EXHIBIT 4.2
AMENDMENT TO STOCKHOLDERS AGREEMENT
This Amendment to Stockholders Agreement (the "Amendment"), dated as
of July __, 1996, between MK Rail Corporation, a Delaware corporation ("MK
Rail"), and Xxxxxxxx Xxxxxxx Corporation, an Ohio corporation ("MKO").
WHEREAS, in connection with the reorganization of Xxxxxxxx Xxxxxxx
Corporation, a Delaware corporation ("MK"), in a case filed under Title 11 of
the United States Bankruptcy Code, as amended (the "Bankruptcy Code"), MK Rail
and MKO executed and delivered a Stockholders Agreement (the "Agreement")
dated as June 20, 1996; and
WHEREAS, the Agreement contains certain agreements regarding the
registration and voting of restricted shares of common stock of MK Rail held
by MKO which stock it was contemplated would be distributed to certain
creditors of MK and MKO; and
WHEREAS, as a result of negotiations between MK and equity holders
of MK, it is contemplated that MK's plan of reorganization will be amended so
that it provides for rights or options to be granted to equity holders of MK
which will permit them, subject to satisfaction of certain conditions, to
receive a portion of the restricted shares of common stock of MK Rail held by
MKO; and
WHEREAS, MK has made a motion (an "1145 Motion") requesting that the
Bankruptcy Court having jurisdiction over MK's bankruptcy proceeding issue an
order (an "1145 Order") providing that the offering, issuance, sale and
distribution by MKO of the common stock of MK Rail qualifies for the exemption
(the "1145 Exemption"), available under Section 1145(a) of the Bankruptcy
Code, from the registration requirements of the Securities Act of 1933, as
amended; and
WHEREAS, the Securities and Exchange Commission has stated that it
will not object to the 1145 Motion; and
WHEREAS, the parties wish to amend the Agreement as set forth herein
to make certain changes thereto necessitated by the possibility that equity
holders of MK may acquire some restricted shares of Common Stock and that the
1145 Motion has been made;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The term "Rights Plan Amendment" is hereby amended and restated in
its entirety so it means the Second Amendment to Rights Agreement dated as of
June 20, 1996 and the Third Amendment to Rights Agreement of even date
herewith between MK Rail and Xxxxx Xxxxxx Shareholder Services, L.L.C.,
formerly known as Chemical Mellon Shareholder Services, L.L.C.
2. The following language is added at the end of the last sentence of
the definition of "Registrable Securities" in Section 1.1 of the Agreement:
or in "ordinary trading transactions" within the meaning of Section
1145(b)(1) of the United States Bankruptcy Code, as amended (the
"Bankruptcy Code").
3. The reference to "creditors of MK" in the definition of "Shares" in
Section 1.1 of the Agreement is hereby changed to a reference to "persons."
4. The first sentence of Section 8 of the Agreement is hereby amended
in its entirety to read as follows:
Notwithstanding anything in this Agreement to the contrary, no Holder may
Transfer any shares of Common Stock to any Person, except as set forth in
the last paragraph of this Section 8, unless prior to any such Transfer
such Person has executed an agreement (in the form of Exhibit A hereto)
to be bound, or has otherwise been effectively bound pursuant to the
Plan, by the provisions of this Agreement.
5. The last sentence of Section 8 of the Agreement is hereby amended,
restated and replaced in its entirety by the following sentences:
MKO may distribute shares of Common Stock to equity holders of MK
provided that (a) the 1145 Order has been issued and is in full force and
effect and is not the subject of a pending appeal at the time the Common
Stock is distributed and (b) each equity holder receiving such Common
Stock has executed an agreement (in the form of Exhibit A hereto) to be
bound, or has otherwise been effectively bound pursuant to the Plan, by
the provisions of this Agreement. No distribution of Common Stock to
equity holders or any other party in a distribution that qualifies for
the 1145 Exemption shall excuse any party from or be deemed to constitute
a release of the transfer restrictions and legending requirements set
forth in this Section 8, except as set forth in the penultimate sentence
of this paragraph, and all Common Stock so distributed shall after such
distribution be subject to said transfer restrictions and legend
requirements as well as all other terms and conditions hereof. The
foregoing transfer restrictions and legend shall be removed in connection
with any sale of Common Stock to the public pursuant to an effective
registration statement or pursuant to Rule 144 or any similar rule
promulgated by the Commission under the Securities Act, or in "ordinary
trading transactions" within the meaning of Section 1145(b)(1) of the
Bankruptcy Code, in each case so long as the specific identities of the
Transferees are not known to the Holders selling such shares prior to
such sale and so long as the Transferees are not assigned and do not
receive any rights under this Agreement. The Company may also put the
following legend on certificates of stock held by Transferees of MKO and
their Transferees that are bound to the terms of this Agreement:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR ANY STATE SECURITIES LAWS. SUCH SHARES OF STOCK MAY NOT BE
TRANSFERRED EXCEPT (1) PURSUANT TO A REGISTRATION STATEMENT
EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS,
(2) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE ACT AND ANY APPLICABLE STATE SECURITIES LAW, OR (3) IF THE STOCK
HAS BEEN RECEIVED BY THE HOLDER HEREOF IN A DISTRIBUTION THAT
QUALIFIES FOR THE EXEMPTION, AVAILABLE UNDER XXXXXXX 0000(x) XX XXX
XXXXXX XXXXXX BANKRUPTCY CODE, AS AMENDED (THE "BANKRUPTCY CODE"),
TO THE REGISTRATION REQUIREMENTS OF THE ACT, IN ORDINARY TRADING
TRANSACTIONS WITHIN THE MEANING OF SECTION 1145(b)(1) OF THE
BANKRUPTCY CODE.
6. All terms and provisions of the Agreement, as amended hereby, shall
continue to be in full force and effect.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the day and year first set forth above.
MK RAIL CORPORATION
By:__________________________
Title:_______________________
XXXXXXXX XXXXXXX CORPORATION
By:__________________________
Title:_______________________
