proportion to the
total amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up.
If upon any Liquidation, the assets of the Corporation or proceeds thereof
distributable among the holders of shares of this Series and of any class or
series of capital stock of the Corporation ranking equally with this Series as
to distribution of assets upon Liquidation shall be insufficient to pay in full
the preferential amounts payable to such holders, then such assets or
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<PAGE>
the proceeds thereof shall be distributed among such holders ratably in
accordance with the respective amounts that would be payable on such shares if
all amounts payable thereon were paid in full.
4. VOTING RIGHTS. The holders of shares of this Series shall have
the following voting rights:
a. Each holder of this Series shall be entitled to a number of votes
equal to the Formula Number then in effect, for each share of this Series
held of record on each matter on which holders of the Common Stock or
stockholders generally are entitled to vote, multiplied by the maximum
number of votes per share which any holder of the Common Stock or
stockholders generally then have with respect to such matter (assuming any
holding period or other requirement to vote a greater number of shares is
satisfied).
b. Except as otherwise provided herein or by applicable law, the
holders of shares of this Series and the holders of shares of Common Stock
shall vote together as one class for the election of directors of the
Corporation and on all other matters submitted to a vote of stockholders
of the Corporation.
c. If, at the time of any annual meeting of stockholders for the
election of directors, the equivalent of six quarterly dividends (whether
or not consecutive) payable on any share or shares of this Series are in
default, the number of directors constituting the Board of Directors of
the Corporation shall be increased by one. In addition to voting together
with the holders of Common Stock for the election of other directors of
the Corporation, the holders of record of this Series, voting separately
as a class to the exclusion of the holders of Common Stock, shall be
entitled at said meeting of stockholders (and at each subsequent annual
meeting of stockholders), unless all dividends in arrears have been paid
or declared and set apart for payment prior thereto, to vote for the
election of one director of the Corporation, the holders of any Series
Aeing entitled to cast a number of votes per share of this Series equal to
the Formula Number. Until the default in payments of all dividends which
permitted the election of said directors shall cease to exist, any
director who shall have been so elected pursuant to the next preceding
sentence may be removed at any time, either with or without cause, only by
the affirmative vote of the holders of the shares of this Series at the
time entitled to cast a majority of the votes entitled to be cast for the
election of any such director at a special meeting of such holders called
for that purpose, and any vacancy thereby created may be filled by the
vote of such holders. If and when such default shall cease to exist, the
holders of this Series shall be divested of the foregoing special voting
rights, subject to revesting in the event of each and every subsequent
like default in payments of dividends. Upon the termination of the
foregoing special voting rights, the terms of office of all persons who
may have been elected directors pursuant to said special voting rights
shall forthwith terminate, and the number of directors constituting the
Board of Directors shall be reduced by one. The voting rights granted by
this Section 4(c) shall be in addition to any other voting rights granted
to the holders of this Series in this Section 4.
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<PAGE>
d. Except as provided herein, in Section 11 or by applicable law,
holders of this Series shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for authorizing or
taking any corporate action.
5. RESTRICTIONS ON CERTAIN CORPORATION ACTION.
a. Whenever quarterly dividends or other dividends or distributions
payable on this Series A as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions,
whether or not declared, on shares of this Series outstanding shall have
been paid in full, the Corporation shall not
i. declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to this
Series;
ii. declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with
this Series, except dividends paid ratably on this Series and all
such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such
shares are then entitled;
iii. redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with this Series;
PROVIDED that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in exchange for
shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to this
Series; or
iv. purchase or otherwise acquire for consideration any shares
of this Series, or any shares of stock ranking on a parity with this
Series, except in accordance with a purchase offer made in writing
or by publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective Series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
b. The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under paragraph
(a) of this Section 5, purchase or otherwise acquire such shares at such
time and in such manner.
6. CONSOLIDATION, MERGER, ETC. In case the Corporation shall enter into
any consolidation, merger, combination or other transaction in which the shares
of Common Stock are exchanged for or changed into other stock or securities,
cash or any other property, then in
5
<PAGE>
any such case, the then outstanding shares of this Series shall at the same time
be similarly exchanged or changed into an amount per share equal to the Formula
Number then in effect times the aggregate amount of stock, securities, cash or
any other property (payable in kind), as the case may be, into which or for
which each share of Common Stock is exchanged or changed. In the event both this
Section 6 and Section 2 appear to apply to a transaction, this Section 6 will
control.
7. NO REDEMPTION; NO SINKING FUND.
a. The shares of this Series shall not be subject to redemption by
the Corporation or at the option of any holder of this Series; PROVIDED,
HOWEVER, that the Corporation may purchase or otherwise acquire
outstanding shares of this Series in the open market or by offer to any
holder or holders of shares of this Series.
b. The shares of this Series shall not be subject to or
entitled to the operation of a retirement or sinking fund.
8. RANKING. This Series shall rank junior to all other series of Preferred
Stock of the Corporation, unless the Board of Directors shall specifically
determine otherwise in fixing the powers, preferences and relative,
participating, optional and other special rights of the shares of such Series
and the qualifications, limitations and restrictions thereof.
9. FRACTIONAL SHARES. This Series shall be issuable upon exercise of the
Rights issued pursuant to the Rights Agreement in whole shares or in any
fraction of a share that is one one thousandths (1/1,000ths) of a share or any
integral multiple of such fraction which shall entitle the holder, in proportion
to such holder's fractional shares, to receive dividends, exercise voting
rights, participate in distributions and to have the benefit of all other rights
of holders of this Series. In lieu of fractional shares, the Corporation, prior
to the first issuance of a share or a fraction of a share of this Series, may
elect (1) to make a cash payment as provided in the Rights Agreement for
fractions of a share other than one one-thousandths (1/1,000ths) of a share or
any integral multiple thereof or (2) to issue depository receipts evidencing
such authorized fraction of a share of this Series pursuant to an appropriate
agreement between the Corporation and a depository selected by the Corporation;
PROVIDED that such agreement shall provide that the holders of such depository
receipts shall have all the rights, privileges and preferences to which they are
entitled as holders of this Series.
10. REACQUIRED SHARES. Any shares of this Series purchased or otherwise
acquired by the Corporation in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares of Preferred Stock,
without designation as to series until such shares are once more designated as
part of a particular series by the Board of Directors pursuant to the provisions
of the Certificate of Incorporation.
11. AMENDMENT. None of the powers, preferences and relative,
participating, optional and other special rights of this Series as provided
herein shall be amended in any manner which would alter or change the powers,
preferences, rights or privileges of the holders of this Series so as to affect
them adversely without the affirmative vote of the holders of at least 66-2/3%
of the
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outstanding shares of this Series, voting as a separate class; PROVIDED,
HOWEVER, that no such amendment approved by the holders of at least 66-2/3% of
the outstanding shares of this Series shall be deemed to apply to the powers,
preferences, rights or privileges of any holder of shares of this Series
originally issued upon exercise of a Right after the time of such approval
without the approval of such holder.
IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf
of the Corporation by its Vice President and Secretary this ___ day of
March, 2000.
ATCHISON CASTING CORPORATION
By:
Vice President and Secretary
STATE OF )
) ss.
COUNTY OF )
Before me, the undersigned Notary Public in and for said county and state,
this day personally appeared _________________ and ______________, personally
known to me to be the President and Secretary of ATCHISON CASTING CORPORATION,
and who executed the foregoing instrument as Vice President and Secretary of
ATCHISON CASTING CORPORATION and being first duly sworn, acknowledged reading in
full and fully understanding the foregoing, acknowledged the facts therein
stated to be true and correct, and who further acknowledged the execution of the
same as the voluntary act of the Corporation.
Witness my hand and seal this ______ day of _____________, ______.
Notary Public
My Commission Expires:
______________________________
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<PAGE>
EXHIBIT B
[FORM OF RIGHTS CERTIFICATE]
Certificate No. ________ Rights
THE RIGHTS ARE SUBJECT TO REDEMPTION OR MANDATORY EXCHANGE, AT THE OPTION
OF THE COMPANY, ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. RIGHTS
BENEFICIALLY OWNED BY ACQUIRING PERSONS OR AFFILIATES OR ASSOCIATES
THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) OR TRANSFEREES
OF ANY OF THE FOREGOING WILL BE VOID.
RIGHTS CERTIFICATE
ATCHISON CASTING CORPORATION
This certifies that _______________________, or registered assigns, is the
registered holder of the number of Rights set forth above, each of which
entitles the registered holder thereof, subject to the terms, provisions and
conditions of the Rights Agreement, dated as of March 28, 2000 (as amended from
time to time, the "Rights Agreement"), between Atchison Casting Corporation, a
Kansas corporation (the "Company"), and American Stock Transfer & Trust Company,
as Rights Agent (the "Rights Agent", which term shall include any successor
Rights Agent under the Rights Agreement), to purchase from the Company at any
time after the Distribution Date (as such term is defined in the Rights
Agreement) and prior to the Expiration Time, one one-thousandth of a fully paid
share of Series A Participating Cumulative Preferred Stock, $.01 par value (the
"Preferred Stock"), of the Company (subject to adjustment as provided in the
Rights Agreement) at the Purchase Price referred to below, upon presentation and
surrender of this Rights Certificate with the Form of Election to Exercise duly
executed at the principal office of the Rights Agent in Brooklyn, New York. The
Purchase Price shall initially be $30.00 per Right and shall be subject to
adjustment in certain events as provided in the Rights Agreement.
<PAGE>
In certain circumstances described in the Rights Agreement, the Rights
evidenced hereby may entitle the registered holder thereof to purchase
securities of an entity other than the Company or securities or assets of the
Company other than Preferred Stock, all as provided in the Rights Agreement.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
reference is hereby made for a full description of the rights, limitations of
rights, obligations, duties and immunities hereunder of the Rights Agent, the
Company and the holders of the Rights Certificates. Copies of the Rights
Agreement are on file at the principal office of the Company and are available
without cost upon written request.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the office of the Rights Agent designated for such purpose, may be
exchanged for another Rights Certificate or Rights Certificates of like tenor
evidencing an aggregate number of Rights equal to the aggregate number of Rights
evidenced by the Rights Certificate or Rights Certificates surrendered. If this
Rights Certificate shall be exercised in part, the registered holder shall be
entitled to receive, upon surrender hereof, another Rights Certificate or Rights
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, each Right evidenced by
this Certificate may be (a) redeemed by the Company under certain circumstances,
at its option, at a redemption price of $0.01 per Right or (b) exchanged by the
Company under certain circumstances, at its option, for one share of Common
Stock or one one-thousandth of a share of Preferred Stock per Right (or, in
certain cases, other securities or assets of the Company), subject in each case
to adjustment in certain events as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of any securities
which may at any time be issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed
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to confer upon the holder hereof, as such, any of the rights of a stockholder of
the Company or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or other
actions affecting stockholders (except as provided in the Rights Agreement), or
to receive dividends or subscription rights, or otherwise, until the Rights
evidenced by this Rights Certificate shall have been exercised or exchanged as
provided in the Rights Agreement. This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
ATTEST: ATCHISON CASTING CORPORATION
By______________________________
Secretary
Countersigned:
Date:___________________________
AMERICAN STOCK TRANSFER & TRUST COMPANY, as Rights Agent
By:______________________________
Authorized Signature
<PAGE>
[FORM OF REVERSE SIDE OF RIGHTS CERTIFICATE]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires
to transfer this Rights Certificate.)
FOR VALUE RECEIVED hereby sells, assigns and transfers unto (Please print
name and address of transferee) this Rights Certificate, together with all
right, title and interest therein, and does hereby irrevocably constitute and
appoint _______________ Attorney, to transfer the within-named Rights
Certificate on the books of the within-named Company, with full power of
substitution.
Dated:
Signature Guaranteed:
Signature
(Signature must correspond to name as written upon
the face of this Rights Certificate in every
particular, without alteration or enlargement or
any change whatsoever)
Signatures must be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee Medallion program), pursuant to SEC Rule
17Ad-15.
- --------------------------------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of Rights and
shares of Common Stock, that the Rights evidenced by this Rights Certificate are
not, and, to the knowledge of the undersigned, have never been, Beneficially
Owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in
the Rights Agreement).
-------------------------------------
Signature
- --------------------------------------------------------------------------------
NOTICE
In the event the certification set forth above is not completed in
connection with a purported assignment, the Company will deem the Beneficial
Owner of the Rights evidenced by the enclosed Rights Certificate to be an
Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement) or a transferee of any of the foregoing and accordingly will deem the
Rights evidenced by such Rights Certificate to be void and not transferable or
exercisable.
[To be attached to each Rights Certificate]
<PAGE>
FORM OF ELECTION TO EXERCISE
(To be executed if holder desires to
exercise the Rights Certificate.)
TO: ATCHISON CASTING CORPORATION
The undersigned hereby irrevocably elects to exercise whole Rights
represented by the attached Rights Certificate to purchase the shares of
Preferred Stock issuable upon the exercise of such Rights and requests that
certificates for such shares be issued in the name of:
Address:_________________________
Social Security or Other Taxpayer
Identification Number:_________________________
If such number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
Address:_________________________
Social Security or Other Taxpayer
Identification Number:__________________________
Under penalties of perjury, I certify that:
1. The number shown on this form is my correct taxpayer identification
number (or I am waiting for a number to be issued to me), and
2. I am not subject to backup withholding because: (a) I am exempt from
backup withholding, or (b) I have not been notified by the Internal
Revenue Service (IRS) that I am subject to backup withholding as a result
of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS--You must cross out item 2 above if you have been
notified by the IRS that you are currently subject to backup withholding because
you have failed to report all interest and dividends on your tax return.
Dated:________________________
Signature Guaranteed:_____________________________
Signature
(Signature must correspond to name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement or any change
whatsoever)
Signature Guarantee:____________________________
(Signatures must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee Medallion program), pursuant
to SEC Rule 17Ad-15)
<PAGE>
- --------------------------------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of
Rights and shares of Common Stock, that the Rights evidenced by the attached
Rights Certificate are not, and, to the knowledge of the undersigned, have never
been, Beneficially Owned by an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement).
------------------------------------
Signature
- --------------------------------------------------------------------------------
NOTICE
In the event the certification set forth above is not completed in
connection with a purported exercise, the Company will deem the Beneficial Owner
of the Rights. evidenced by the attached Rights Certificate to be an Acquiring
Person or an Affiliate or Associate thereof (as defined in the Rights Agreement)
or a transferee of any of the foregoing and accordingly will deem the Rights
evidenced by such Rights Certificate to be void and not transferable or
exercisable.
