UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 13D
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Under the Securities Exchange Act of 1934
(Amendment No. __)*
Bucyrus-Erie Company
(Name of Issuer)
Common Stock, $.01 par value per share
(Title of Class of Securities)
118902105
(CUSIP Number)
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J. Andrew Rahl, Jr. Esq.
Anderson Kill Olick & Oshinsky, P.C.
1251 Avenue of the Americas, New York, NY 10020-1182
(212) 278-1469
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
December 14, 1994
(Date of Event which Requires Filing of this Statement)
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If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement /x/. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
CUSIP No. 118902105
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Jackson National Life Insurance Company
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /x/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Conversion of pre-bankruptcy debt and equity obligations to post-bankruptcy
equity in reorganized Issuer pursuant to a Plan of Reorganization. (00).
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Michigan
NUMBER OF 7 SOLE VOTING POWER
SHARES 4,228,384
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH 4,228,384
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 4,228,384
10 SHARED DISPOSITIVE POWER
4,228,384
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,228,384
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
41.6% (*based on amount deemed outstanding as of the effective date of the
Plan of Reorganization)
14 TYPE OF REPORTING PERSON*
Life Insurance Company (IC)
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
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CUSIP No. 118902105
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
PPM America, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /x/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Conversion of pre-bankruptcy debt and equity obligations to post-bankruptcy
equity in reorganized Issuer pursuant to a Plan of Reorganization. (00).
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES 4,228,384
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH 4,228,384
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 4,228,384
10 SHARED DISPOSITIVE POWER
4,228,384
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,228,384
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
41.6% *(based on amount deemed outstanding as of the effective date of the
Plan)
14 TYPE OF REPORTING PERSON*
Investment Adviser (IA)
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION
<PAGE>
Item 1. Security and Issuer.
This statement relates to the common stock, par value $.01 per share
("Common Stock"), of Bucyrus-Erie Company (the "Issuer"). The address of the
principal executive offices of the Issuer is 1100 Milwaukee Avenue, South
Milwaukee, Wisconsin 53172.
Item 2. Identity and Background.
(a) This statement is being filed by Jackson National Life Insurance
Company, a Michigan life insurance company ("JNL"), and PPM America, Inc., a
Delaware corporation ("PPM America"). JNL is a wholly-owned subsidiary of Brooke
Life Insurance Company ("Brooke"), a Michigan corporation which is a
wholly-owned subsidiary of Brooke Holdings, Inc. Brooke Holdings, Inc. is a
Delaware corporation and a wholly-owned subsidiary of Prudential Corporation
Holdings Limited, which is a corporation organized under the laws of the United
Kingdom and a wholly-owned subsidiary of Prudential Corporation plc
("Prudential"). PPM America is a wholly owned subsidiary of Prudential Portfolio
Managers Limited, a corporation organized under the laws of the United Kingdom
("PPM Ltd."), which is, in turn, a wholly-owned subsidiary of Prudential.
Prudential is a corporation organized under the laws of the United Kingdom and
is ultimately in control of each of JNL and PPM America. No notification of a
current shareholding of 3% or more of the share capital of Prudential has been
received by Prudential. The names of the directors and executive officers of
JNL, Brooke, PPM America, PPM Ltd. and Prudential are set forth in Schedule I
hereto and are hereby incorporated herein by reference.
(b) The principal business address of JNL is 5901 Executive Drive, Lansing,
Michigan 48911. The principal business address of PPM America is 225 West Wacker
Drive, Suite 1200, Chicago, Illinois 60606. The principal business address of
Brooke is 5901 Executive Drive, Lansing, Michigan 48911. The principal business
address of PPM Ltd. is 1 Stephen Street, London, W1P 2AP, England. The principal
business address of Prudential is 142 Holborn Bars, London, EC1N 2NH, England.
The principal business addresses of the directors and executive officers of JNL,
PPM America, Brooke, PPM Ltd. and Prudential are
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set forth in Schedule I hereto and are hereby incorporated herein by reference.
(c) The principal business of each of JNL and Brooke is providing life
insurance services and related financial products throughout the United States.
The principal business of PPM America is investment management principally for
JNL and certain other affiliates of Prudential. The principal business of PPM
Ltd. is investment management principally for Prudential and certain of its
affiliates and certain external clients. Prudential is a holding company which
is one of the largest insurance companies in the United Kingdom. The principal
occupation or employment of each of the directors and executive officers of JNL,
PPM America, Brooke, PPM Ltd. and Prudential and the name, principal business
and address of any corporation or other organization in which such occupation or
employment is conducted are set forth in Schedule I hereto and are hereby
incorporated herein by reference.
(d) During the last five years, neither JNL, PPM America, Brooke, PPM Ltd.
or Prudential, nor to the best of their knowledge, any of the directors or
executive officers of any of them, have been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors).
(e) During the last five years, neither JNL, PPM America, Brooke, PPM Ltd.
or Prudential, nor to the best of their knowledge, any of the directors or
executive officers of any of them, have been parties to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree, or final order
enjoining further violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or findings of any violation with respect
to such laws.
(f) See (a) above with respect to the citizenship of each of JNL, PPM
America, Brooke, PPM Ltd. and Prudential. The citizenship of each director and
executive officer of each such entity is set forth in Schedule I hereto and is
hereby incorporated herein by reference.
Item 3. Source and Amount of Funds or Other Consideration.
On February 18, 1994 (the "Petition Date"), each of Bucyrus-Erie Company
("Bucyrus") and its parent, B-E Holdings, Inc. ("Holdings"), filed petitions for
relief under Chapter 11 of the Federal Bankruptcy Code with the United States
Bankruptcy Court, Eastern District of Wisconsin (the "Proceedings"). The Second
Amended Joint Plan of Reorganization of B-E Holdings, Inc. and Bucyrus-Erie
Company dated September 19, 1994, as modified December 1, 1994, (the "Plan"), a
copy of which is annexed hereto as Exhibit 1, was confirmed on December 1, 1994
by the United States Bankruptcy Court, Eastern District of Wisconsin.
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Capitalized terms used but not defined in this Item 3 have the meanings given to
them in the applicable sections of the Plan, which sections are referred to in
this Item 3 after such terms are initially used and are incorporated by
reference herein.
Pursuant to Section 3.09 of the Plan, JNL's claim as the holder of $60
million principal amount of Resettable Senior Notes due January 1, 1996 of the
Issuer (the "Bucyrus Resettable Senior Notes") was classified as a Class 4B
Claim (Sections 1.038, 1.039 and 3.09). Pursuant to Section 3.09(b) of the Plan,
on or as soon as practicable after the Effective Date (Section 1.055) of the
Plan, JNL as the holder of the Allowed (Section 1.004) Class 4B Claim became
entitled to receive, in full and final satisfaction of such claim (i) 4,057,203
shares of Common Stock, and (ii), subject to certain conditions relating to
voting in favor of the Plan and entering into an Indemnification Agreement with
the Creditors Committee, Holdings and Bucyrus, which conditions were satisfied,
(x) any recovery of cash or property obtained by or on behalf of the Issuer with
respect to any Cause of Action (Section 1.036) against a Non-Released Person
(Section 9.04) which arose prior to February 18, 1994, and (y) in the event and
to the extent that a Claim or Equity Interest (Section 1.057) held by a
Non-Released Person is not Allowed by Final Order (Section 1.061) by reason of
the acts or omissions of such Non-Released Person prior to February 18, 1994,
the property that would otherwise have been distributed under the Plan to such
Non-Released Person if such Claim or Equity Interest had been Allowed in full.
Certain releases contained in the Plan do not release any Cause of Action
which Holdings or Bucyrus may have against the Non-Released Persons, being
Goldman Sachs & Co., its affiliate, Broad Street Investment Fund I, L.P., South
Street Corporate Recovery Fund I, L.P., South Street Leveraged Corporate
Recovery Fund, L.P., South Street Corporate Recovery Fund I (International),
L.P., Greycliff Partners, Ltd. or any of their respective successors,
predecessors and other related parties. Pursuant to Section 9.06 of the Plan, by
having entered into the Indemnification Agreement dated as of November 30, 1994
with the Creditors Committee, Holdings and Bucyrus, JNL has the exclusive right
and authority, in its sole discretion to pursue as a representative of Holdings'
and Bucyrus' bankruptcy estates any claims, rights or Causes of Action of
Holdings or Bucyrus against a Non-Released Person. As discussed above, pursuant
to Section 3.09(b), any recovery of cash or property obtained by or on behalf of
the Issuer with respect to any Cause of Action against a Non-Released Person
which arose prior to February 18, 1994 shall constitute a distribution on JNL's
claim as the holder of the Bucyrus Resettable Senior Notes. JNL is required to
pay all the costs and expenses of pursuing such matters.
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Accordingly, pursuant to Section 3.09(b)(ii) of the Plan, JNL and, thus,
PPM may be entitled from time to time after the date of this filing to receive
additional shares of Common Stock.
Pursuant to Section 7.02 of the Plan, Common Stock to be issued under the
Plan is deemed to be issued as of the Effective Date regardless of the date on
which it is actually dated, authenticated or distributed.
Item 4. Purpose of Transaction.
Except as otherwise described herein, the reporting persons acquired the
shares of Common Stock described in Item 5 below for investment purposes.
Although the reporting persons may in the future seek in open market or
privately negotiated transactions, to acquire additional shares of Common Stock
or to dispose of all or a portion of Common Stock covered by this statement, the
reporting persons presently do not intend to acquire additional shares of Common
Stock in the open market or through privately negotiated transactions unless the
price of the shares of Common Stock declines significantly from current levels
or the restrictions described below in this Item 4 relating to the election of
directors of the Issuer are removed or circumstances otherwise change to permit
the reporting persons effectively to control the Board of Directors of the
Issuer. The reporting persons may from time to time consider or discuss with
third parties the disposition of some or all of the shares of Common Stock but
do not presently intend to dispose of such securities. In making any decision
whether to acquire or dispose of shares of Common Stock, the reporting persons
will consider various factors, including, among other things, the Issuer's
financial condition, business and prospects, the price at which such securities
are trading, the corporate governance issues described herein, and the nature of
other opportunities available.
As described in Item 3 hereof, pursuant to Section 3.09(b)(ii) of the Plan,
JNL and, thus, PPM may be entitled from time to time after the date of this
filing to receive additional shares of Common Stock.
The reporting persons have from time to time prior to and during the
Proceedings discussed with Bucyrus, Holdings and/or unrelated third parties
opportunities to engage in an extraordinary corporate transaction involving such
companies or the sale or transfer of a material amount of assets of such
companies. The reporting persons anticipate that they will continue to explore
such types of opportunities with respect to the Issuer, as well as opportunities
for the Issuer to engage in a significant acquisition.
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Pursuant to the Plan, on the Effective Date the Issuer amended and restated
its certificate of incorporation (the "Restated Charter") and its bylaws (the
"Restated Bylaws"). Among other things, the Restated Charter and Restated Bylaws
provide for an initial board of directors consisting of seven directors
(hereinafter referred to, together with their respective successors, if any,
elected in the manner specified in Section 4.7(B) of the Restated Bylaws
described below, the "Original Directors"). Pursuant to the Plan, the persons
listed below were selected to serve as members of the Board of Directors
commencing as of the Effective Date: Phillip W. Mork, the President of Bucyrus,
was selected by Bucyrus' current board of directors (the "Bucyrus Director"); C.
Scott Bartlett, Jr., George A. Poole, Jr. and Skip Victor (the "Committee
Directors") were selected by the statutory creditors committee of unsecured
creditors appointed pursuant to Section 1102 of the Bankruptcy Code (the
"Creditors Committee"); and Joseph J. Radecki, Jr., F. John Stark, III and
Russell W. Swansen were selected by JNL (the "JNL Directors"). The Restated
Charter and Restated Bylaws further provide that each Original Director shall
serve from and after the Effective Date until the annual meeting of stockholders
to be held in 1996 (the "1996 Annual Meeting") and, pursuant to the provisions
of Section 5.04(c) of the Plan described below, from and after the 1996 Annual
Meeting until the Issuer's annual meeting of stockholders to be held in 1997
(the "1997 Annual Meeting"), and until their successors have been duly elected
and qualified.
Pursuant to Sections 5.04(c) of the Plan, all holders of Holdings' and
Bucyrus' unsecured debt securities and Holdings' equity securities who accepted
the Plan by ballot or master ballot and all holders of Holdings' and Bucyrus'
unsecured debt securities and Holdings' equity securities who were entitled to
receive shares of Common Stock pursuant to the Plan are deemed as of the
Effective Date to have irrevocably agreed without any further action:
(i) to cause the shares of Common Stock received pursuant to the Plan
and all other shares of Common Stock beneficially owned by any such holder
following the Effective Date to be voted for the election of each of the
Original Directors as directors of the Issuer at the 1996 Annual Meeting
for a one-year term ending on the date of the 1997 Annual Meeting and until
their successors have been duly elected and qualified; and
(ii) that any sale, transfer or other disposition, whether voluntary
or involuntary, by operation of law or otherwise of any shares of Common
Stock at any time prior to the 1996 Annual Meeting (a "Transfer", and any
person to whom any shares of Common Stock are Transferred is referred to as
a "Transferee") shall be made subject to the irrevocable agreement to vote
such shares of Common Stock
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for the election of each of the Original Directors at the 1996 Annual
Meeting.
Under Section 5.04(c) of the Plan, the irrevocable voting agreement described in
(i) above is binding upon the Transferees. Any amendment or modification of
Section 5.04 at any time prior to the 1997 Annual Meeting is prohibited. In
accordance with Section 5.04 of the Plan, certain provisions of the Restated
Charter (Articles V(A), VII(A), VII(C) and IX) and the Restated Bylaws (Sections
3.9, 4.2, 4.7(B) and 4.9) relating to the election, number, tenure,
qualifications and removal of and vacancies with respect to the Board of
Directors shall not be amended or modified at any time prior to the 1997 Annual
Meeting.
Section 4.7(B) of the Restated Bylaws provides that if prior to the 1997
Annual Meeting, a vacancy in the Board of Directors resulting from the death,
resignation, retirement or removal for cause (an "Original Director Vacancy
Event") of an Original Director occurs, then if such Original Director is (i)
the Bucyrus Director, the Board of Directors shall appoint an officer of the
Issuer who serves in such capacity prior to the Effective Date, or, in the
absence of any such person, an officer of the Issuer then serving in such
capacity; (ii) a JNL Director, the remaining JNL Directors (or their successors)
shall appoint the successor to such JNL Director, provided, however, if an
Original Director Vacancy Event occurs in respect of (x) all JNL Directors or
(y) the remaining JNL Director prior to the appointment of such a successor to
the other JNL Director, then, if at the time the Original Director Vacancy Event
described in (x) or (y) occurs, JNL owns (1) 30% or more of the then issued and
outstanding shares of Common Stock, the President of JNL shall appoint
successors to such JNL Directors or (2) less than 30% of the then issued and
outstanding shares of New Common Stock, a majority of the remaining Original
Directors shall appoint successors to such JNL Directors; or (iii) a Committee
Director, the remaining Committee Directors (or their successors) shall appoint
the successor to such Committee Director, provided, however, if an Original
Director Vacancy Event occurs in respect of (x) all Committee Directors or (y)
the remaining Committee Director prior to the appointment of a successor to the
other Committee Director prior to the appointment of a successor to the other
Committee Director, a majority of the remaining Original Directors shall appoint
successors to such Committee Directors.
Article VII(A) of the Restated Charter provides that except as provided in
the Restated Bylaws in effect immediately after the Effective Date, the size of
the Board of Directors, which shall be fixed at seven members, shall not be
increased or decreased prior to the 1997 Annual Meeting. Section 4.2 of the
Restated Bylaws provides that prior to the 1997 Annual Meeting the Board of
Directors may be increased to more than seven members if a resolution
authorizing such increase is passed at a meeting of the Issuer's Board of
Directors by a resolution
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adopted by (i) not less than two-thirds of the members then constituting the
Board of Directors or (ii) a majority of the Board of Directors in connection
with any transaction involving the Issuer that requires approval of the
stockholders of the Issuer under the General Corporation Law of the State of
Delaware and that is approved by the stockholders at such meeting, provided that
in either case notice of the proposed change was given in a notice provided no
less than 24 hours prior to the meeting of the Board of Directors.
Section 5.04(f) of the Plan prohibits JNL from taking any action, or
causing any Affiliate (as defined in the Bankruptcy Code) thereof to take any
action, to remove any Original Director other than a JNL Director (or any
successor to a JNL Director) prior to the 1997 Annual Meeting, provided that
such prohibition shall not apply to any action by JNL or any Affiliate thereof
to remove any director of the Issuer (i) for any reason at any time when JNL or
any Affiliates thereof in the aggregate (x) beneficially own less than 25% of
all of the outstanding shares of Common Stock or (y) do not constitute the
largest beneficial owner of Common Stock or (ii) for cause.
Accordingly, JNL or PPM may be deemed to have the ability to influence the
Issuer's Board of Directors and the JNL Directors may be deemed to participate,
together with other members of the Issuer's Board of Directors, in the
management of the Issuer. The JNL Directors, in their capacity as members of the
Board of Directors, will necessarily consider proposals from time to time
regarding the business and affairs of the Issuer, possibly including matters of
the nature enumerated in clauses (a) through (j), inclusive, of Item 4 of
Schedule 13D. If any such matter is presented to the Issuer's Board of
Directors, the JNL Directors intend to act thereon in accordance with their
business judgment at such time.
Except as aforesaid, neither JNL, PPM America, Brooke, PPM Ltd. or
Prudential, nor to the best of their knowledge, any of the directors or
executive officers of any of them, presently has plans or proposals which relate
to or would result in any of the matters enumerated in clauses (a) through (j),
inclusive, of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) Items 11 and 13 of the cover pages are incorporated herein by
reference.
Pursuant to Section 7.02 of the Plan, Common Stock to be issued under the
Plan is deemed to be issued as of the Effective Date regardless of the date on
which it is actually dated, authenticated or distributed. Accordingly, based on
information provided by the Issuer, for purposes of determining the percentages
of Common Stock required to be disclosed herein,
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the reporting persons have assumed 10,170,143 to be the total number of
outstanding shares of Common Stock of the Issuer as of the Effective Date.
The Effective Date of the Plan occurred on December 14, 1994. As of such
date, pursuant to Section 3.09(b) of the Plan, JNL received or had the right to
receive, and, accordingly, JNL and PPM America were deemed to hold, an aggregate
amount of 4,228,384 shares of Common Stock, which represents 41.6% of the shares
of Common Stock deemed to be outstanding immediately after the Effective Date of
the Plan.
Except as set forth herein, neither JNL, PPM America, Brooke, PPM Ltd. or
Prudential, nor to the best of their knowledge, any of the directors or
executive officers of any of them, is the beneficial owner of any shares of
Common Stock.
(b) Items 7, 8, 9 and 10 of the cover pages are incorporated herein by
reference. Except as set forth therein, neither JNL, PPM America, Brooke, PPM
Ltd. or Prudential, nor to the best of their knowledge, any of the directors or
executive officers of any of them, has the power to vote or to direct the vote
or to dispose or direct the disposition of any shares of Common Stock.
(c) Except as described in Item 3 above, no transactions in the Common
Stock of the Issuer were effected by JNL, PPM America, Brooke, PPM Ltd. or
Prudential, or to the best of their knowledge, any of the directors or executive
officers of any of them, during the past sixty days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
The disclosure provided in Item 4 hereof with respect to the election of
directors is incorporated in this Item 6 by reference.
PPM America serves as the investment advisor to JNL. Pursuant to a certain
Discretionary Investment Management Agreement between JNL and PPM America dated
as of April 14, 1993, a copy of which is annexed hereto as Exhibit 4, PPM
America may vote JNL's shares of Common Stock and may make investment decisions
regarding such shares of Common Stock, including decisions to dispose of all or
some of the shares of Common Stock.
Pursuant to the Plan, the Issuer entered into the New Bucyrus Registration
Rights Agreement (as defined in Section
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1.094 of the Plan), which provides for certain registration and related rights
of the holders of an aggregate of 1,000,000 or more shares of the Common Stock
distributed pursuant to the Plan. Such agreement is annexed as Exhibit 5 hereto.
JNL is entitled to rights under such agreement by reason of being the holder of
an aggregate of more than 1,000,000 shares of the Common Stock distributed
pursuant to the Plan.
As described in Item 3 hereof, pursuant to Section 3.09(b)(ii) of the Plan,
JNL may be entitled from time to time after the date of this filing to acquire
additional shares of Common Stock.
Except as set forth herein, neither JNL, PPM America, Brooke, PPM Ltd. and
Prudential, nor to the best of their knowledge, any of the directors or
executive officers of any of them, have any other contracts, arrangements,
understandings or relationships with respect to shares of Common Stock or any
other securities of the Issuer.
Item 7. Material to be Filed as Exhibits.
(1) Second Amended Joint Plan of Reorganization of B-E
Holdings, Inc. and Bucyrus-Erie Company dated September
19, 1994, as modified December 1, 1994, and as
confirmed by the United States Bankruptcy Court,
Eastern District of Wisconsin;
(2) Restated Bylaws of Bucyrus-Erie Company;
(3) Certificate of Merger of B-E Holdings, Inc. into
Bucyrus- Erie Company, with attached Restated
Certificate of Incorporation of Bucyrus-Erie Company;
(4) Discretionary Investment Management Agreement between
JNL and PPM America dated April 14, 1994; and
(5) Registration Rights Agreement dated as of December 14,
1994.
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Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: December 23, 1994
JACKSON NATIONAL LIFE
INSURANCE COMPANY
By: /s/ F. John Stark, III
-------------------------
Name: F. John Stark, III
Title: Attorney-in-Fact
PPM AMERICA, INC.
By: /s/ F. John Stark, III
-------------------------
Name: F. John Stark, III
Title: Senior Vice President
and General Counsel
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SCHEDULE I
EXECUTIVE OFFICERS AND DIRECTORS
OF JACKSON NATIONAL LIFE INSURANCE COMPANY,
BROOKE LIFE INSURANCE COMPANY, PPM AMERICA, INC.
PRUDENTIAL PORTFOLIO MANAGERS LIMITED AND
PRUDENTIAL CORPORATION PLC
A complete list of the directors and executive officers of Jackson National
Life Insurance Company, Brooke Life Insurance Company, PPM America, Inc.,
Prudential Portfolio Managers Limited and Prudential Corporation plc, their
business addresses, their present principal occupations or employments and the
name, principal business and address of any corporation or other organization in
which such employment is conducted and their citizenships is set forth on the
following pages.
The following defined terms are used throughout the information provided
herein with respect to the executive officers and directors of Jackson National
Life Insurance Company, Brooke Life Insurance Company, PPM America, Inc.,
Prudential Portfolio Managers Limited and Prudential Corporation plc:
Jackson National Life Insurance Company ("JNL")
Brooke Life Insurance Company ("Brooke")
PPM America, Inc. ("PPM America")
Prudential Portfolio Managers Limited ("PPM Ltd.")
Prudential Corporation plc ("Prudential")
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JACKSON NATIONAL LIFE INSURANCE COMPANY
The executive officers and directors of JNL are as follows:
Robert Saltzman, Director, President and Chief Executive Officer
John Alfred Knutson, Director, Chief Operating Officer and Senior Vice President
Guy Vincent Barker, Chief Actuary and Senior Vice President
Alan Ronald Cook, Senior Vice President
Paul (Pete) B. Pheffer, Senior Vice President, Chief Financial Officer and
Treasurer
Andrew Hopping, Senior Vice President
William Alan Gray, Senior Vice President
Michael George Newmarch, Director and Chairman
Thomas J. Meyer, Secretary, General Counsel and Vice President
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JACKSON NATIONAL LIFE INSURANCE COMPANY
Responses to Sections (a), (b), (c) and (f) of Item 2:
<TABLE>
<S> <C>
(a) Name and Position: Robert Saltzman, President and
Chief Executive Officer
(b) Business Address: 5901 Executive Drive
Lansing, Michigan 48911
(c) Present Principal Occupation President and Chief Executive Officer of JNL; President of Brooke;
or Employment and the Name, President of Brooke Holdings, Inc., Chrissy
Principal Business and Address Corporation, Jackson National Life
of any Corporation or other Insurance Company of Michigan
Organization in which such
Employment is conducted:
(f) Citizenship: U.S.A.
******************************************************************************
(a) Name and Position: John Alfred Knutson, Chief Operating Officer and
Senior Vice President
(b) Business Address: 5901 Executive Drive
Lansing, Michigan 48911
(c) Present Principal Occupation Senior Vice President and Chief Operating Officer
or Employment and the Name, of JNL, Brooke, Brooke Holdings, Inc., Chrissy
Principal Business and Address Corporation, Jackson National Life Insurance
of any Corporation or other Company of Michigan
Organization in which such
Employment is conducted: President of Jackson National Capital
Management Funds and Jackson National
Financial Services, Inc., and JNL of Argentina
</TABLE>
3
<PAGE>
<TABLE>
<S> <C>
(f) Citizenship: U.S.A.
******************************************************************************
(a) Name and Position: Guy Vincent Barker, Chief Actuary and Senior
Vice President
(b) Business Address: 5901 Executive Drive
Lansing, Michigan 48911
(c) Present Principal Occupation Chief Actuary and Senior Vice President of
or Employment and the Name, JNL, Brooke, Brooke Holdings, Inc., Chrissy
Principal Business and Address Corporation, Jackson National Life Insurance
of any Corporation or other Company of Michigan
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Alan Ronald Cook, Senior Vice President
(b) Business Address: 5901 Executive Drive
Lansing, Michigan 48911
(c) Present Principal Occupation Senior Vice President of JNL, Jackson National
or Employment and the Name, Life Insurance Company of Michigan
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Paul (Pete) B. Pheffer, Chief Financial Officer,
Treasurer and Senior Vice President
</TABLE>
4
<PAGE>
<TABLE>
<S> <C>
(b) Business Address: 5901 Executive Drive
Lansing, Michigan 48911
(c) Present Principal Occupation Chief Financial Officer, Treasurer and Senior
or Employment and the Name, Vice President of JNL, Brooke, Brooke Holdings,
Principal Business and Address Inc., Chrissy Corporation, Jackson National Life
of any Corporation or other Insurance Company of Michigan
Organization in which such
Employment is conducted:
(f) Citizenship: U.S.A.
******************************************************************************
(a) Name and Position: Andrew Hopping, Senior Vice President
(b) Business Address: 5901 Executive Drive
Lansing, Michigan 48911
(c) Present Principal Occupation Senior Vice President of JNL, Jackson National
or Employment and the Name, Life Insurance Company of Michigan
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.S.A.
******************************************************************************
(a) Name and Position: William Alan Gray, Senior Vice President
(b) Business Address: 5901 Executive Drive
Lansing, Michigan 48911
(c) Present Principal Occupation Senior Vice President of JNL, Brooke, Brooke
or Employment and the Name, Holdings, Inc., Chrissy Corporation, Jackson
Principal Business and Address National Life Insurance Company of Michigan,
of any Corporation or other and Jackson National Financial Services, Inc.
</TABLE>
5
<PAGE>
Organization in which such
Employment is conducted:
<TABLE>
<S> <C>
(f) Citizenship: U.S.A.
******************************************************************************
(a) Name and Position: Thomas J. Meyer, Secretary, General Counsel
and Vice President
(b) Business Address: 5901 Executive Drive
Lansing, Michigan 48911
(c) Present Principal Occupation Secretary, General Counsel and Vice President
or Employment and the Name, for JNL, Brooke, Brooke Holdings, Inc., Chrissy
Principal Business and Address Corporation, Jackson National Life Insurance
of any Corporation or other Company of Michigan, Jackson National
Organization in which such Financial Services, Inc.
Employment is conducted:
Secretary for Jackson National Capital
Management Funds
(f) Citizenship: U.S.A.
******************************************************************************
(d) Name and Position: Michael (Mick) George Newmarch,
Director and Chairman
(e) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(f) Present Principal Occupation Director and Chairman of JNL;
or Employment and the Name, Chairman and Director of PPM
Principal Business and Address Ltd.; Group Chief Executive and
of any Corporation or other Director of Prudential
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
</TABLE>
6
<PAGE>
BROOKE LIFE INSURANCE COMPANY
The directors of Brooke are as follows:
Robert Saltzman (see previous description)
John Alfred Knutson (see previous description)
Guy Vincent Barker (see previous description)
The executive officers of Brooke are the same individuals as
the executive officers of JNL other than Alan Ronald Cook and
Andrew Hopping. (Please refer to the previous pages with
respect to those individuals.)
7
<PAGE>
PPM AMERICA, INC.
The executive officers and directors of PPM America are as follows:
Russell W. Swansen, President and Director
F. John Stark, Senior Vice President, Secretary, General Counsel and Director
Bruce Gorchow, Senior Vice President and Director
Richard Brody, Senior Vice President and Director
Kenneth Schlemmel, Senior Vice President
Hugh Jenkins, Chairman and Director
Andrew Jenkinson, Director
Rodney Dennis, Director
8
<PAGE>
PPM AMERICA, INC.
Responses to Sections (a), (b), (c) and (f) of Item 2:
<TABLE>
<S> <C>
(a) Name and Position: Russell W. Swansen, President and Director
(b) Business Address: 225 West Wacker Drive, Suite 1200
Chicago, Illinois 60606
(c) Present Principal Occupation President and Director of PPM America
or Employment and the Name,
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.S.A.
******************************************************************************
(a) Name and Position: F. John Stark, Senior Vice President, General
Counsel, Secretary and Director
(b) Business Address: 225 West Wacker Drive, Suite 1200
Chicago, Illinois 60606
(c) Present Principal Occupation Senior Vice President, General Counsel,
or Employment and the Name, Secretary and Director of PPM America
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.S.A.
</TABLE>
9
<PAGE>
******************************************************************************
<TABLE>
<S> <C>
(a) Name and Position: Bruce Gorchow, Senior Vice President and
Director
(b) Business Address: 225 West Wacker Drive, Suite 1200
Chicago, Illinois 60606
(c) Present Principal Occupation Senior Vice President and Director of
or Employment and the Name, PPM America
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.S.A.
******************************************************************************
(a) Name and Position: Richard Brody, Senior Vice President and
Director
(b) Business Address: 225 West Wacker Drive, Suite 1200
Chicago, Illinois 60606
(c) Present Principal Occupation Senior Vice President and Director of
or Employment and the Name, PPM America
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.S.A
******************************************************************************
(a) Name and Position: Kenneth Schlemmel, Senior Vice President
(b) Business Address: 225 West Wacker Drive, Suite 1200
</TABLE>
10
<PAGE>
<TABLE>
<S> <C>
Chicago, Illinois 60606
(c) Present Principal Occupation Senior Vice President of PPM America
or Employment and the Name,
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.S.A.
******************************************************************************
(a) Name and Position: Hugh Jenkins, Chairman and Director
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Chairman and Director of PPM America; Chief
or Employment and the Name, Executive, Director and Deputy Chairman of
Principal Business and Address PPM Ltd. at 142 Holborn Bars, London, EC1N
of any Corporation or other 2NH, England; Director of Prudential at same
Organization in which such address as PPM Ltd.
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Andrew Jenkinson, Director
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Director of PPM America; Finance Director
or Employment and the Name, and Director of PPM Ltd. at 142 Holborn Bars,
Principal Business and Address London, EC1N 2NH, England
of any Corporation or other
Organization in which such
</TABLE>
11
<PAGE>
Employment is conducted:
<TABLE>
<S> <C>
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Rodney Dennis, Director
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Director of PPM America; Director and
or Employment and the Name, Managing Director of PPM Securities at
Principal Business and Address 142 Holborn Bars, London, EC1N 2NH, England
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
</TABLE>
12
<PAGE>
PRUDENTIAL PORTFOLIO MANAGERS LIMITED
The executive officers and directors of PPM Ltd. are as follows:
Michael (Mick) George Newmarch, Chairman and Director
Hugh Jenkins, Chief Executive, Deputy Chairman and Director
Huw Jones, Director and Corporate Finance Director
Rodney Dennis, Director and Deputy Managing Director - PPM Securities
Julian Gell, Director and Personnel Director
Lorraine Baldry, Director and Managing Director - Property Division
Andrew Jenkinson, Director and Finance Director
Michael Denham, Director and Managing Director - PPM Pensions Ltd.
David Hanson, Director and Administrative Director
Paul Brooks, Director and Managing Director, Venture Managers
Christopher Cheetham, Director and Investment Strategy Director
13
<PAGE>
PRUDENTIAL PORTFOLIO MANAGERS LIMITED
Responses to Sections (a), (b), (c) and (f) of Item 2:
<TABLE>
<S> <C>
(a) Name and Position: Mick Newmarch, Chairman and Director
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Chairman and Director of PPM Ltd.;
or Employment and the Name, Group Chief Executive and Director of Prudential
Principal Business and Address (same address as PPM Ltd.)
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Hugh Jenkins, Chief Executive Officer. Director,
and Deputy Chairman
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Chief Executive, Director and Deputy Chairman
or Employment and the Name, of PPM Ltd.; Chairman and Director of PPM
Principal Business and Address America at 225 West Wacker Drive, Suite 1200,
of any Corporation or other Chicago, IL 60606; Director of Prudential at
Organization in which such same address as PPM Ltd.
Employment is conducted:
(f) Citizenship: U.K.
</TABLE>
14
<PAGE>
******************************************************************************
<TABLE>
<S> <C>
(a) Name and Position: Huw Jones, Corporate Finance Director and
Director
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Director and Corporate Finance Director of PPM
or Employment and the Name, Ltd.
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K
******************************************************************************
(a) Name and Position: Rodney Dennis, Director and Deputy Managing
Director of PPM Securities
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Director of PPM Ltd. and Deputy Managing
or Employment and the Name, Director of PPM Securities at same address as
Principal Business and Address PPM Ltd.; Director of PPM America at 225 West
of any Corporation or other Wacker Drive, Suite 1200, Chicago, IL 60606
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Julian Gell, Director and Personnel Director
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
</TABLE>
15
<PAGE>
<TABLE>
<S> <C>
(c) Present Principal Occupation Director and Personnel Director of PPM Ltd.
or Employment and the Name,
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Lorraine Baldry, Director and Managing Director
Property Division
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Director and Managing Director of
or Employment and the Name, Property Division of PPM Ltd.
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Andrew Jenkinson, Director and Finance Director
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Director and Finance Director of PPM Ltd.
or Employment and the Name, Director of PPM America at 225 West Wacker
Principal Business and Address Drive, Suite 1200, Chicago, IL 60606
of any Corporation or other
Organization in which such
Employment is conducted:
</TABLE>
16
<PAGE>
<TABLE>
<S> <C>
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Michael Denham, Director and Managing
Director - PPM Pensions Ltd.
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Director of PPM Ltd. and Managing Director -
or Employment and the Name, PPM Pensions Ltd.
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: David Hanson, Director and Administration
Director
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Director and Administration Director of PPM
or Employment and the Name, Ltd.
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Paul Brooks, Director and Managing Director,
Venture Managers
</TABLE>
17
<PAGE>
<TABLE>
<S> <C>
(b) Business Address: 1 Waterhouse Square
Holborn Bars
London, EC1N 2ST, England
(c) Present Principal Occupation Director of PPM Ltd. and Managing Director of
or Employment and the Name, Prudential Venture Managers at 1 Waterhouse
Principal Business and Address Square, Holborn Bars, London, EC1N 2ST, England
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Christopher Cheetham, Director and Investment
Strategy Director
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Director and Investment Strategy Director of
or Employment and the Name, PPM Ltd.
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
</TABLE>
18
<PAGE>
PRUDENTIAL CORPORATION PLC
The executive officers and directors of Prudential are as follows:
Sir Brian Corby, Chairman and Director
Michael Abrahams, Deputy Chairman and Director
Michael (Mick) George Newmarch, Group Chief Executive and Director
Keith Bedell-Pearce, Director, Chief Executive - Prudential Financial Services
Peter Davis, Director
Niall FitzGerald, Director
Sir Trevor Holdsworth, Director
Sir Martin Jacomb, Director
Hugh Jenkins, Director, Chief Executive - Prudential Portfolio Managers
John Maxwell, Director, Corporate Development Director
Jim Sutcliffe, Director, Managing Director, Home Service Division
Andrew Teare, Director
19
<PAGE>
PRUDENTIAL CORPORATION PLC
Responses to Sections (a), (b), (c) and (f) of Item 2:
<TABLE>
<S> <C>
(a) Name and Position: Sir Brian Corby, Chairman and Director
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Chairman and Director of Prudential
or Employment and the Name,
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Michael Abrahams, Deputy Chairman and
Director
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Deputy Chairman and Director of Prudential
or Employment and the Name,
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
</TABLE>
20
<PAGE>
<TABLE>
<S> <C>
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Peter Davis, Director
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Director of Prudential
or Employment and the Name,
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Niall FitzGerald, Director
(b) Business Address: Unilever plc
Blackfriars,
PO Box 68
London, EC4P 4BQ, England
(c) Present Principal Occupation Director of Prudential; Chairman - Unilever plc,
or Employment and the Name, Blackfriars, PO Box 68, London, EC4P 4BQ, England
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: Ireland
******************************************************************************
</TABLE>
21
<PAGE>
<TABLE>
<S> <C>
(a) Name and Position: Sir Trevor Holdsworth, Director
(b) Business Address: National Power
Senator House
85 Queen Victoria Street
London, EC4V 4DP, England
(c) Present Principal Occupation Director of Prudential; Chairman - National
or Employment and the Name, Power, Senator House, 85 Queen Victoria Street,
Principal Business and Address London, EC4V 4DP, England
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Sir Martin Jacomb, Director
(b) Business Address: Postel Investment Management Limited
Standon House
21 Mansell Street
London, E1 8AA, England
(c) Present Principal Occupation Director of Prudential; Chairman - Postel
or Employment and the Name, Investment Management Limited, Standon House,
Principal Business and Address 21 Mansell Street, London, E1 8AA, England
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Andrew Teare, Director
(b) Business Address: Group Chief Executive
</TABLE>
22
<PAGE>
<TABLE>
<S> <C>
English China Clays plc
125 Wood Street
London, EC2V 7AQ, England
(c) Present Principal Occupation Director of Prudential; Group Chief Executive -
or Employment and the Name, English China Clays plc, 125 Wood Street,
Principal Business and Address London, EC2V 7AQ, England
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Michael (Mick) George Newmarch, Group Chief
Executive and Director
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Group Chief Executive and Director of
or Employment and the Name, Prudential; Chairman and Director PPM Ltd. at
Principal Business and Address same address as Prudential
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Keith Bedell-Pearce, Director
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
</TABLE>
23
<PAGE>
<TABLE>
<S> <C>
(c) Present Principal Occupation Director of Prudential; Chief Executive of
or Employment and the Name, Prudential Financial Services at same address
Principal Business and Address as Prudential
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Hugh Jenkins, Director
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Director of Prudential; Chief Executive, Director
or Employment and the Name, and Deputy Chairman of PPM Ltd. at same
Principal Business and Address address as Prudential; Chairman and Director
of any Corporation or other of PPM America at 225 West Wacker Drive,
Organization in which such Suite 1200, Chicago, IL 60606
Employment is conducted:
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: John Maxwell, Director and Corporate
Development Director
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Director and Corporate Development Director of
or Employment and the Name, Prudential
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
</TABLE>
24
<PAGE>
<TABLE>
<S> <C>
(f) Citizenship: U.K.
******************************************************************************
(a) Name and Position: Jim Sutcliffe, Director, Managing Director of
Home Service Division
(b) Business Address: 142 Holborn Bars
London, EC1N 2NH, England
(c) Present Principal Occupation Director of Prudential; Managing Director of
or Employment and the Name, Home Service at same address
Principal Business and Address
of any Corporation or other
Organization in which such
Employment is conducted:
(f) Citizenship: U.K.
</TABLE>
25
<PAGE>
EXHIBITS
The following items are attached hereto as exhibits pursuant to Item 7 of the
Schedule 13D. These exhibits have been copied from the originals for the purpose
of this EDGAR filing. The original versions of all exhibits were duly executed.
(1) Second Amended Joint Plan of Reorganization of B-E
Holdings, Inc. and Bucyrus-Erie Company dated
September 19, 1994, as modified December 1, 1994, and
as confirmed by the United States Bankruptcy Court,
Eastern District of Wisconsin (the"Plan");
Exhibits to the Plan were filed with the Securities
and Exchange Commission by the Issuer in the
Issuer's 8-K Report dated December 1, 1994 as
exhibits 2.1 thereto; such exhibits are incorporated
herein.
(2) Restated Bylaws of Bucyrus-Erie Company;
(3) Certificate of Merger of B-E Holdings, Inc. into
Bucyrus-Erie Company, with attached Restated
Certificate of Incorporation of Bucyrus-Erie Company;
(4) Discretionary Investment Management Agreement between
JNL and PPM America dated April 14, 1994; and
(5) Registration Rights Agreement dated as of December 14,
1994.
<PAGE>
CONFIRMED COPY
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF WISCONSIN
- ------------------------------------------------------------------x
In re : Chapter 11 Case
Nos. 94-20786-RAE
B-E HOLDINGS, INC. and : 94-20787-RAE
BUCYRUS-ERIE COMPANY,
: Jointly Administered
Debtors.
:
- ------------------------------------------------------------------x
SECOND AMENDED JOINT PLAN OF REORGANIZATION
OF B-E HOLDINGS, INC. AND BUCYRUS-ERIE COMPANY
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
AS MODIFIED DECEMBER 1, 1994
MILBANK, TWEED, HADLEY & McCLOY
John G. Gellene
1 Chase Manhattan Plaza
New York, New York 10005
(212) 530-5000
HOWARD, SOLOCHEK & WEBER, S.C.
Albert Solochek
324 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 272-0760
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS.................................................................. 1
ARTICLE II
TREATMENT OF ADMINISTRATIVE AND PRIORITY TAX CLAIMS.......................... 10
A. Administrative Claims............................................... 10
B. Priority Tax Claims................................................. 10
ARTICLE III
CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS AND EQUITY INTERESTS....... 10
A. Summary............................................................. 10
B. Classification and Treatment........................................ 11
C. Rights of Debtors Concerning Unimpaired Claims...................... 17
D. Automatic Amendment to Plan Upon Rejection of Plan by Class 9....... 17
ARTICLE IV
ACCEPTANCE OR REJECTION OF THE PLAN.......................................... 17
A. Voting Classes...................................................... 17
B. Acceptance by Impaired Classes...................................... 18
C. Presumed Acceptance of Plan......................................... 18
D. Confirmation Without Acceptance by All Impaired Classes............. 18
ARTICLE V
MEANS FOR IMPLEMENTATION OF THE PLAN......................................... 18
A. Continued Corporate Existence and Vesting of Assets in the
Reorganized Debtor.................................................. 18
B. Transactions on the Effective Date.................................. 18
C. Corporate Governance, Directors and Officers and Corporate Action... 19
D. Professional Fee Claims............................................. 21
E. Sources of Cash for Plan Distribution............................... 21
ARTICLE VI
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES........................ 22
A. Assumption of Executory Contracts and Unexpired Leases.............. 22
B. Claims Based on Rejection of Executory Contracts or Unexpired
Leases.............................................................. 22
C. Cure of Defaults for Executory Contracts and Unexpired Leases
Assumed............................................................. 22
D. Indemnification of Directors, Officers and Employees................ 22
E. Compensation and Benefit Programs................................... 23
ARTICLE VII
PROVISIONS GOVERNING DISTRIBUTIONS........................................... 23
A. Distributions for Claims Allowed as of the Effective Date........... 23
B. Distributions by Disbursing Agents.................................. 23
C. Delivery and Distributions and Undeliverable or Unclaimed
Distributions....................................................... 24
D. Distribution Record Date............................................ 24
E. Timing and Calculation of Amounts to be Distributed................. 25
i
<PAGE>
Page
----
F. Distribution and Fractional Securities.............................. 25
G. Setoffs............................................................. 25
H. Surrender of Canceled Instruments or Securities..................... 25
I. Impaired Debt Securities............................................ 25
J. Holdings Stock Certificates......................................... 26
K. Failure to Surrender Canceled Impaired Debt Securities or Canceled
Holdings Stock Certificates......................................... 26
L. Lost, Stolen, Mutilated or Destroyed Impaired Debt Securities or
Stock Certificates.................................................. 26
M. Cancellation of Existing Indentures and Bucyrus South Street Lease.. 26
N. Release of Indenture Trustee Charging Liens......................... 27
O. Allocation of Distributions to Holders of Allowed Claims............ 27
ARTICLE VIII
PROCEDURES FOR RESOLVING DISPUTED CLAIMS..................................... 27
A. Prosecution of Objections to Claims................................. 27
B. Estimation of Claims................................................ 27
C. Payments and Distributions on Disputed Claims....................... 28
ARTICLE IX
RELEASE AND RELATED PROVISIONS............................................... 28
A. Subordination....................................................... 28
B. Limited Release of Directors, Officers and Employees................ 28
C. Release in Respect of Becor Transactions and Certain Other Matters.. 29
D. Preservation of Rights of Action.................................... 29
ARTICLE X
REGISTRATION AND RELATED RIGHTS.............................................. 30
ARTICLE XI
CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN............ 31
A. Conditions Precedent to Confirmation................................ 31
B. Conditions Precedent to Consummation................................ 31
C. Waiver of Conditions................................................ 31
ARTICLE XII
RETENTION OF JURISDICTION.................................................... 31
ARTICLE XIII
MISCELLANEOUS PROVISIONS..................................................... 32
A. Dissolution of Committee............................................ 32
B. Payment of Statutory Fees........................................... 32
C. No Interest......................................................... 32
D. Discharge of Debtors................................................ 32
E. Injunction.......................................................... 33
F. Modification of Plan................................................ 34
G. Revocation of Plan.................................................. 34
ii
<PAGE>
Page
----
H. Rules of Interpretation............................................. 34
I. Computation of Time................................................. 34
J. Governing Law....................................................... 34
K. Severability........................................................ 34
L. Successors and Assigns.............................................. 36
iii
<PAGE>
EXHIBITS
A - Amended Bylaws
B - Amended Certificate of Incorporation
C - Summary of New Bucyrus Registration Rights Agreement
D - New South Street Term Sheet
E - Merger Agreement
iv
<PAGE>
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF WISCONSIN
- ------------------------------------------------------------x
In re : Chapter 11 Case
Nos. 94-20786-RAE
B-E HOLDINGS, INC. and : 94-20787-RAE
BUCYRUS-ERIE COMPANY,
: Jointly Administered
Debtors.
:
- ------------------------------------------------------------x
SECOND AMENDED JOINT PLAN OF REORGANIZATION
OF B-E HOLDINGS, INC. AND BUCYRUS-ERIE COMPANY
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
AS MODIFIED DECEMBER 1, 1994
B-E Holdings, Inc. and Bucyrus-Erie Company hereby propose the following
Second Amended Joint Plan of Reorganization pursuant to section 1121(a) of the
Bankruptcy Code.
ARTICLE I
DEFINITIONS
As used in the Plan the following terms shall have the meanings specified
below:
1.001. "Administrative Claim" means a Claim for costs and expenses of
administration allowed under section 503(b), 507(b) or 1114(e)(2) of the
Bankruptcy Code, including:
(a) the actual and necessary costs and expenses incurred after the
Petition Date of preserving the Estate and operating the business of a
Debtor (such as wages, salaries or commissions for services and payments
for goods and other services and leased premises), any indebtedness or
obligations incurred or assumed by the Debtors or the Debtors in Possession
in connection with the conduct of their businesses or for the acquisition
or lease of property or for the procurement of services, including, without
limitation, obligations for borrowings under the Post-Petition Financing
Agreement, any costs and expenses of the Debtors for the management,
preservation, sale or other disposition of any assets, the administration,
prosecution or defense of claims by or against the Debtors and for
distributions under the Plan, and shall also include the Claims for
Indenture Trustees for fees and expenses to the extent contemplated by
Section 7.19 of the Plan;
(b) compensation for legal, financial advisory, accounting and other
services and reimbursement of expenses awarded or allowed under section
330(a) or 331 of the Bankruptcy Code; and
(c) all fees and charges assessed against the Estate of a Debtor under
chapter 123 of title 28, United States Code, 28 U.S.C. ss.ss. 1911-1930.
1.002. "Allowed Claim" or "Allowed Unsecured Claim" means for the purpose
of receiving distributions or other treatment pursuant to the Plan, but subject
in all events to the provisions of Section 3.22:
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(a) a Claim that has been scheduled by a Debtor in its schedule of
liabilities as other than disputed, contingent or unliquidated and as to
which a Debtor or other party in interest has not Filed an objection by the
Effective Date;
(b) a Claim that either is not a Disputed Claim or has been allowed by
a Final Order;
(c) a Claim that is allowed: (i) in any stipulation of amount and
nature of Claim executed prior to the Confirmation Date and approved by the
Bankruptcy Court; (ii) in any stipulation with a Debtor of amount and
nature of Claim executed on or after the Confirmation Date; or (iii) in any
contract, instrument, indenture or other agreement entered into or assumed
in connection with the Plan;
(d) a Claim relating to a rejected executory contract or unexpired
lease that either (i) is not a Disputed Claim or (ii) has been allowed by a
Final Order, in either case only if a proof of Claim has been Filed by the
Bar Date or has otherwise been deemed timely Filed under applicable law; or
(e) a Claim that is allowed pursuant to the terms of this Plan.
1.003. "Allowed Equity Interest" means an Equity Interest in Holdings
Stock: (a) as of the Distribution Record Date as registered in the stock
register that is maintained by or on behalf of Holdings and (b) (i) is not a
Disputed Equity Interest or (ii) has been allowed by a Final Order.
1.004. "Allowed . . . Claim" means an Allowed Claim in the particular Class
or category described.
1.005. "Amended Bylaws" means the Restated Bylaws of the Reorganized
Debtor, which shall be substantially in the form set forth in Exhibit A.
1.006. "Amended Certificate of Incorporation" means the Restated
Certificate of Incorporation of the Reorganized Debtor, to be filed pursuant to
the Merger Agreement as described in Section 5.03 of the Plan, which shall be
substantially in the form of Exhibit B.
1.007. "Ballots" means the ballots accompanying the Disclosure Statement
upon which Holders of Impaired Claims and Impaired Equity Interests shall
indicate their acceptance or rejection of the Plan in accordance with the Voting
Instructions.
1.008. "Bankruptcy Code" means title 11 of the United States Code, as now
in effect or hereafter amended.
1.009. "Bankruptcy Court" means the United States Bankruptcy Court having
jurisdiction over the Chapter 11 Cases.
1.010. "Bankruptcy Rules" means the Federal Rules of Bankruptcy Procedure,
as amended from time to time, as applicable to the Chapter 11 Cases, promulgated
under 28 U.S.C. ss. 2075 and the General and Local Rules, if any, of the
Bankruptcy Court.
1.011. "Bar Date" means the bar date for Filing of proofs of claim with
respect to executory contracts and unexpired leases which are rejected pursuant
to this Plan or otherwise pursuant to section 365 of the Bankruptcy Code.
1.012. "Becor Transactions" means the acquisition by Holdings of Becor
Western, Inc. pursuant to the Agreement and Plan of Merger dated as of July 28,
1987, as amended, the exchange offer of Bucyrus 10% Senior Notes consummated on
January 28, 1989, the issuance of Bucyrus Resettable Senior Notes, the issuance
of Bucyrus South Street Notes, consummation of the Bucyrus South Street Lease
and certain other related transactions.
1.013. "Bell Helicopter" means Bell Helicopter Textron Inc.
1.014. "Bell Helicopter Claim" means the claims of Bell Helicopter asserted
in or related to the civil action captioned Bell Helicopter Textron Inc. v. Brad
Foote Gear Works, Inc., BWC Gear, Inc., and Bucyrus-Erie Company pending in the
District Court of Tarrant County, Texas, 348th Judicial District.
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1.015. "Beneficial Holder" means the entity holding the beneficial interest
in a Claim or Equity Interest.
1.016. "Broad Street Fund" means Broad Street Investment Fund I, L.P.
1.017. "Bucyrus" means Bucyrus-Erie Company, a Delaware corporation.
1.018. "Bucyrus 10% Senior Notes" means the 10% Senior Notes due 1996 of
Bucyrus issued under the Bucyrus 10% Senior Note Indenture.
1.019. "Bucyrus 10% Senior Note Indenture" means the Indenture dated as of
January 28, 1989, between Bucyrus and First Wisconsin Trust Company, now known
as Firstar Trust Company, as trustee.
1.020. "Bucyrus Common Stock" means the common stock, par value $.01 per
share, of Bucyrus.
1.021. "Bucyrus General Unsecured Claims" means, collectively, all
unsecured Claims against Bucyrus, including Trade Claims, but excluding claims
of Holders of Bucyrus 10% Senior Notes, Bucyrus Sinking Fund Debentures, Bucyrus
Resettable Senior Notes, Bucyrus South Street Notes and Bucyrus South Street
Lease Claims.
1.022. "Bucyrus Lease Trustee" means State Street Bank and Trust Company of
Connecticut, National Association, as trustee under the Trust Agreement dated as
of July 24, 1992 establishing the SS Equipment Trust No. 1.
1.023. "Bucyrus Priority Claims" means any Claims against Bucyrus accorded
the priority and right of payment under section 507(a) of the Bankruptcy Code,
other than a Priority Tax Claim or on Administrative Claim.
1.024. "Bucyrus Resettable Senior Notes" means the Resettable Senior Notes
due January 1, 1996 of Bucyrus issued under the Bucyrus Resettable Senior Note
Indenture.
1.025. "Bucyrus Resettable Senior Note Indenture" means the Indenture dated
as of June 25, 1990, between Bucyrus and First Wisconsin Trust Company, as
trustee, under which First Trust, National Association acts as successor
trustee.
1.026. "Bucyrus Secured Claims" means, collectively, all Allowed Secured
Claims against Bucyrus held by any entity other than the South Street Claims.
1.027. "Bucyrus Sinking Fund Debentures" means the 9% Sinking Fund
Debentures due 1999 of Bucyrus issued under the Bucyrus Sinking Fund Debenture
Indenture.
1.028. "Bucyrus Sinking Fund Debenture Indenture" means the Indenture dated
as of June 1, 1974 between Bucyrus and Chemical Bank as successor by merger to
Manufacturers Hanover Trust Company, as trustee.
1.029. "Bucyrus South Street Lease" means, collectively, (i) the
Participation Agreement dated as of July 24, 1992 among Bucyrus, Holdings, the
South Street Funds and the Bucyrus Lease Trustee, (ii) the Purchase Agreement
and Assignment dated as of July 24, 1992 between Bucyrus and the Bucyrus Lease
Trustee, (iii) the Bill of Sale between Bucyrus and the Bucyrus Lease Trustee
dated July 24, 1992, and (iv) the Lease and Agreement dated as of July 24, 1992
between Bucyrus and the Bucyrus Lease Trustee.
1.030. "Bucyrus South Street Lease Claims" means the Claims of the lessor
and the owner participants under the Bucyrus South Street Lease.
1.031. "Bucyrus South Street Notes" means the Series A 10.65% Senior
Secured Notes due July 1, 1995 of Bucyrus and the Series B 16.5% Senior Secured
Notes due January 1, 1996 of Bucyrus issued under the Bucyrus South Street Note
Indenture.
1.032. "Bucyrus South Street Note Claims" means the Claims of Holders of
Bucyrus South Street Notes under (i) the Securities Purchase Agreement dated as
of July 24, 1992 among
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Bucyrus, Holdings and the South Street Funds, (ii) the Indenture dated as of
July 24, 1992 among Bucyrus, Holdings and the South Street Note Trustee and
(iii) the Bucyrus South Street Notes.
1.033. "Bucyrus South Street Note Indenture" means the Indenture dated as
of July 24, 1992 between Bucyrus, Holdings and the South Street Note Trustee.
1.034. "Business Day" means any day, other than a Saturday, Sunday or
"legal holiday" (as defined in Bankruptcy Rule 9006(a)).
1.035. "Cash" means cash and cash equivalents.
1.036. "Causes of Action" means all claims (as defined in section 101(5) of
the Bankruptcy Code), actions, causes of action, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages or
judgments, whether known or unknown and whether asserted or unasserted.
1.037. "Chapter 11 Cases" means the cases under chapter 11 of the
Bankruptcy Code, commenced by the Debtors in the Bankruptcy Court.
1.038. "Claim" means a claim (as defined in section 101(5) of the
Bankruptcy Code) against a Debtor.
1.039. "Class" means a category of Holders of Claims or Equity Interests as
set forth in Article III of the Plan pursuant to section 1123(a)(1) of the
Bankruptcy Code.
1.040. "Confirmation" means the entry of the Confirmation Order by the
Bankruptcy Court in its docket, within the meaning of Bankruptcy Rules 5003 and
9021.
1.041. "Confirmation Date" means the date upon which Confirmation occurs.
1.042. "Confirmation Order" means the order of the Bankruptcy Court
confirming the Plan pursuant to section 1129 of the Bankruptcy Code.
1.043. "Consummation" means the occurrence of the Effective Date.
1.044. "Creditor" means any Holder of a Claim.
1.045. "Creditors Committee" means the statutory committee of unsecured
creditors appointed in the Chapter 11 Case of Bucyrus pursuant to section 1102
of the Bankruptcy Code.
1.046. "Debt Securities Indentures" means the Bucyrus 10% Senior Note
Indenture, the Bucyrus Sinking Fund Debenture Indenture, the Bucyrus Resettable
Senior Note Indenture, and the Holdings Senior Debenture Indenture, and the
Bucyrus South Street Note Indenture.
1.047. "Debtors" means Bucyrus and Holdings, debtors in the Chapter 11
Cases.
1.048. "Debtors in Possession" means Bucyrus and Holdings, as debtors in
possession in the Chapter 11 Cases.
1.049. "Delaware General Corporation Law" means title 8 of the Delaware
Code, as now in effect or hereafter amended.
1.050. "Disbursing Agent" means Bucyrus and/or the Indenture Trustees
and/or any third party disbursing agent as Bucyrus and Holdings may employ in
their sole discretion.
1.051. "Disclosure Statement" means the Disclosure Statement And Proxy
Statement-Prospectus dated January 12, 1994, as supplemented by the Disclosure
Supplement and as further amended, supplemented or modified from time to time,
that is prepared and distributed in accordance with sections 1125, 1126(b)
and/or 1145 of the Bankruptcy Code and Bankruptcy Rule 3018.
1.052. "Disclosure Supplement" means the Supplement to the Disclosure
Statement dated September 19, 1994, as approved by the Bankruptcy Court by order
dated September 19, 1994.
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1.053. "Disputed Administrative Claim", "Disputed Claim", "Disputed
Priority Tax Claim" and "Disputed Equity Interest" mean any Administrative
Claim, Claim, Priority Tax Claim or Equity Interest, as the case may be:
(a) listed on the Schedules as unliquidated, disputed or contingent;
or
(b) as to which a Debtor or any party in interest has interposed a
timely objection or request for estimation in accordance with the
Bankruptcy Code and the Bankruptcy Rules or is otherwise disputed by the
Debtor in accordance with applicable law, which objection, request for
estimation or dispute has not been withdrawn or determined by a Final
Order.
1.054. "Distribution Record Date" means the close of business on the
Business Day immediately preceding the Effective Date.
1.055. "Effective Date" means the date selected by the Debtors which is
after the Confirmation Date and within 45 days after the Confirmation Date,
subject to extension for reasonable cause shown, after such notice and hearing
as may be required by the Bankruptcy Court, and on which: (a) no stay of the
Confirmation Order is in effect, and (b) all conditions specified in Article
XI.B of the Plan have been (i) satisfied or (ii) waived pursuant to Section
11.04.
1.056. "Equity Holder" means the Holder of an Equity Interest.
1.057. "Equity Interest" means any equity interest in a Debtor including,
but not limited to, the Bucyrus Common Stock, the Holdings Stock, the Holdings
Stock Options, and the Holdings Old Warrants.
1.058. "Estate" means the estate of a Debtor created by section 541 of the
Bankruptcy Code upon the commencement of the Chapter 11 Cases.
1.059. "File" or "Filed" means file or filed with the Bankruptcy Court in
the Chapter 11 Cases.
1.060. "Final Decree" means the decree contemplated under Bankruptcy Rule
3022.
1.061. "Final Order" means an order or judgment of the Bankruptcy Court, or
other court of competent jurisdiction with respect to the subject matter, which
has not been reversed, stayed, modified or amended, and as to which the time to
appeal or seek certiorari has expired and no appeal or petition for certiorari
has been timely taken, or as to which any appeal that has been taken or any
petition for certiorari that has been or may be filed has been resolved by the
highest court to which the order or judgment was appealed or from which
certiorari was sought.
1.062. "Goldman" means Goldman, Sachs & Co.
1.063. "Holder" means an entity holding an Equity Interest or Claim, and
with respect to a vote on the Plan, means the Beneficial Holder as of the Voting
Record Date or any authorized signatory who has completed and executed a Ballot
or on whose behalf a Master Ballot has been completed and executed in accordance
with the Voting Instructions.
1.064. "Holdings" means B-E Holdings, Inc., a Delaware corporation.
1.065. "Holdings Class C Stock" means the Class C Common Stock, par value
$.01 per share, of Holdings.
1.066. "Holdings Class D Stock" means the Class D Common Stock, par value
$.01 per share, of Holdings.
1.067. "Holdings Class E Stock" means the Class E Common Stock of Holdings
authorized pursuant to the Amended Certificate of Incorporation which shall be
deemed to be issued on the Effective Date.
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1.068. "Holdings General Unsecured Claims" means, collectively, all
unsecured Claims against Holdings, including Trade Claims, but excluding claims
of Holders of Holdings Senior Debentures.
1.069. "Holdings Old Warrants" means the 6,392 warrants, each exercisable
for one share of Class A common stock, par value $.01 per share, of Holdings (i)
which were validly exercised by the Holders thereof in accordance with their
terms and (ii) in respect of which Holdings did not issue shares of Holdings
Class C Stock to the Holders thereof because such Holders on the respective
exercise dates resided in states where registration or exemption permitting the
sale of such stock under state securities law was pending on or prior to the
Voting Record Date.
1.070. "Holdings Priority Claims" means any Claims against Holdings
accorded the priority and right of payment under section 507(a) of the
Bankruptcy Code, other than a Priority Tax Claim or an Administrative Claim.
1.071. "Holdings Secured Claims" means, collectively, all Allowed Secured
Claims against Holdings held by any entity other than the South Street Claims.
1.072. "Holdings Senior Debentures" means the Series A 12 1/2% Senior
Debentures due September 15, 2002 of Holdings issued under the Holdings Senior
Debenture Indenture.
1.073. "Holdings Senior Debenture Indenture" means the Indenture dated as
of December 1, 1987, as amended, between Holdings and Firstar Trust Company, as
trustee.
1.074. "Holdings Series A Preferred Stock" means the Series A 12 1/2%
Cumulative Exchangeable Preferred Stock, par value $.01 per share, of Holdings.
1.075. "Holdings Series B Preferred Stock" means the Series B Convertible
Preferred Stock, par value $.01 per share, of Holdings.
1.076. "Holdings Stock" means the Holdings Series A Preferred Stock, the
Holdings Series B Preferred Stock, the Holdings Class C Stock, the Holdings
Class D Stock and the Holdings Old Warrants.
1.077. "Holdings Stock Options" means the options to purchase shares of
Holdings Class C Stock granted pursuant to the B-E Holdings, Inc. 1988 Stock
Option Plan.
1.078. "Impaired" means, with respect to any Claim, Interest or Class, the
condition or effects described in Section 1124 of the Bankruptcy Code.
1.079. "Impaired Claim" means a Claim classified in an Impaired Class.
1.080. "Impaired Class" means Classes 2A, 2B, 4A, 4B, 4C, 4D, 5, 6, 8, 9,
10, 11, 12 and 13 as set forth in Article III.B. of the Plan.
1.081. "Impaired Debt Securities" means the Bucyrus 10% Senior Notes, the
Bucyrus Sinking Fund Debentures, the Bucyrus Resettable Senior Notes, the
Holdings Senior Debentures, the Bucyrus South Street Notes and the Bucyrus South
Street Lease Claims.
1.082. "Impaired Debt Securities Claims" means Claims classified in Classes
2A, 2B, 4A, 4B, 4C and 6.
1.083. "Impaired Equity Interest" means an Equity Interest classified in an
Impaired Class.
1.084. "Indenture Trustees" means the trustees and successor trustees (if
any) under the Debt Securities Indentures and the Bucyrus Lease Trustee.
1.085. "Indenture Trustee Charging Liens" means any lien or other priority
in payment available to an Indenture Trustee pursuant to an indenture against
distributions made to Holders of Allowed Impaired Debt Securities Claims for
payment of any fees, costs or disbursements incurred by such Indenture Trustee.
1.086. "Intercompany Claim" means any Claim held by Bucyrus against
Holdings net of any Claims held by Holdings against Bucyrus.
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1.087. "Internal Revenue Code" means title 26 of the United States Code, as
now in effect or hereafter amended.
1.088. "Lien" means a lien as defined in section 101(37) of the Bankruptcy
Code.
1.089. "Master Ballots" means the master ballots accompanying the
Disclosure Statement upon which Holders of Impaired Claims and Impaired Equity
Interests shall indicate the acceptance or rejection of the Plan in accordance
with the Voting Instructions.
1.090. "Merger Agreement" means the agreement and plan of merger to be
entered into by or on the Effective Date between Holdings and Bucyrus providing
for the merger contemplated by Section 5.02(c) of the Plan, which shall be
substantially in the form set forth in Exhibit E.
1.091. "New Bank One Credit Agreement" means the Credit Agreement to be
entered into as of the Effective Date between the Reorganized Debtor and Bank
One, Milwaukee, N.A.
1.092. "New Bucyrus Common Stock" means the 20,000,000 shares of Bucyrus
Common Stock authorized pursuant to the Amended Certificate of Incorporation.
1.093. "New Bucyrus Notes" means the secured senior notes of New Bucyrus,
due on the fifth anniversary of the Effective Date, which shall be issued by New
Bucyrus on the Effective Date under the New South Street Credit Agreement and
this Plan.
1.094. "New Bucyrus Registration Rights Agreement" means an agreement
regarding the registration and related rights of the holders of the New Bucyrus
Common Stock, the terms and conditions of which agreement are summarized in
Exhibit C to this Plan, which agreement shall be substantially in the form set
forth in the Reorganization Documents.
1.095. "New South Street Credit Agreement" means the credit agreement that
shall be entered into on the Effective Date between the Reorganized Debtor and
the South Street Funds with respect to the New Bucyrus Notes.
1.096. "New South Street Term Sheet" means the term sheet for the New South
Street Credit Agreement, a copy of which is attached hereto as Exhibit D.
1.097. "Non-Released Persons" is defined in Section 9.04.
1.098. "Old Bucyrus Common Stock" means the 100 shares of Bucyrus Common
Stock held by Holdings on the Petition Date, being all of the authorized and
outstanding shares of Bucyrus Common Stock on that date.
1.099. "Original Directors" means the initial members of the Board of
Directors of the Reorganized Debtor selected pursuant to Section 5.04(b) and
their respective successors, if any, elected in the manner specified in Section
4.7(B) of the Amended Bylaws.
1.100. "Person" means any individual, firm, corporation, association,
partnership, joint venture, trust, or other entity.
1.101. "Petition Date" means the date on which the Debtors filed their
petitions for relief commencing the Chapter 11 Cases.
1.102. "Plan" means this Second Amended Joint Plan of Reorganization,
either in its present form or as it may be altered, amended, modified or
supplemented from time to time in accordance with the Plan, the Bankruptcy Code
and the Bankruptcy Rules.
1.103. "Pre-Petition Secured Lease Claims" means the outstanding principal
amount of the Bucyrus South Street Lease Claims plus the amount of accrued and
unpaid interest thereon as of the Petition Date.
1.104. "Pre-Petition Secured Note Claims" means the outstanding principal
amount of the Bucyrus South Street Note Claims plus the amount of accrued and
unpaid interest thereon as of the Petition Date.
1.105. "Priority Tax Claim" means a Claim of a governmental unit of the
kind specified in section 507(a)(7) of the Bankruptcy Code.
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1.106. "Pro Rata" means proportionately so that with respect to an Allowed
Claim or Equity Interest, the ratio of (i) (I) the amount of property
distributed on account of a particular Allowed Claim or Equity Interest to (II)
the amount of the Allowed Claim or Equity Interest, is the same as the ratio of
(ii) (I) the amount of property distributed on account of all Allowed Claims or
Equity Interests of the Class in which the particular Allowed Claim or Equity
Interest is included to (II) the amount of Allowed Claims or Equity Interests in
that Class.
1.107. "Professionals" means all professionals employed in the Chapter 11
Cases pursuant to section 327 or 1103 of the Bankruptcy Code, all professionals
seeking compensation or reimbursement of expenses from the Debtors, pursuant to
section 503(b)(4) or otherwise, and the Examiner appointed in Bucyrus' Chapter
11 Case.
1.108. "Professional Fee Claims" means Claims against the Debtors for
compensation or reimbursement of expenses of Professionals which were unpaid as
of the Petition Date or which were incurred on or after the Petition Date and
prior to the Effective Date, including claims by any Person for reimbursement of
amounts paid or owing to Professionals.
1.109. "Released Matters", "Released Persons" and "Releasors" are defined
in Section 9.03.
1.110. "Reorganization Documents" means the New Bank One Credit Agreement,
the New South Street Credit Agreement, the New Bucyrus Registration Rights
Agreement and all other documents necessary to effectuate this Plan, which
documents shall be filed by the Debtors with the Bankruptcy Court not later than
the commencement of the hearing on Confirmation.
1.111. "Reorganized Debtor" means Bucyrus as Debtor and Debtor in
Possession, or any successor thereto, by merger, consolidation or otherwise, on
and after the Effective Date.
1.112. "Retirement Plans" means the Bucyrus-Erie Salaried Employees'
Retirement Plan, the Supplementary Retirement Benefit Plan, Bucyrus-Erie
Salaried Employees' Savings Plan and Bucyrus-Erie Hourly Employees' Savings
Plan.
1.113. "Schedules" means the schedules of assets and liabilities, schedules
of executory contracts and the statement of financial affairs that the Debtors
are required to File pursuant to section 521 of the Bankruptcy Code, the
Official Bankruptcy Forms and the Bankruptcy Rules.
1.114. "Secured Claim" means a Claim that is secured by a lien on property
in which an Estate has an interest or that is subject to set off under section
553 of the Bankruptcy Code, to the extent of the value of the Claim Holder's
interest in the Estate's interest in such property or to the extent of the
amount subject to setoff, as applicable, as determined pursuant to section
506(a) of the Bankruptcy Code.
1.115. "Securities Act" means the Securities Act of 1933, 15 U.S.C. ss.ss.
77a-77aa, as now in effect or hereafter amended.
1.116. "South Street Funds" means South Street Corporate Recovery Fund I,
L.P., South Street Leveraged Corporate Recovery Fund, L.P., and South Street
Corporate Recovery Fund I (International), L.P.
1.117. "South Street Claims" means the Claims of the Holders of the Bucyrus
South Street Note Claims and the Claims of the Holders of the Bucyrus South
Street Lease Claims.
1.118. "South Street Note Trustee" means Norwest Bank Wisconsin, National
Association, as trustee under the Bucyrus South Street Note Indenture.
1.119. "Trade Claim" means any Unsecured Claim against a Debtor arising
from or with respect to the delivery of goods or services to such Debtor in the
ordinary course of the Debtor's business, prior to the Petition Date.
1.120. "Transfer" and "Transferee" are defined in Section 5.04(c)(ii).
1.121. "Unimpaired Claim" means an unimpaired Claim within the meaning of
section 1124 of the Bankruptcy Code.
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1.122. "Unimpaired Class" means an unimpaired Class within the meaning of
section 1124 of the Bankruptcy Code.
1.123. "Unofficial Bondholder Committee" means the ad hoc committee of
holders of the Bucyrus 10% Senior Notes and the Holdings Senior Debentures.
1.124. "Unsecured Claim" means any Claim against a Debtor that is not a
Secured Claim, Administrative Claim, Priority Tax Claim or Other Priority Claim.
1.125. "Voting Agent" means D.F. King & Co., Inc.
1.126. "Voting Instructions" means the instructions for voting on the Plan
contained in the section of the Disclosure Supplement entitled "SOLICITATION;
VOTING PROCEDURES" and in the Ballots and the Master Ballots.
1.127. "Voting Receipt Date" means the date established by Final Order of
the Bankruptcy Court for the receipt by the Voting Agent of Ballots and Master
Ballots from Holders of Impaired Claims and Impaired Equity Interests.
1.128. "Voting Record Date" means September 1, 1994.
1.129. "1996 Annual Meeting" and "1997 Annual Meeting" mean the annual
meetings of the stockholders of the Reorganized Debtor to be held in 1996 and
1997, respectively.
ARTICLE II
TREATMENT OF ADMINISTRATIVE
AND PRIORITY TAX CLAIMS
A. Administrative Claims.
2.01. Subject to the provisions of sections 330(a) and 331 of the
Bankruptcy Code, each Holder of an Allowed Administrative Claim will be paid the
full unpaid amount of such Allowed Administrative Claim in Cash on the Effective
Date, or upon such other terms as may be agreed upon by such Holder and the
Reorganized Debtor or otherwise upon order of the Bankruptcy Court; provided,
however, that Allowed Administrative Claims representing obligations incurred in
the ordinary course of business or otherwise assumed by the Debtors pursuant to
the Plan will be assumed on the Effective Date and paid or performed by the
Reorganized Debtor when due in accordance with the terms and conditions of the
particular agreements governing such obligations.
B. Priority Tax Claims.
2.02. On the Effective Date, each Holder of a Priority Tax Claim due and
payable on or prior to the Effective Date shall be paid Cash in an amount equal
to the amount of such Allowed Claim on such terms as have been or may be agreed
upon by such Holder and the Debtor liable on the Allowed Claim. In accordance
with section 1124 of the Bankruptcy Code, the Plan shall leave unaltered the
legal, equitable and contractual rights of each Holder of a Priority Tax Claim.
ARTICLE III
CLASSIFICATION AND TREATMENT
OF CLASSIFIED CLAIMS AND EQUITY INTERESTS
A. Summary.
3.01. The following classification of Claims and Equity Interests is made
for purposes of voting on the Plan, making Distributions under the Plan and for
ease of administration:
Class Status
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<TABLE>
<S> <C> <C>
Class 1A - Holdings Priority Claims Unimpaired - not entitled to vote
Class 1B - Bucyrus Priority Claims Unimpaired - not entitled to vote
Class 2A - Bucyrus South Street Impaired - entitled to vote
Note Claims
Class 2B - Bucyrus South Street Lease Impaired - entitled to vote
Claims
Class 3A - Holdings Secured Claims Unimpaired - not entitled to vote
Class 3B - Bucyrus Secured Claims Unimpaired - not entitled to vote
Class 4A - Claims of Holders of Bucyrus Impaired - entitled to vote
10% Senior Notes
Class 4B - Claims of Holders of Bucyrus Impaired - entitled to vote
Resettable Senior Note
Class 4C - Claims of Holders of Bucyrus Impaired - entitled to vote
Sinking Fund Debentures
Class 4D - Bell Helicopter Claim Impaired - entitled to vote
Class 5 - Intercompany Claim Impaired - entitled to vote
Class 6 - Claims of Holders of Holdings Impaired - entitled to vote
Senior Debentures
Class 7A - Holdings General Unsecured Unimpaired - not entitled to vote
Claims
Class 7B - Bucyrus General Unsecured Unimpaired - not entitled to vote
Claims
Class 8 - Equity Interests of Holder of Old Impaired - deemed to have voted
Bucyrus Common Stock against the Plan
Class 9 - Equity Interests of Holders of Impaired - entitled to vote
Holdings Series A Preferred Stock
Class 10 - Equity Interests of Holders of Impaired - entitled to vote
Holdings Series B Preferred Stock
Class 11 - Equity Interests of Holders of Impaired - entitled to vote
Holdings Class C Stock (including
Equity Interests of Holders of
Holdings Old Warrants)
Class 12 - Equity Interests of Holders of Impaired - entitled to vote
Holdings Class D Stock
Class 13 - Equity Interests of Holders of Impaired - entitled to vote
Holdings Stock Options
</TABLE>
B. Classification and Treatment.
3.02. Class 1A--Holdings Priority Claims.
(a) Classification: Class 1A consists of all Holdings Priority
Claims.
(b) Treatment: On the Effective Date, all Allowed Holdings
Priority Claims to the extent then due and owing will be paid in full
in Cash by the Reorganized Debtor, unless the Holder of such Claim and
the Reorganized Debtor agree to a different treatment. Any Allowed
Holdings Priority Claim not due and owing on the Effective Date will
be paid in full in Cash by the Reorganized Debtor when such Claim
becomes due and owing.
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(c) Voting: Class 1A is unimpaired and the Holders of Claims in
Class 1A are not entitled to vote to accept or reject the Plan.
3.03. Class 1B--Bucyrus Priority Claims.
(a) Classification: Class 1B consists of all Bucyrus Priority
Claims.
(b) Treatment: On the Effective Date, all Allowed Bucyrus
Priority Claims to the extent then due and owing will be paid in full
in Cash by the Reorganized Debtor, unless the Holder of such Claim and
the Reorganized Debtor agree to a different treatment. Any Allowed
Bucyrus Priority Claim not due and owing on the Effective Date will be
paid in full in Cash by the Reorganized Debtor when such Claim becomes
due and owing.
(c) Voting: Class 1B is unimpaired and the Holders of Claims in
Class 1B are not entitled to vote to accept or reject the Plan.
3.04. Class 2A--Bucyrus South Street Note Claims.
(a) Classification: Class 2A consists of all Bucyrus South Street
Note Claims.
(b) Treatment: On the Effective Date, each Holder of an Allowed
Class 2A Claim will receive, in full and final satisfaction of such
Claim, New Bucyrus Notes in the principal amount equal to the
aggregate outstanding principal of and accrued unpaid interest to and
including the Effective Date on the Bucyrus South Street Notes held by
such Holder as of the Confirmation Date. For purposes of this Section
3.04(b), the amount of accrued interest on the Bucyrus South Street
Notes shall be calculated without regard to the pendency of the
Chapter 11 Cases and without regard to any penalty, premium, cost of
collection or related expense which may be claimed to be owing with
respect to the Bucyrus South Street Notes.
(c) Voting: Class 2A is Impaired and the Holders of Allowed Class
2A Claims are entitled to vote to accept or reject the Plan.
3.05. Class 2B--Bucyrus South Street Lease Claims.
(a) Classification: Class 2B consists of all Bucyrus South Street
Lease Claims.
(b) Treatment: On the Effective Date, each Holder of an Allowed
Class 2B Claim will receive, in full and final satisfaction of such
Claim, such Holder's Pro Rata share of New Bucyrus Notes in a
principal amount equal to the outstanding unpaid amount owing with
respect to the Bucyrus South Street Lease as of the Effective Date,
less $2,500,000. For purposes of this Section 3.05(b), the outstanding
unpaid amount owing with respect to the Bucyrus South Street Lease
shall be calculated without regard to the pendency of the Chapter 11
Cases and without regard to any penalty, premium, cost of collection
or other expense which may be claimed to be owing with respect to the
Bucyrus South Street Lease.
(c) Voting: Class 2B is Impaired and the Holders of Allowed Class
2B Claims are entitled to vote to accept or reject the Plan.
3.06. Class 3A--Holdings Secured Claims.
(a) Classification: Class 3A consists of all Holdings Secured
Claims.
(b) Treatment: The legal, equitable and contractual rights of
Holders of Holdings Secured Claims are unaltered by the Plan or, at
the option of the Debtors, will be treated in any other manner so that
such Claims shall otherwise be rendered unimpaired pursuant to section
1124 of the Bankruptcy Code.
(c) Voting: Class 3A is unimpaired and the Holders of Claims in
Class 3A are not entitled to vote to accept or reject the Plan.
3.07. Class 3B--Bucyrus Secured Claims.
(a) Classification: Class 3B consists of all Bucyrus Secured
Claims.
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<PAGE>
(b) Treatment: The legal, equitable and contractual rights of
Holders of Bucyrus Secured Claims are unaltered by the Plan or, at the
option of the Debtors, will be treated in any other manner so that
such Claims shall otherwise be rendered unimpaired pursuant to section
1124 of the Bankruptcy Code.
(c) Voting: Class 3B is unimpaired and the Holders of Claims in
Class 3B are not entitled to vote to accept or reject the Plan.
3.08. Class 4A--Claims of Holders of Bucyrus 10% Senior Notes.
(a) Classification: Class 4A consists of the Claims of Holders of
Bucyrus 10% Senior Notes arising from or related to the Bucyrus 10%
Senior Notes.
(b) Treatment: On or as soon as practicable after the Effective
Date, each Holder of an Allowed Class 4A Claim shall receive, in full
and final satisfaction of such Claim, such Holder's Pro Rata share of
5,010,329 shares of New Bucyrus Common Stock. In the event that Class
9 votes to reject the Plan, on or as soon as practicable after the
Effective Date, each Holder of an Allowed Class 4A Claim shall receive
such Holder's Pro Rata share of an additional 44,287 shares of New
Bucyrus Common Stock.
(c) Voting: Class 4A is Impaired and the Holders of Allowed Class
4A Claims are entitled to vote to accept or reject the Plan.
3.09. Class 4B--Claim of Holder of Bucyrus Resettable Senior Notes.
(a) Classification: Class 4B consists of the Claim of the Holder
of Bucyrus Resettable Senior Notes arising from or related to the
Bucyrus Resettable Senior Notes.
(b) Treatment: On or as soon as practicable after the Effective
Date, the Holder of the Allowed Class 4B Claim shall receive, in full
and final satisfaction of such Claim, (i) 4,057,203 shares of New
Bucyrus Common Stock and (ii) if the Holder votes to accept the Plan
on or prior to the Voting Receipt Date and executes and delivers the
undertaking described in Section 9.06, (x) any recovery of cash or
property obtained by or on behalf of the Reorganized Debtor with
respect to any Cause of Action against a Non-Released Person which
arose prior to the Petition Date, and (y) in the event and to the
extent that a Claim or Equity Interest held by a Non-Released Person
is not Allowed by Final Order by reason of the acts or omissions of
such Non-Released Person prior to the Petition Date, the property that
would otherwise have been distributed under the Plan to such
Non-Released Person if such Claim or Equity Interest had been Allowed
in full. In the event that Class 9 votes to reject the Plan, on or as
soon as practicable after the Effective Date, the Holder of the
Allowed Class 4B Claim shall receive an additional 35,862 shares of
New Bucyrus Common Stock.
(c) Voting: Class 4B is Impaired and the Holder of the Allowed
Class 4B Claim is entitled to vote to accept or reject the Plan.
3.10. Class 4C--Claims of Holders of Bucyrus Sinking Fund Debentures.
(a) Classification: Class 4C consists of the Claims of Holders of
Bucyrus Sinking Fund Debentures arising from or related to the Bucyrus
Sinking Fund Debentures.
(b) Treatment: On or as soon as practicable after the Effective
Date, each Holder of an Allowed Class 4C Claim shall receive, in full
and final satisfaction of such Claim, such Holder's Pro Rata share of
50,686 shares of New Bucyrus Common Stock. In the event that Class 9
votes to reject the Plan, on or as soon as practicable after the
Effective Date, each Holder of an Allowed Class 4C Claim shall receive
such Holder's Pro Rata share of an additional 448 shares of New
Bucyrus Common Stock.
(c) Voting: Class 4C is Impaired and the Holders of Allowed Class
4C Claims are entitled to vote to accept or reject the Plan.
3.11. Class 4D--Bell Helicopter Claim.
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<PAGE>
(a) Classification: Class 4D consists of the Bell Helicopter
Claim. The Holder of the Bell Helicopter Claim shall be deemed to have
an Allowed Claim in the amount of $3,350,000.
(b) Treatment: On or as soon as practicable after the Effective
Date, the Holder of the Allowed Class 4D Claim shall receive, in full
and final satisfaction of such Claim, $350,000 in Cash and 170,413
shares of New Bucyrus Common Stock. In the event that Class 9 votes to
reject the Plan, on or as soon as practicable after the Effective
Date, the Holder of the Allowed Class 4D Claim shall receive an
additional 1,507 shares of New Bucyrus Common Stock.
(c) Voting: Class 4D is Impaired and the Holder of the Allowed
Class 4D Claim is entitled to vote to accept or reject the Plan.
3.12. Class 5--Intercompany Claim.
(a) Classification: Class 5 consists of the Intercompany Claim.
(b) Treatment: On or as soon as practicable after the Effective
Date, the Holder of an Allowed Class 5 Claim shall receive, in full
and final satisfaction of such Claim, 572,800 shares of Holdings Class
E Stock, which shall be converted pursuant to the Merger Agreement
into 572,800 shares of New Bucyrus Common Stock, which shall be
allocated ratably among Holders of Class 4A, 4B, 4C and 4D Claims
pursuant to Sections 3.08, 3.09, 3.10 and 3.11 of the Plan. In the
event that Class 9 votes to reject the Plan, on or as soon as
practicable after the Effective Date, each Holder of an Allowed Class
5 Claim shall receive such Holder's Pro Rata share of an additional
71,285 shares of Holdings Class E Stock, which shall be converted
pursuant to the Merger Agreement into 71,285 shares of New Bucyrus
Common Stock. The shares of New Bucyrus Stock so converted shall be
allocated ratably among Holders of Class 4A, 4B, 4C and 4D Claims
pursuant to Sections 3.08, 3.09, 3.10 and 3.11 of the Plan.
(c) Voting: Class 5 is Impaired and the Holder of an Allowed
Class 5 Claim is entitled to vote to accept or reject the Plan.
3.13. Class 6--Claims of Holders of Holdings Senior Debentures.
(a) Classification: Class 6 consists of the Claims of Holders of
Holdings Senior Debentures arising from or related to the Holdings
Senior Debentures.
(b) Treatment: On or as soon as practicable after the Effective
Date, each Holder of an Allowed Class 6 Claim shall receive, in full
and final satisfaction of such Claim, such Holder's Pro Rata share of
716,021 shares of Holdings Class E Stock, which shall be converted
pursuant to the Merger Agreement into such Holder's Pro Rata share of
716,021 shares of New Bucyrus Common Stock. In the event that Class 9
votes to reject the Plan, on or as soon as practicable after the
Effective Date, each Holder of an Allowed Class 6 Claim shall receive
such Holder's Pro Rata share of an additional 89,109 shares of
Holdings Class E Stock, which shall be converted pursuant to the
Merger Agreement into such Holder's Pro Rata share of 89,109 shares of
New Bucyrus Common Stock. Prior to the effectiveness of the Merger
Agreement, the Holdings Class E Stock that would otherwise be
distributed to Bucyrus as a Holder of Class 9 Claims shall be
allocated ratably among Holders of Class 4A, 4B, 4C and 4D Claims
pursuant to Sections 3.08, 3.09, 3.10 and 3.11 of the Plan.
(c) Voting: Class 6 is Impaired and the Holders of Allowed Class
6 Claims are entitled to vote to accept or reject the Plan.
3.14. Class 7A--Holdings General Unsecured Claims.
(a) Classification: Class 7A consists of all Holdings General
Unsecured Claims.
(b) Treatment: All Holdings General Unsecured Claims shall be
unimpaired by the Plan. At the option of the Reorganized Debtor, the
Plan shall (i) leave unaltered the legal,
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<PAGE>
equitable and contractual rights of the Holder of an Holdings General
Unsecured Claim, (ii) provide for the payment of an Holdings General
Unsecured Claim in full in Cash on the Effective Date, (iii) provide
for the payment of an Holdings General Unsecured Claim in any manner
agreed to by the Holder of such Claim and the Reorganized Debtor, or
(iv) provide for such other treatment as will render such Holdings
General Unsecured Claim unimpaired in accordance with section 1124 of
the Bankruptcy Code.
(c) Voting: Class 7A is unimpaired and the Holders of Claims in
Class 7A are not entitled to vote to accept or reject the Plan.
3.15. Class 7B--Bucyrus General Unsecured Claims.
(a) Classification: Class 7B consists of all Bucyrus General
Unsecured Claims.
(b) Treatment: All Bucyrus General Unsecured Claims shall be
unimpaired by the Plan. At the option of the Reorganized Debtor, the
Plan shall (i) leave unaltered the legal, equitable and contractual
rights of the Holder of an Bucyrus General Unsecured Claim, (ii)
provide for the payment of an Bucyrus General Unsecured Claim in full
in Cash on the Effective Date, (iii) provide for the payment of an
Bucyrus General Unsecured Claim in any manner agreed to by the Holder
of such Claim and the Reorganized Debtor, or (iv) provide such other
treatment as will render such Bucyrus General Unsecured Claim
unimpaired in accordance with section 1124 of the Bankruptcy Code.
(c) Voting: Class 7B is unimpaired and the Holders of Claims in
Class 7B are not entitled to vote to accept or reject the Plan.
3.16. Class 8--Equity Interest of Holder of Old Bucyrus Common Stock.
(a) Classification: Class 8 consists of the Equity Interest of
Holdings as the Holder of Old Bucyrus Common Stock.
(b) Treatment: The Holder of the Class 8 Equity Interest shall
receive no distribution nor retain any property on account of such
Equity Interest under the Plan.
(c) Voting: Class 8 is Impaired and because no distribution will
be made to the Holder of the Class 8 Equity Interest nor will such
Holder retain any property on account of such Equity Interest, the
Holder of the Class 8 Equity Interest is deemed to reject the Plan.
3.17. Class 9--Equity Interests of Holders of Holdings Series A
Preferred Stock.
(a) Classification: Class 9 consists of the Equity Interests of
Holders of Holdings Series A Preferred Stock.
(b) Treatment: On or as soon as practicable after the Effective
Date, each Holder of an Allowed Class 9 Equity Interest shall receive,
in full and final satisfaction of such Equity Interest, such Holder's
Pro Rata share of 160,394 shares of Holdings Class E Stock, which
shall be converted pursuant to the Merger Agreement into 160,394
shares of New Bucyrus Common Stock. In the event that Class 9 votes to
reject the Plan, on or as soon as practicable after the Effective
Date, each Holder of an Allowed Class 9 Equity Interest shall receive,
in full and final satisfaction of such Equity Interest, such Holder's
Pro Rata share of 80,197 shares of Holdings Class E Stock, which shall
be converted pursuant to the Merger Agreement into 80,197 shares of
New Bucyrus Common Stock.
(c) Voting: Class 9 is Impaired and the Holders of Allowed Class
9 Equity Interests are entitled to vote to accept or reject the Plan.
3.18. Class 10--Equity Interests of Holders of Holdings Series B
Preferred Stock.
(a) Classification: Class 10 consists of the Equity Interests of
Holders of Holdings Series B Preferred Stock.
(b) Treatment: On or as soon as practicable after the Effective
Date, each Holder of an Allowed Class 10 Equity Interest shall
receive, in full and final satisfaction of such Equity Interest, such
Holder's Pro Rata share of 32,423 shares of Holdings Class E Stock,
14
<PAGE>
which shall be converted pursuant to the Merger Agreement into 32,423
shares of New Bucyrus Common Stock. In the event that Class 9 votes to
reject the Plan, the Holders of Class 10 Equity Interests shall
receive no distribution nor retain any property on account of such
Equity Interests under the Plan.
(c) Voting: Class 10 is Impaired and the Holders of Allowed Class
10 Equity Interests are entitled to vote to accept or reject the Plan.
In the event that Class 9 votes to reject the Plan, Holders of Class
10 Equity Interests will be deemed to reject the Plan because no
distribution will be made to the Holders of Class 10 Equity Interests
nor will such Holders retain any property on account of such Equity
Interests.
3.19. Class 11--Equity Interests of Holders of Holdings Class C Stock
(including Equity Interests of Holders of Holdings Old Warrants).
(a) Classification: Class 11 consists of the Equity Interests of
Holders of Holdings Class C Stock and the Equity Interests of Holders
of Holdings Old Warrants.
(b) Treatment: On or as soon as practicable after the Effective
Date, each Holder of an Allowed Class 11 Equity Interest shall
receive, in full and final satisfaction of such Equity Interest, such
Holder's Pro Rata share of 47,276 shares of Holdings Class E Stock,
which shall be converted pursuant to the Merger Agreement into 47,276
shares of New Bucyrus Common Stock. In the event that Class 9 votes to
reject the Plan, the Holders of Class 11 Equity Interests shall
receive no distribution nor retain any property on account of such
Equity Interests under the Plan.
(c) Voting: Class 11 is Impaired and the Holders of Allowed Class
11 Equity Interests are entitled to vote to accept or reject the Plan.
In the event that Class 9 votes to reject the Plan, Holders of Class
11 Equity Interests will be deemed to reject the Plan because no
distribution will be made to the Holders of Class 11 Equity Interests
nor will such Holders retain any property on account of such Equity
Interests.
3.20. Class 12--Equity Interests of Holders of Holdings Class D Stock.
(a) Classification: Class 12 consists of the Equity Interests of
Holders of Holdings Class D Stock.
(b) Treatment: On or as soon as practicable after the Effective
Date, each Holder of an Allowed Class 12 Equity Interest shall
receive, in full and final satisfaction of such Equity Interest, such
Holder's Pro Rata share of 499 shares of Holdings Class E Stock, which
shall be converted pursuant to the Merger Agreement into 499 shares of
New Bucyrus Common Stock. In the event that Class 9 votes to reject
the Plan, the Holders of Class 12 Equity Interests shall receive no
distribution nor retain any property on account of such Equity
Interests under the Plan.
(c) Voting: Class 12 is impaired and the Holders of Allowed Class
12 Equity Interests are entitled to vote to accept or reject the Plan.
In the event that Class 9 votes to reject the Plan, Holders of Class
12 Equity Interests will be deemed to reject the Plan because no
distribution will be made to the Holders of Class 12 Equity Interests
nor will such Holders retain any property on account of such Equity
Interests.
3.21. Class 13--Equity Interests of Holders of Holdings Stock Options.
(a) Classification: Class 13 consists of the Equity Interests of
Holders of Holdings Stock Options.
(b) Treatment: The Holders of Class 13 Equity Interests who have
exercised Holdings Stock Options prior to the Effective Date shall be
treated as Holders of Class 11 Equity Interests for purposes of
distributions under the Plan. The Holders of Class 13 Equity Interests
who have not exercised Holdings Stock Options prior to the Effective
Date shall receive no distribution nor retain any property on account
of such Equity Interests under the Plan.
15
<PAGE>
(c) Voting: Class 13 is Impaired and the Holders of Allowed Class
13 Equity Interests are entitled to vote to accept or reject the Plan.
In the event that Class 9 votes to reject the Plan, Holders of Class
13 Equity Interests will be deemed to reject the Plan because no
distribution will be made to the Holders of Class 13 Equity Interests
nor will such Holders retain any property on account of such Equity
Interests.
C. Rights of Debtors Concerning Unimpaired Claims.
3.22. Except as otherwise provided in the Plan, including as provided in
Article IX, nothing under the Plan shall affect the Debtors' or the Reorganized
Debtor's rights in respect of any Unimpaired Claims, including, but not limited
to, all rights in respect of legal and equitable defenses to or setoffs,
recoupments or counterclaims against such Unimpaired Claims.
D. Automatic Amendment to Plan Upon Rejection of Plan by Class 9.
3.23. In the event that Class 9 votes to reject the Plan, then (a) the Plan
shall be deemed automatically amended without further action by the Debtor such
that (i) each Holder of an Allowed Class 9 Equity Interest shall receive, in
full and final satisfaction of such Equity Interest, its Pro Rata share of
80,197 shares of Holdings Class E Stock, which shall be converted pursuant to
the Merger Agreement into 80,197 shares of New Bucyrus Common Stock, (ii) the
Holders of Class 10, 11 and 12 Equity Interests and the Holders of Class 13
Equity Interests who have exercised Holdings Stock Options prior to the
Effective Date shall receive no distributions nor retain any property under the
Plan on account of such Equity Interests, and the existing shares of Holdings
Series B Preferred Stock, Holdings Class C Stock and Holdings Class D Stock
shall be canceled as provided by Section 5.02(a) of this Plan, prior to the
merger contemplated by Section 5.02(c) of the Plan, (iii) the Holder of the
Class 5 Claim shall receive an additional 71,285 shares of Holdings Class E
Stock, which will be converted pursuant to the Merger Agreement into 71,285
shares of New Bucyrus Common Stock, which shall be allocated ratably among
Holders of Class 4A, 4B, 4C and 4D Claims pursuant to Sections 3.08, 3.09, 3.10
and 3.11 of the Plan and (iv) each Holder of an Allowed Class 6 Claim shall
receive, in full and final satisfaction of such Claim, such Holder's Pro Rata
share of 89,109 shares of Holdings Class E Stock, which shall be converted
pursuant to the Merger Agreement into such Holder's Pro Rata share of 89,109
shares of New Bucyrus Common Stock.
ARTICLE IV
ACCEPTANCE OR REJECTION OF THE PLAN
A. Voting Classes.
4.01. Each Holder of an Allowed Class 2A, 2B, 4A, 4B, 4C, 4D, 5 or 6 Claim
or an Allowed Class 9, 10, 11, 12 or 13 Equity Interest shall be entitled to
vote to accept or reject the Plan.
B. Acceptance by Impaired Classes.
4.02. An Impaired Class of Claims shall have accepted the Plan if (i) the
Holders (other than any Holder designated under section 1126(e) of the
Bankruptcy Code) of at least two-thirds in amount of the Allowed Claims actually
voting in such Class have voted to accept the Plan and (ii) the Holders (other
than any Holder designated under section 1126(e) of the Bankruptcy Code) of more
than one-half in number of the Allowed Claims actually voting in such Class have
voted to accept the Plan. An Impaired Class of Equity Interests shall have
accepted the Plan if the Holders (other than any Holder designated under section
1126(e) of the Bankruptcy Code) of at least two-thirds in amount of the Allowed
Equity Interests actually voting in such Class have voted to accept the Plan.
16
<PAGE>
C. Presumed Acceptance of Plan.
4.03. Classes 1A, 1B, 3A, 3B, 7A and 7B are unimpaired under the Plan, and
therefore are presumed conclusively to have accepted the Plan pursuant to
section 1126(f) of the Bankruptcy Code.
D. Confirmation Without Acceptance by All Impaired Classes.
4.04. The Debtors will request that the Bankruptcy Court confirm the Plan
in accordance with section 1129(b) of the Bankruptcy Code in view of the deemed
rejection of the Plan by Class 8. In the event that Class 4B or Class 9 fails to
accept the Plan, the Debtors intend to seek Confirmation of the Plan under
section 1129(b) of the Bankruptcy Code notwithstanding such rejection. In the
event that any of Classes 2A, 2B, 4A, 4C, 4D, 10, 11, 12 or 13 fails to accept
the Plan, the Debtors reserve their right (i) to modify the Plan in accordance
with Article XIII.F of the Plan and (ii) to request that the Bankruptcy Court
confirm the Plan in accordance with section 1129(b) of the Bankruptcy Code
notwithstanding such failures.
ARTICLE V
MEANS FOR IMPLEMENTATION OF THE PLAN
A. Continued Corporate Existence and Vesting of Assets in the Reorganized
Debtor.
5.01. Bucyrus shall, as the Reorganized Debtor, continue to exist after the
Effective Date as a separate corporate entity, with all the powers of a
corporation under the laws of the State of Delaware and without prejudice to any
right to alter or terminate such existence (whether by merger or otherwise)
under such applicable state law. Except as otherwise provided in the Plan, on or
after the Effective Date, all property of the Estates, and any property acquired
by the Debtors or the Reorganized Debtor under the Plan, shall vest in the
Reorganized Debtor, free and clear of all Claims, liens, charges, or other
encumbrances and Equity Interests. On and after the Effective Date, the
Reorganized Debtor may operate its business and may use, acquire or dispose of
property and compromise or settle any Claims or Equity Interests, without
supervision or approval by the Bankruptcy Court and free of any restrictions of
the Bankruptcy Code or Bankruptcy Rules, other than those restrictions expressly
imposed by the Plan and the Confirmation Order. In accordance with section
1109(b) of the Bankruptcy Code, nothing in this Article V shall preclude any
party in interest from appearing and being heard on any issue in the Chapter 11
Cases.
B. Transactions on the Effective Date.
5.02. On the Effective Date, unless otherwise provided, the following shall
occur and shall be deemed to have occurred simultaneously (except as specified
in clauses (a) and (b) below):
(a) prior to the merger described in Section 5.02(c), Holdings' certificate
of incorporation shall be amended to cancel the Holdings Stock and create and
authorize two million shares of Holdings Class E Stock;
(b) prior to the merger described in Section 5.02(c), each Holder of an
Allowed Class 6 Claim (Holdings Senior Debentures), the Holder of an Allowed
Class 5 Claim (Intercompany Claim) and each Holder of an Allowed Equity
Interest, other than the Class 8 Equity Interest, shall be deemed to have
exchanged such Claim or Equity Interest for shares of Holdings Class E Stock, as
provided for in the Plan;
(c) Bucyrus and Holdings shall enter into the Merger Agreement and pursuant
to the Merger Agreement and subject to filing by Bucyrus of a certificate of
merger with the Secretary of State of the State of Delaware, Holdings shall
merge with and into Bucyrus, the separate corporate existence of Holdings shall
cease and the Old Bucyrus Common Stock, the Holdings Class E Stock shall be
canceled and the Holders of Old Bucyrus Common Stock and Holdings
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Stock shall surrender such stock certificates to the applicable Disbursing Agent
as set forth in Section 7.12;
(d) the Holdings Stock Options shall be canceled;
(e) the Bucyrus 10% Senior Notes, the Bucyrus Resettable Senior Notes, the
Bucyrus South Street Notes, the Bucyrus Sinking Fund Debentures and the Holdings
Senior Debentures shall be deemed to be canceled and the Holders thereof shall
surrender such Notes and Debentures to the applicable Disbursing Agent as set
forth in Section 7.12;
(f) the Reorganized Debtor shall be deemed to have exercised Bucyrus'
option under the Bucyrus South Street Lease to repurchase all property leased to
Bucyrus thereunder;
(g) the Debt Securities Indentures and the Bucyrus South Street Lease shall
be deemed canceled, terminated and of no further force and effect, as permitted
by section 1123(a)(5)(F) of the Bankruptcy Code, except as provided in the Plan
and the Indenture Trustees shall be released and discharged from any further
duties with respect to their respective Debt Securities Indentures.
(h) the Reorganized Debtor shall issue to the Disbursing Agent the number
of shares of New Bucyrus Common Stock which shall be distributed pursuant to the
Plan on the Effective Date;
(i) the Reorganized Debtor shall enter into the New Bank One Credit
Agreement and the New South Street Credit Agreement; and
(j) the Reorganized Debtor shall enter into the New Bucyrus Registration
Rights Agreement.
C. Corporate Governance, Directors and Officers and Corporate Action.
5.03. Merger Agreement and Amended Certificate of Incorporation. On the
Effective Date, pursuant to the Merger Agreement the Reorganized Debtor will
file a certificate of merger, which will have attached thereto the Amended
Certificate of Incorporation, with the Secretary of State of the State of
Delaware in accordance with sections 103, 251 and 303 of the Delaware General
Corporation Law. The Amended Certificate of Incorporation will, among other
things, prohibit the issuance of nonvoting equity securities to the extent
required by section 1123(a)(6) of the Bankruptcy Code, and create and authorize
20,000,000 shares of New Bucyrus Common Stock. After the Effective Date, the
Reorganized Debtor may amend and restate its Amended Certificate of
Incorporation and other constituent documents as permitted by the Delaware
General Corporation Law.
5.04. Directors and Officers of the Reorganized Debtor.
(a) Subject to any requirement of Bankruptcy Court approval pursuant to
section 1129(a)(5) of the Bankruptcy Code, as of the Effective Date, the initial
officers of the Reorganized Debtor shall be the officers of Bucyrus immediately
prior to the Effective Date. Each such officer shall serve from and after the
Effective Date pursuant to the terms of the Amended Certificate of
Incorporation, the Amended Bylaws and the Delaware General Corporation Law.
(b) The board of directors of the Reorganized Debtor shall consist of a
single class of directors. The initial board of directors of the Reorganized
Debtor shall consist of seven directors who shall be selected as follows: one of
the directors serving on the initial Board of Directors following the Effective
Date will be an officer of Bucyrus nominated by the Board of Directors of
Bucyrus; three of the directors serving on the initial board of directors
following the Effective Date will be persons who will be nominated by the
Creditors Committee; and the remaining three of the directors serving on the
initial board of directors following the Effective Date will be persons who will
be nominated by the Holder of the Allowed Class 4B Claim. Each such initial
director shall serve from and after the Effective Date until the 1996 Annual
Meeting, and, pursuant to Section 5.04(c), from and after the 1996 Annual
Meeting until the 1997 Annual Meeting, and otherwise pursuant to the terms of
the Plan, the Amended Certificate of
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Incorporation, the Amended Bylaws and the Delaware General Corporation Law, and
until their successors have been duly elected or appointed and qualified. The
first annual meeting of stockholders of the Reorganized Debtor following the
Effective Date will be held in 1996 following completion of the Reorganized
Debtor's 1995 fiscal year.
(c) All Holders of Impaired Claims and Equity Interests who have accepted
the Plan by Ballot or Master Ballot and all Holders of Impaired Claims and
Equity Interests who shall receive shares of New Bucyrus Common Stock pursuant
to the Plan shall be deemed as of the Effective Date to have irrevocably agreed
without any further action on the part of any such Person:
(i) to cause the shares of New Bucyrus Common Stock received pursuant
to the Plan and all other shares of New Bucyrus Common Stock beneficially
owned by any such Holder following the Effective Date to be voted for the
election of each of the Original Directors as directors of the Reorganized
Debtor at the 1996 Annual Meeting for a one-year term ending on the date of
the 1997 Annual Meeting and until their successors have been duly elected
or appointed and qualified, and
(ii) that any sale, transfer or other disposition, whether voluntary
or involuntary, by operation of law or otherwise of any shares of New
Bucyrus Common Stock at any time prior to the 1996 Annual Meeting (a
"Transfer"; and any Person to whom any shares of New Bucyrus Common Stock
are Transferred is hereinafter referred to as a "Transferee") shall be made
subject to the irrevocable agreement to vote such shares of New Bucyrus
Common Stock for the election of each of the Original Directors at the 1996
Annual Meeting.
The irrevocable voting agreement provided for in the first sentence of this
Section 5.04(c) shall be binding upon all Transferees.
(d) All certificates for shares for New Bucyrus Common Stock issued by the
Reorganized Debtor prior to the 1996 Annual Meeting shall conspicuously bear the
following legend:
"The shares of Common Stock represented by this stock certificate are
issued pursuant to the Second Amended Joint Plan of Reorganization of B-E
Holdings, Inc. and Bucyrus-Erie Company, as modified December 1, 1994, and
as confirmed by the United States Bankruptcy Court, Eastern District of
Wisconsin (the "Plan"). Pursuant to the Plan all holders of shares of
Common Stock and their Transferees (as defined in the Plan) have
irrevocably agreed to cause the shares of Common Stock beneficially owned
by such holder or Transferee to be voted for the election of each of the
Original Directors (as defined in the Plan), as directors of the
Corporation at the annual meeting of stockholders of the Corporation to be
held in 1996 (the "1996 Annual Meeting") for a one-year term ending on the
date of the annual meeting of stockholders of the Corporation to be held in
1997 and until their successors have been duly elected or appointed and
qualified. In addition, any Transfer (as defined in the Plan) of any shares
of Common Stock at any time prior to the 1996 Annual Meeting shall be made
subject to the above-described irrevocable agreement to vote such shares of
Common Stock for the election of each of the Original Directors at the 1996
Annual Meeting."
(e) The provisions of this Section 5.04 shall not be amended or modified at
any time prior to the 1997 Annual Meeting. Articles V(A), VII(A), VII(C) and IX
of the Amended Certificate of Incorporation and Sections 3.9, 4.2, 4.7(B) and
4.9 of the Amended Bylaws shall not be amended or modified at any time prior to
the 1997 Annual Meeting except as may be provided in the Amended Certificate of
Incorporation and the Amended Bylaws, respectively, as in effect immediately
after the Effective Date.
(f) JNL shall take no action, and shall cause any Affiliate thereof to take
no action, to remove any Original Director other than an Original Director
nominated by JNL (or any successor of such Original Director) prior to the 1997
Annual Meeting, provided that the prohibition provided by this Section 5.04(f)
shall not apply to any action by JNL or any Affiliate thereof to remove any
director of the Reorganized Debtor (i) for any reason at any time when JNL and
any Affiliates thereof in the aggregate (x) beneficially own less than
twenty-five percent (25%) of all
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of the outstanding shares of New Bucyrus Common Stock or (y) do not constitute
the largest beneficial owner of New Bucyrus Common Stock, or (ii) for cause.
5.05. Corporate Action. The adoption of the Amended Certificate of
Incorporation and the Amended Bylaws, the selection of directors and officers
for the Reorganized Debtor, the distribution of Cash, issuance and distribution
of New Bucyrus Common Stock and the adoption, execution and implementation of
employment, retirement and indemnification agreements, incentive compensation
programs, retirement income plans, welfare benefit plans and other employee
plans and related agreements; and the other matters provided for under the Plan
involving the corporate action to be taken by or required of the Reorganized
Debtor shall be deemed to have occurred and be effective as provided herein, and
shall be authorized and approved in all respects without any requirement of
further action by stockholders or directors of the Debtors or the Reorganized
Debtor.
D. Professional Fee Claims.
5.06. Unless a different time is set by Final Order of the Bankruptcy
Court, all applications for allowance of Administrative Claims under section
503(b)(3) of the Bankruptcy Code, and all applications for awards or allowance
of Professional Fee Claims, shall be Filed not later than sixty (60) days after
the Confirmation Date or be forever barred. Objections to such applications
shall be Filed not later than ninety (90) days after the Confirmation Date.
E. Sources of Cash for Plan Distribution.
5.07. All Cash necessary for the Reorganized Debtor to make payments
pursuant to the Plan shall be obtained from existing Cash balances, the
operations of the Debtors or the Reorganized Debtor, or post-confirmation
borrowings under the New Bank One Credit Agreement. The Reorganized Debtor may
also make such payments using Cash received from advances or dividends from the
subsidiaries of the Reorganized Debtor in the ordinary course.
ARTICLE VI
TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES
A. Assumption of Executory Contracts and Unexpired Leases.
6.01. Immediately prior to the Effective Date, all executory contracts or
unexpired leases of the Debtors will be deemed assumed in accordance with the
provisions and requirements of section 365 and 1123 of the Bankruptcy Code
except those executory contracts and unexpired leases that (i) have been
rejected by order of the Bankruptcy Court, (ii) are the subject of a motion to
reject pending on the Effective Date, (iii) are identified on a list to be Filed
on or before the Confirmation Date as to be rejected, or (iv) are rejected
pursuant to the terms of the Plan. Entry of the Confirmation Order by the
Bankruptcy Court shall constitute approval of such assumptions and rejections
pursuant to sections 365(a) and 1123 of the Bankruptcy Code.
B. Claims Based on Rejection of Executory Contracts or Unexpired Leases.
6.02. All proofs of claims with respect to Claims arising from the
rejection of executory contracts or unexpired leases, if any, must be Filed
within sixty (60) days after the date of entry of an order of the Bankruptcy
Court approving such rejection. Any Claims not Filed within such times will be
forever barred from assertion against the Debtors or Reorganized Debtor, their
Estates and property. Unless otherwise ordered by the Bankruptcy Court or
provided in this Plan, all such Claims for which proofs of claim are required to
be Filed will be, and will be treated as, General Unsecured Claims subject to
the provisions of Article VII hereof.
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C. Cure of Defaults for Executory Contracts and Unexpired Leases Assumed.
6.03. Any monetary amounts by which each executory contract and unexpired
lease to be assumed pursuant to the Plan is in default shall be satisfied,
pursuant to section 365(b)(1) of the Bankruptcy Code by payment of the default
amount in Cash on the Effective Date or on such other terms as the parties to
such executory contracts or unexpired leases may otherwise agree. In the event
of a dispute regarding: (i) the amount of any cure payments, (ii) the ability of
the Reorganized Debtor or any assignee to provide "adequate assurance of future
performance" (within the meaning of section 365 of the Bankruptcy Code) under
the contract or lease to be assumed or (iii) any other matter pertaining to
assumption or the cure payments required by section 365(b)(1) of the Bankruptcy
Code shall be made following the entry of a Final Order resolving the dispute
and approving the assumption.
D. Indemnification of Directors, Officers and Employees.
6.04. The obligations of the Debtors to indemnify any person serving at any
time on or prior to the Effective Date as one of its directors, officers or
employees by reason of such person's service in such capacity, or as a director,
officer or employee of any other corporation or legal entity, to the extent
provided in a Debtor's constituent documents or by a written agreement with the
Debtor or the Delaware General Corporation Law are classified as Class 7A (with
respect to obligations of Holdings) and Class 7B (with respect to obligations of
Bucyrus) Claims to the extent they arise prior to the Petition Date, and are
Administrative Claims to the extent they arise on or after the Petition Date.
The legal, equitable and contractual rights to which such directors, officers or
employees are entitled by reason of the Debtor's indemnification obligations
shall be unaltered and unimpaired within the meaning of section 1124(1) of the
Bankruptcy Code. Such indemnification obligations shall survive unaffected by
entry of the Confirmation Order, irrespective of whether such indemnification is
owed for an act or event occurring before or after the Petition Date.
E. Compensation and Benefit Programs.
6.05. Except as otherwise expressly provided hereunder, all employment and
severance policies, and all compensation and benefit plans, policies, and
programs of the Debtors applicable to their employees and retirees and the
employees and retirees of their subsidiaries, including, without limitation, all
savings plans, retirement plans, consultant service agreements and consultant
optional payment agreements entered into between Bucyrus and certain of its
retired employees or directors, health care plans, disability plans, severance
benefit plans, incentive plans, and life, accidental death, and dismemberment
insurance plans are treated as executory contracts under the Plan and on the
Effective Date will be assumed pursuant to the provisions of sections 365 and
1123 of the Bankruptcy Code.
ARTICLE VII
PROVISIONS GOVERNING DISTRIBUTIONS
A. Distributions for Claims Allowed as of the Effective Date.
7.01. Except as otherwise provided in this Article VII or as may be ordered
by the Bankruptcy Court, distributions to be made on the Effective Date on
account of Claims or Equity Interests that are Allowed as of the Effective Date
and are entitled to receive distributions under the Plan shall be made on the
Effective Date. Distributions to Holders of the Impaired Debt Securities and
Holdings Stock shall be deemed made on the Effective Date if made on the
Effective Date or as promptly thereafter as practicable, but in any event no
later than thirty (30) calendar days after the Effective Date or such later date
when the applicable conditions of Section 7.07 (regarding undeliverable
distributions) or Section 7.12 (regarding surrender of canceled instruments and
securities) are satisfied. Distributions on account of Claims or Equity
Interests
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that become Allowed Claims or Allowed Equity Interests after the Effective Date
shall be made pursuant to Section 8.04 below.
7.02. For purposes of determining the accrual of interest or rights in
respect of any other payment from and after the Effective Date, New Bucyrus
Common Stock to be issued shall be deemed issued as of the Effective Date
regardless of the date on which it is actually dated, authenticated or
distributed; provided, however, that the Reorganized Debtor shall withhold any
actual payment until such distribution is made and no interest shall accrue or
otherwise be payable on any such withheld amounts.
B. Distributions by Disbursing Agents.
7.03. General. The Disbursing Agents shall make all distributions required
under the Plan.
7.04. Distributions with Respect to Impaired Debt Securities and Holdings
Stock. Notwithstanding the provisions of Sections 5.02(c) and 5.02(g) regarding
the cancellation of Holdings Stock, the Debt Securities Indentures and the
Bucyrus South Street Lease, each of Holdings Stock, the Debt Securities
Indentures and the Bucyrus South Street Lease shall continue in effect to the
extent necessary to allow the Disbursing Agents to receive and make
distributions pursuant to the Plan on account of Allowed Equity Interests and
Allowed Impaired Debt Securities Claims and to maintain the validity of
Indenture Trustee Charging Liens subject, however, to the provision of Section
7.17.
7.05. Compensation to Indenture Trustees. Each Indenture Trustee providing
services related to distributions as a Disbursing Agent pursuant to the Plan to
Holders of Allowed Impaired Debt Securities Claims in Classes 2A, 2B, 4A, 4B, 4C
and 6 shall receive, from the Reorganized Debtor, with such approval as the
Bankruptcy Court may require, reasonable compensation for such services and
reimbursement of reasonable out-of-pocket expenses incurred in connection with
such services. These payments shall be made on terms agreed to with the
Reorganized Debtor, and shall be in addition to any distributions made to any
Indenture Trustee on account of any Allowed Impaired Debt Securities Claims.
C. Delivery and Distributions and Undeliverable or Unclaimed Distributions.
7.06. Delivery of Distributions in General. Distributions to Holders of
Allowed Claims or Allowed Equity Interests shall be made at the address of the
Holder of such Claim or Equity Interest as indicated on records of the Debtors.
Except as otherwise provided by the Plan or the Bankruptcy Code with respect to
undeliverable distributions, distributions to Holders of Allowed Impaired Debt
Securities Claims in Classes 2A 2B, 4A, 4B, 4C and 6 by Disbursing Agents shall
be made in accordance with the provisions of the applicable Debt Securities
Indenture and the Bucyrus South Street Lease and distributions will be made to
Holders of record as of the Distribution Record Date.
7.07. Undeliverable Distributions.
(a) Holding of Undeliverable Distributions. If any Allowed Claim or Equity
Interest Holder's distribution is returned to the applicable Disbursing Agent as
undeliverable, no further distributions shall be made to such Holder unless and
until the Disbursing Agent is notified in writing of such Holder's then-current
address. Undeliverable distributions shall remain in the possession of the
applicable Disbursing Agent pursuant to this Article VII until such time as a
distribution becomes deliverable. Upon request of the Reorganized Debtor,
undeliverable cash (including dividends on the New Bucyrus Common Stock) shall
not be entitled to any interest, dividends or other accruals of any kind.
(b) After Distributions Become Deliverable. Within 20 days after the end of
each calendar quarter following the Effective Date, the applicable Disbursing
Agent shall make all distributions that become deliverable during the preceding
calendar quarter.
(c) Failure to Claim Undeliverable Distributions. Any Holder of an Allowed
Claim that does not assert a Claim or Equity Interest pursuant to the Plan for
an undeliverable distribution
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within five years after the Effective Date shall have its Claim for such
undeliverable distribution discharged and shall be forever barred from asserting
any such Claim or Equity Interest against the Reorganized Debtor or its
respective property. In such cases, (i) any Cash held for distribution on
account of such Claims or Equity Interests shall be property of the Reorganized
Debtor, free of any restrictions thereon; and (II) any New Bucyrus Common Stock
held for distribution on account of such Claims or Equity Interests shall be
returned by the Disbursing Agent to the Reorganized Debtor and shall be canceled
and of no further force or effect. Nothing contained in the Plan shall require
the Disbursing Agents to attempt to locate any Holder of an Allowed Claim or an
Allowed Equity Interest.
(d) Compliance with Tax Requirements. In connection with the Plan, to the
extent applicable, each Disbursing Agent shall comply with all tax withholding
and reporting requirements imposed on it by any governmental unit, and all
distributions pursuant to the Plan shall be subject to such withholding and
reporting requirements.
D. Distribution Record Date.
7.08. As of the close of business on the Distribution Record Date, the
respective transfer registers for each of the Impaired Debt Securities in
Classes 2A, 2B, 4A, 4B, 4C and 6 as maintained by the Debtors, the respective
Indenture Trustee or their respective agents, shall be closed and the transfer
of Impaired Debt Securities, or any interest therein, will be prohibited.
Moreover, the Disbursing Agents shall have no obligation to recognize the
transfer of any Impaired Debt Securities in such Classes occurring after the
Distribution Record Date, and shall be entitled for all purposes herein to
recognize and deal only with those Holders of record as of the close of business
on the Distribution Record Date.
E. Timing and Calculation of Amounts to be Distributed.
7.09. On the Effective Date, each Holder of an Allowed Claim or Allowed
Equity Interest against the Debtors shall receive the full amount of the
distributions that the Plan provides for Allowed Claims or Allowed Equity
Interests in the applicable Class. Beginning on the date that is twenty (20)
calendar days after the end of the calendar quarter following the Effective Date
and twenty (20) calendar days after the end of each calendar quarter thereafter,
distributions shall also be made, pursuant to Section 8.03 below, to Holders of
Disputed Claims or Disputed Equity Interests in any such Class whose Claims or
Equity Interests were Allowed during the preceding calendar quarter. Such
quarterly distributions shall also be in the full amount that the Plan provides
for Allowed Claims or Allowed Equity Interests in the applicable Class.
F. Distribution and Fractional Securities.
7.10. Notwithstanding any other provisions of the Plan, only whole numbers
of shares of New Bucyrus Common Stock shall be issued. When any distribution on
account of an Allowed Claim or Allowed Equity Interest would otherwise result in
the issuance of a number of shares of New Bucyrus Common Stock that is not a
whole number, the Disbursing Agents shall aggregate and sell all fractional
shares of New Bucyrus Common Stock otherwise distributable in accordance with
the Plan at then prevailing prices and distribute the net proceeds to Holders of
Claims or Interests otherwise entitled thereto.
G. Setoffs.
7.11. The Reorganized Debtor may, pursuant to section 553 of the Bankruptcy
Code or other applicable law, set off against any Allowed Claim and the
distributions to be made pursuant to the Plan on account of such Claim, other
than any distributions to the Holder of the Allowed Class 4B Claim pursuant to
Section 3.09(b)(y), the claims, rights and Causes of Action of any nature that
the Debtors or Reorganized Debtor may hold against the Holder of such Allowed
Claim; provided, however, that neither the failure to effect such a setoff nor
the allowance of any Claim hereunder shall constitute a waiver or release by the
Debtors or Reorganized Debtor of any
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such claims, rights and Causes of Action that the Debtors or Reorganized Debtor
may possess against such Holder.
H. Surrender of Canceled Instruments or Securities.
7.12. As a condition precedent to receiving any distribution pursuant to
the Plan on account of any Allowed Claim or Allowed Equity Interest evidenced by
the instruments, securities, stock certificates or other documentation canceled
pursuant to Article V above, the Holder of such Claim or Equity Interest shall
tender the applicable instruments, securities, stock certificates or other
documentation evidencing such Claim or Equity Interest to the applicable
Disbursing Agent. Any New Bucyrus Common Stock to be distributed pursuant to the
Plan on account of any such Claim or Equity Interest shall, pending such
surrender, be treated as an undeliverable distribution pursuant to Section 7.07.
I. Impaired Debt Securities.
7.13. Each Holder of an Allowed Claim evidenced by an Impaired Debt
Security shall tender such notes or debentures to the applicable Disbursing
Agent in accordance with written instructions to be provided to such Holders by
the applicable Disbursing Agent as promptly as practicable following the
Effective Date. Such instructions shall specify that delivery of such notes or
debentures will be effected, and risk of loss and title thereto will pass, only
upon the proper delivery of such notes or debentures with a letter of
transmittal in accordance with such instructions. All surrendered Impaired Debt
Securities shall be marked as canceled and delivered by the Disbursing Agent to
the Reorganized Debtor.
J. Holdings Stock Certificates.
7.14. Each Holder of an Allowed Equity Interest evidenced by a stock
certificate shall tender such stock certificate to the applicable Disbursing
agent in accordance with written instructions to be provided to such Holders by
the applicable Disbursing Agent as promptly as practicable following the
Effective Date. Such instructions shall specify that delivery of such stock
certificates will be effected, and risk of loss and title thereto will pass,
only upon the proper delivery of such stock certificates with a letter of
transmittal in accordance with such instructions. All surrendered stock
certificates shall be marked as canceled and delivered by the Disbursing Agent
to the Reorganized Debtor.
K. Failure to Surrender Canceled Impaired Debt Securities or Canceled Holdings
Stock Certificates.
7.15. Any Holder of Impaired Debt Securities or Holdings Stock certificates
that fails to surrender or is deemed to have failed to surrender the applicable
notes, debentures or stock certificates required to be tendered hereunder within
five (5) years after the Effective Date shall have its Claim or Equity Interest
for a distribution pursuant to the Plan on account of such Impaired Debt
Securities or Holdings Stock discharged and shall be forever barred from
asserting any such Claim against the Reorganized Debtor or its property. In such
cases, any Cash, New Bucyrus Common Stock held for distribution on account of
such Claim or Equity Interest shall be disposed of pursuant to Section 7.07(c).
L. Lost, Stolen, Mutilated or Destroyed Impaired Debt Securities or Stock
Certificates.
7.16. In addition to any requirements under the applicable Debt Securities
Indenture, any Holder of a Claim evidenced by an Impaired Debt Security that has
been lost, stolen, mutilated or destroyed shall, in lieu of surrendering such
Impaired Debt Security, deliver to the Disbursing Agent: (a) evidence
satisfactory to the Disbursing Agent of the loss, theft, mutilation or
destruction; and (b) such security or indemnity as may be required by the
Disbursing Agent to hold the Disbursing Agent harmless from any damages,
liabilities or costs incurred in treating such individual as a Holder of an
Impaired Debt Security. Upon compliance with this Section 7.16 by a
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Holder of a Claim evidenced by an Impaired Debt Security, such Holder shall, for
all purposes under the Plan, be deemed to have surrendered an Impaired Debt
Security.
7.17. In addition to any requirements under applicable law, any Holder of
Holdings Stock evidenced by a stock certificate that has been lost, stolen,
mutilated or destroyed must, in lieu of surrendering such stock certificate,
deliver to the Disbursing Agent: (a) evidence satisfactory to the Disbursing
Agent of the loss, theft, mutilation or destruction; and (b) such security or
indemnity as may be required by the Disbursing Agent to hold the Disbursing
Agent harmless from any damages, liabilities or costs incurred in treating such
individual as a Holder of a stock certificate evidencing Holdings Stock. Upon
compliance with these requirements, a Holder of Holdings Stock evidenced by a
stock certificate will, for all purposes under the Plan, be deemed to have
surrendered a stock certificate.
M. Cancellation of Existing Indentures and Bucyrus South Street Lease.
7.18. The cancellation of the Debt Securities Indentures under Section
5.02(g) shall not impair the rights of Holders of Impaired Debt Securities to
receive distributions on account of such Claims under the Plan, nor shall such
cancellation impair the rights of the Indenture Trustees to enforce their
Indenture Trustee Charging Liens, if any, under the Debt Securities Indentures
and the Bucyrus South Street Lease. The Impaired Debt Securities shall not be
canceled other than under Section 5.02(g) of the Plan.
N. Release of Indenture Trustee Charging Liens.
7.19. On or as soon as practicable after the Effective Date, in full
satisfaction of the Allowed Claims secured by Indenture Trustee Charging Liens
in Classes 2A, 2B, 4A, 4B, 4C and 6, the respective Indenture Trustee shall
receive Cash in an amount equal to the amount of such Claims, and any Indenture
Trustee Charging Liens shall be released. Distributions received by Holders of
Allowed Impaired Debt Securities Claims pursuant to the Plan shall not be
reduced on account of such payment of Allowed Claims secured by Indenture
Trustee Charging Liens.
O. Allocation of Distributions to Holders of Allowed Claims.
7.20. All payments made pursuant to the Plan to a Holder of an Allowed
Claim which includes accrued but unpaid interest shall be allocated first to the
principal amount of the Allowed Claim and then to such accrued but unpaid
interest to the extent that the amount of the payments made under the Plan to
such Holder exceed the principal amount of such Claim.
ARTICLE VIII
PROCEDURES FOR RESOLVING DISPUTED CLAIMS
A. Prosecution of Objections to Claims.
8.01. Except as provided by Section 8.02, (a) after the Confirmation Date,
only the Debtors and the Reorganized Debtor shall have the authority to File
objections, settle, compromise, withdraw or litigate to judgment objections to
Claims or Equity Interests, and (b) the Debtors and the Reorganized Debtor may
settle or compromise any Disputed Claim or Equity Interest without approval of
the Bankruptcy Court.
8.02. If the Holder of the Allowed Class 4B Claim votes to accept the Plan
on or prior to the Voting Receipt Date and executes and delivers the undertaking
described in Section 9.06 of the Plan, after the Confirmation Date, (a) the
Holder of the Allowed Class 4B Claim shall have the exclusive right and
authority as a representative of the Debtors' Estates to file objections,
request estimation of, settle, compromise, withdraw or litigate to judgment
objections to Claims or Equity Interests of Non-Released Persons, and to consent
to the allowance of such Claims or Equity Interests, (b) the Holder of the
Allowed Class 4B Claim may settle or compromise any Disputed
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Claim or Equity Interest of a Non-Released Person without approval of the
Bankruptcy Court, and (c) Confirmation will constitute appointment of the Holder
of the Allowed Class 4B Claim as the representative of the Debtors' Estates for
the purposes described in clauses (a) and (b) pursuant to section 1123(b)(3)(B)
of the Bankruptcy Code.
B. Estimation of Claims.
8.03. Except as provided by Section 8.02, the Debtors or the Reorganized
Debtor may, at any time, request that the Bankruptcy Court estimate any
contingent or unliquidated Claim pursuant to section 502(c) of the Bankruptcy
Code regardless of whether the Debtors or the Reorganized Debtor has previously
objected to such Claim or whether the Bankruptcy Court has ruled on any such
objection, and the Bankruptcy Court will retain jurisdiction to estimate any
Claim at any time during litigation concerning any objection to any Claim,
including during the pendency of any appeal relating to any such objection. In
the event that the Bankruptcy Court estimated any contingent or unliquidated
Claim, that estimated amount will constitute either the allowed amount of such
Claims or a maximum limitation on such Claim, as determined by the Bankruptcy
Court. If the estimated amount constitutes a maximum limitation on such Claim,
the Debtors or the Reorganized Debtor may elect to pursue any supplemental
proceedings to object to any ultimate payment on such Claim. All of the
aforementioned Claims objection, estimation and resolution procedures are
cumulative and not necessarily exclusive of one another. Claims may be estimated
and subsequently compromised, settled, withdrawn or resolved by any mechanism
approved by the Bankruptcy Court.
C. Payments and Distributions on Disputed Claims.
8.04. Notwithstanding any provision in the Plan to the contrary, no partial
payments and no partial distributions will be made with respect to a Disputed
Claim or Disputed Equity Interest until the resolution of such disputes by
settlement or Final Order. Subject to the provisions of this Section 8.04, as
soon as practicable after a Disputed Claim or Disputed Equity Interest becomes
an Allowed Claim or Allowed Equity Interest, the Holder of such Allowed Claim or
Allowed Equity Interest will receive all payments and distributions to which
such Holder is then entitled under the Plan. Notwithstanding the foregoing, any
Person who holds both an Allowed Claim(s) or Allowed Equity Interest(s) and a
Disputed Claims(s) or Disputed Equity Interest(s) will receive the appropriate
payment or distribution on the Allowed Claims(s) or Allowed Equity Interest(s),
although no payment or distribution will be made on the Disputed Claim(s) or
Disputed Equity Interest(s) until such dispute is resolved by settlement or
Final Order.
ARTICLE IX
RELEASE AND RELATED PROVISIONS
A. Subordination.
9.01. The classification and manner of satisfying all Claims and Equity
Interests and the respective distributions and treatments under the Plan take
into account and/or conform to the relative priority and rights of the Claims
and Equity Interests in each Class in connection with any contractual, legal and
equitable subordination rights relating thereto, whether arising under general
principles of equitable subordination, section 510(b) of the Bankruptcy Code or
otherwise, and any and all such rights are settled, compromised and released
pursuant to the Plan. The Confirmation Order shall permanently enjoin, effective
as of the Effective Date, all Persons and entities from enforcing or attempting
to enforce any such contractual, legal and equitable subordination rights
satisfied, compromised and settled pursuant to this Section 9.01.
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B. Limited Release of Directors, Officers and Employees.
9.02. As of the Effective Date, the Debtors shall be deemed to have waived
and released their present and former directors, officers and employees from any
and all Causes of Action of the Debtors (including claims which the Debtors or
Debtors in Possession otherwise have legal power to assert, compromise or settle
in connection with the Chapter 11 Cases) arising on or prior to the Effective
Date; provided, however, that this provision shall not operate as a waiver or
release of any Cause of Action (i) in respect to any loan, advance or similar
payment by the Debtors to any such person or (ii) in respect of any contractual
obligation owed by such person to the Debtors.
C. Release in Respect of Becor Transactions and Certain Other Matters.
9.03. All payments and distributions received hereunder by Holders of
Allowed Claims against and Allowed Equity Interests in the Debtors or the
Reorganized Debtor shall be final and shall not be subject to avoidance,
disgorgement, reallocation or challenge in respect of all Causes of Action by
reason of, arising from, or in connection with or related in any way to the
Released Matters (as defined below). Except as provided in Sections 9.04 and
9.05, as of the Effective Date, the Debtors and the Reorganized Debtor
(collectively, the "Releasors") shall be deemed, for good and valuable
consideration, to have released and discharged all holders of Allowed Claims
against and all holders of Allowed Equity Interests in the Debtors or the
Reorganized Debtor, and any and all of their respective successors,
predecessors, assignors, assignees, parent, subsidiaries, stockholders,
affiliates, present and former directors, trustees, officers, employees, agents,
attorneys, accountants, investment bankers and financial advisors, and in the
case of a partnership, its present and former partners, and in the case of
individuals, their respective heirs, receivers, conservators, beneficiaries,
executors and administrators (and any other person who, within the meaning of
Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended,
"controls," is "controlled by" or is under "common control" with, any of such
persons), past or present, (collectively, the "Released Persons") from any and
all Causes of Action (including claims which the Debtors or Debtors in
Possession have legal power to assert, compromise or settle in connection with
the Chapter 11 Cases) any of the Releasors ever had, now has, hereafter can,
shall or may have against any of the Released Persons by reason of, arising from
or in connection with or related in any way to (i) the Becor Transactions, (ii)
the administration, collection or renegotiation of the Impaired Debt Securities,
(iii) the acquisition or disposition by any Released Person of, or any other
action taken or not taken by any Released Person in connection with, or the
status of any Released Person as a holder of, any indebtedness or equity or debt
securities of, the Debtors or the Reorganized Debtor or (iv) the restructuring
of the Claims and Equity Interests which are the subject of this Plan and the
negotiation, formulation or preparation of the Plan (items (i) through (iv) are
collectively referred to as the "Released Matters").
9.04 The release contained in Section 9.03 shall not apply to or otherwise
release any Cause of Action which a Releasor may have against the Broad Street
Fund, Goldman, the South Street Funds, Greycliff Partners, Ltd. or any of their
respective successors, predecessors, assignors, assignees, parent, subsidiaries,
stockholders, affiliates, present and former directors, trustees, officers,
employees, agents, attorneys, accountants, investment bankers and financial
advisors, and in the case of a partnership, its present and former partners, and
in the case of individuals, their respective heirs, receivers, conservators,
beneficiaries, executors and administrators (and any other person who, within
the meaning of Rule 12b-2 promulgated under the Securities Exchange Act of 1934,
as amended, "controls," is "controlled by" or is under "common control" with,
any of such persons), past or present, in each case acting in such capacity
(collectively, the "Non- Released Persons"), other than a Cause of Action
relating to an Allowed Claim or Allowed Equity Interest.
9.05. The release contained in Section 9.03 shall not extend to, affect,
release, modify or discharge any obligation under this Plan or under any
contract, instrument, release, indenture or other agreement entered into or
assumed in connection with this Plan.
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D. Preservation of Rights of Action.
9.06. Except as otherwise provided in the Plan or in any contract,
instrument, release, indenture or other agreement entered into in connection
with the Plan, in accordance with section 1123(b) of the Bankruptcy Code, the
Reorganized Debtor shall retain and may enforce any claims, rights and Causes of
Action that the Debtors or the Estates may hold against any entity. If the
Holder of the Allowed Class 4B Claim votes to accept the Plan on or prior to the
Voting Receipt Date, then after the Effective Date such Holder shall have the
exclusive right and authority, in its sole discretion, to do the following,
conditioned upon the execution and delivery by such Holder prior to the
Confirmation Date of an undertaking, in form and substance satisfactory to the
Debtors and the Creditors Committee, indemnifying and holding harmless the
Debtors and the Reorganized Debtor with respect to all claims, losses, expenses
and other liabilities arising from or related to such Holder's exercise of its
exclusive right and authority under Sections 8.02, 9.06 and 9.07:
(a) to exercise as a representative of the Debtors in Possession any
powers of the Debtors in Possession under section 544, 547 and 548 of the
Bankruptcy Code with respect to Non- Released Persons; and
(b) to pursue as a representative of the Debtors' Estates any claims,
rights or Causes of Action of the Debtors or the Debtors in Possession
existing on the Confirmation Date against Non-Released Persons, including
without limitation any Causes of Action against a Non- Released Person
arising from the exercise of the powers of the Debtors in Possession under
sections 544, 547 and 548 of the Bankruptcy Code.
The Reorganized Debtor may pursue as appropriate any other retained claims,
rights or Causes of Action (including claims, rights or Causes of Action that
the Holder of the Allowed Class 4B Claim does not have the right to pursue
pursuant to clauses (a) and (b) of this Section 9.06), in accordance with the
best interests of the Reorganized Debtor.
9.07. If the Holder of the Allowed Class 4B Claim votes to accept the Plan
on or prior to the Voting Receipt Date and executes and delivers the undertaking
described in Section 9.06, Confirmation will constitute appointment of the
Holder of the Allowed Class 4B Claim as the representative of the Debtors'
Estates for the purposes described in Section 9.06 pursuant to section
1123(b)(3)(B) of the Bankruptcy Code.
9.08. From and after the Confirmation Date, neither the Debtors nor the
Reorganized Debtor shall enter into or assume any contract, instrument, release,
indenture or other agreement in connection with the Plan or otherwise which
provides for the indemnification or holding harmless of any Non-Released Person
with respect to an objection to a Claim or Equity Interest or a Cause of Action
that the Holder of the Allowed Class 4B Claim has the exclusive right and
authority to pursue pursuant to Sections 8.02, 9.06 and 9.07.
9.09. Nothing in this Article IX shall affect any right of a Person to
assert allegations, seek discovery or offer evidence concerning the acts or
omissions of any Person occurring prior to the Petition Date in an action or
proceeding relating to a Cause of Action that is not released, satisfied,
compromised or settled pursuant to this Article IX.
ARTICLE X
REGISTRATION AND RELATED RIGHTS
10.01. Each recipient of ten percent (10%) or more of the New Bucyrus
Common Stock pursuant to this Plan shall have the benefit of the registration
and related rights set forth in the New Bucyrus Registration Rights Agreement,
subject to the restrictions and limitations set forth therein.
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<PAGE>
ARTICLE XI
CONDITIONS PRECEDENT TO CONFIRMATION
AND CONSUMMATION OF THE PLAN
A. Conditions Precedent to Confirmation.
11.01. It is a condition to Confirmation that the Bankruptcy Court shall
have entered an order or orders, which may be the Confirmation Order, approving
the Reorganization Documents, authorizing the Debtors and the Reorganized Debtor
to enter into the Reorganization Documents and the transactions contemplated
thereby.
11.02. It is a condition to Confirmation that, at the Debtors' option, the
New South Street Credit Agreement shall provide the Reorganized Debtor with a
term loan credit facility substantially in the amounts and on the terms and
conditions as set forth in the South Street Term Sheet.
B. Conditions Precedent to Consummation.
11.03. It is a condition to Consummation of the Plan that the Confirmation
Order shall have been entered.
C. Waiver of Conditions.
11.04. The Debtors may waive the condition set forth in Section 11.01 in a
writing executed by each of them.
ARTICLE XII
RETENTION OF JURISDICTION
12.01. Notwithstanding the entry of the Confirmation Order and the
occurrence of the Effective Date, the Bankruptcy Court shall retain such
jurisdiction over the Chapter 11 Cases after the Effective Date as legally
permissible, including such jurisdiction as the Bankruptcy Court had prior to
entry of the Confirmation Order, to:
(a) Allow, disallow, determine, liquidate, classify, estimate or establish
the priority of secured or unsecured status of any Claim, including the
resolution of any request for payment of any Administrative Claim and the
resolution of any and all objections to the allowance or priority of Claims;
(b) Grant or deny any applications for allowance of compensation or
reimbursement of expenses authorized pursuant to the Bankruptcy Code or the
Plan, for periods ending on or before the Effective Date;
(c) Resolve any matters related to the assumption, assumption and
assignment or rejection of any executory contract or unexpired lease to which a
Debtor is a party or with respect to which a Debtor may be liable and to hear,
determine and, if necessary, liquidate, any Claims arising therefrom, including
those matters related to the amendment after the Effective Date pursuant to
Article VI above to add any executory contracts or unexpired leases to the list
of executory contracts and unexpired leases to be rejected;
(d) Ensure that distributions to Holders of Allowed Claims and Allowed
Equity Interests are accomplished pursuant to the provisions of the Plan,
including ruling on any motion Filed pursuant to Article VIII;
29
<PAGE>
(e) Decide or resolve any motions, adversary proceedings, contested or
litigated matters and any other matters and grant or deny any applications
involving the Debtors that may be pending on the Effective Date;
(f) Enter such orders as may be necessary or appropriate to implement or
consummate the provisions of the Plan and all contracts, instruments, releases,
indentures and other agreements or documents created in connection with the Plan
or the Disclosure Statement, including to correct any defect, cure any omission
or reconcile any inconsistency, except as provided in Section 12.01(g) or
elsewhere herein;
(g) Resolve any cases, controversies, suits, or disputes that may arise in
connection with the Consummation, interpretation or enforcement of the Plan or
any Person's obligations incurred in connection with the Plan, except that such
retention of jurisdiction shall not apply to any cases, controversies, suits or
disputes that may arise in connection with the rights or obligations of the
Reorganized Debtor or any other Person as the issuer or a Holder, respectively,
of New Bucyrus Common Stock (other than the rights and obligations provided in
Section 5.04), or any other agreements governing, instruments evidencing or
documents relating to any of the foregoing, including the interpretation or
enforcement of any rights, remedies or obligations under any of the foregoing;
(h) Issue injunctions, enter and implement other orders or take such other
actions as may be necessary or appropriate to restrain interference by any
entity with Consummation or enforcement of the Plan, except as otherwise
provided herein;
(i) Enter and implement such orders as are necessary or appropriate if the
Confirmation Order is for any reason modified, stayed, reversed, revoked or
vacated;
(j) Determine any other matters that may arise in connection with or relate
to the Plan, the Disclosure Statement, the Confirmation Order or any contract,
instrument, release, indenture or other agreement or document created in
connection with the Plan or the Disclosure Statement, except as provided in
Section 12.01(g) or elsewhere herein; and
(k) Enter a Final Decree.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
A. Dissolution of Committee.
13.01. Upon completion of all distributions contemplated by the Plan, the
Creditors Committee shall dissolve and its members shall be released and
discharged from all rights and duties arising from, or related to, the Chapter
11 Cases.
B. Payment of Statutory Fees.
13.02. All fees payable pursuant to section 1930 of title 28 of the United
States Code, as determined by the Bankruptcy Court at the hearing pursuant to
section 1128 of the Bankruptcy Code, shall be paid on or before the Effective
Date.
C. No Interest.
13.03. Except as expressly stated in the Plan, or as allowed by the
Bankruptcy Court, no interest, penalty or late charge is to be allowed on any
Claim subsequent to the Petition Date.
D. Discharge of Debtors.
30
<PAGE>
13.04. Except as otherwise provided in the Plan or the Confirmation Order,
Confirmation shall (a) operate as a discharge, in accordance with section
1141(d)(1) of the Bankruptcy Code, effective as of the Effective Date, of any
and all debts (as such term is defined in section 101(12) of the Bankruptcy
Code) or Claims against the Debtors and the Reorganized Debtor that arose at any
time before the Effective Date, including, but not limited to, all principal and
interest, whether accrued before, on, or after the Petition Date and (b)
terminate all rights and interests of Holders of Old Bucyrus Common Stock,
Holdings Stock and Holdings Stock Options. On the Effective Date, as to every
discharged debt and Claim, the Holder of such debt or Claim shall be permanently
precluded from asserting against any of the Debtors, the Reorganized Debtor, or
against any of their respective assets or property, any other and further Claim
based upon any document, instrument or act, omission, transaction or other
activity of any kind or nature that occurred prior to the Effective Date.
Without limiting the generality of the foregoing, upon the Effective Date, the
Debtors and the Reorganized Debtor shall be discharged from any debt that arose
before the Effective Date, and any debt of a kind specified in sections 502(g),
502(h) or 502(i) of the Bankruptcy Code, to the full extent permitted by section
1141(d)(1)(A) of the Bankruptcy Code. Except as otherwise specifically provided
herein, nothing in the Plan shall be deemed to waive, limit or restrict in any
way the discharge granted upon Confirmation under section 1141 of the Bankruptcy
Code and effective as of the Effective Date.
E. Injunction.
13.05. On the Effective Date, all entities who have been, are, or may be
Holders of Allowed Claims or Allowed Equity Interests shall be enjoined from
taking any of the following actions against or affecting the Debtors, the
Reorganized Debtor or their respective Estates and property with respect to such
Allowed Claims or Allowed Equity Interests (other than actions brought to
enforce any rights or obligations under the Plan and appeals, if any, from the
Confirmation Order):
(a) commencing, conducting or continuing in any manner, directly or
indirectly, any suit, action or other proceeding of any kind against the
Debtors, the Reorganized Debtor or their respective Estates and property,
or any direct or indirect successor in interest to any of the Debtors or
the Reorganized Debtor, or any assets or property of such transferee or
successor;
(b) enforcing, levying, attaching, collecting or otherwise recovering
by any manner or means whether directly or indirectly any judgment, award,
decree or order against the Debtor, the Reorganized Debtor or their
respective Estates and property, or any direct or indirect successor in
interest to any of the Debtors or the Reorganized Debtor, or any assets or
property of such transferee or successor;
(c) creating, perfecting or otherwise enforcing in any manner,
directly or indirectly, any Lien against the Debtors, the Reorganized
Debtors or their respective Estates and property, or any direct or indirect
successor in interest to any of the Debtors or the Reorganized Debtor, or
any assets or property of such transferee or successor other than as
contemplated by the Plan;
(d) asserting any set-off, right of subrogation or recoupment of any
kind, directly or indirectly against any obligation due the Debtors, the
Reorganized Debtor or their respective Estates and property, or any direct
or indirect successor in interest to any of the Debtors or the Reorganized
Debtor, or any assets or property of such transferee or successor; and
(e) proceeding in any manner in any place whatsoever that does not
conform to or comply with the provisions of the Plan.
13.06. Except as provided herein, as of the Effective Date, all non-Debtor
entities are permanently enjoined from commencing or continuing in any manner,
any action or proceeding, whether directly, derivatively, on account of or
respecting any Claim, debt, right, Cause of Action or liability released or to
be released pursuant to Article IX.
31
<PAGE>
F. Modification of Plan.
13.07. The Debtors reserve the right, in accordance with the Bankruptcy
Code and the Bankruptcy Rules, to amend or modify the Plan prior to the entry of
the Confirmation Order. Without limiting the foregoing sentence, the Debtors
reserve the right to amend the Plan to eliminate any distribution under the Plan
to all Holders of Holdings Stock. Except as limited by Section 5.04(e), after
the entry of the Confirmation Order, the Debtors or the Reorganized Debtor, as
the case may be, may, upon order of the Bankruptcy Court, amend or modify the
Plan, in accordance with section 1127(b) of the Bankruptcy Code, or remedy any
defect or omission or reconcile any inconsistency in the Plan in such manner as
may be necessary to carry out the purpose and intent of the Plan.
G. Revocation of Plan.
13.08. The Debtors reserve the right, at any time prior to the entry of the
Confirmation Order, to revoke or withdraw the Plan. If the Debtors revoke or
withdraw the Plan, it shall be null and void and, in such event, nothing
contained herein shall be deemed to constitute a waiver or release of any Causes
of Action or Claims by or against the Debtors or any other entity or to
prejudice in any manner the rights of either of the Debtors or any entity in any
further proceeding involving a Debtor.
H. Rules of Interpretation.
13.09. For purposes of the Plan: (a) whenever from the context it is
appropriate, each term, whether defined in the singular or the plural, shall
include both the singular and the plural; (b) any reference in the Plan to a
contract, instrument, release, indenture or other agreement or document being in
a particular form or on particular terms and conditions means that such document
shall be substantially in such form or substantially on such terms and
conditions; (c) any reference in the Plan to an existing document or exhibit
Filed, or to be Filed, means such document or exhibit, as it may have been or
may be amended, modified or supplemented; (d) unless otherwise specified, all
references in the Plan to Sections, Articles and Exhibits are references to
Sections, Articles and Exhibits of or to the Plan; (f) captions and headings to
Articles and Sections are inserted for convenience of reference only and are not
intended to be a part of or affect the interpretation of the Plan; and (g) the
rules of construction set forth in section 102 of the Bankruptcy Code shall
apply.
I. Computation of Time.
13.10. In computing any period of time prescribed or allowed by the Plan,
the provisions of Bankruptcy Rule 9006(a) shall apply.
J. Governing Law.
13.11. Except to the extent that the Bankruptcy Code or the Bankruptcy
Rules are applicable, and subject to the provisions of any contract, instrument,
release, indenture or other agreement or documents entered into in connection
with the Plan, the rights and obligations arising under the Plan shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York, without giving effect to the principles of conflict of laws
thereof.
K. Severability.
13.12. Should the Bankruptcy Court determine, prior to the Confirmation
Date, that any provision of the Plan is illegal on its face or illegal as
applied to any Claim or Equity Interest, such provision shall be unenforceable
either as to all Holders of Claims or Equity Interests or as to the Holder of
such Claim or Equity Interest as to which such provision is unenforceable,
respectively. Such a determination of unenforceability shall in no way limit or
affect the enforceability or operative effect of any other provision of the
Plan.
32
<PAGE>
L. Successors and Assigns.
13.13. The rights, benefits and obligations of any entity named or referred
to in the Plan shall be binding on, and shall inure to the benefit of any heir,
executor, administrator, successor or assign of such entity.
Dated: September 19, 1994,
as modified December 1, 1994
B-E HOLDINGS, INC.
By:/s/ William B. Winter
-------------------------------------------
Title: Chairman and Chief Executive Officer
BUCYRUS-ERIE COMPANY
By:/s/ William B. Winter
-------------------------------------------
Title: Chairman and Chief Executive Officer
MILBANK, TWEED, HADLEY & McCLOY
By:/s/ John G. Gellene
-------------------------------------------
(A Member of the Firm)
1 Chase Manhattan Plaza
New York, New York 10005
(212) 530-5000
Reorganization Counsel for Bucyrus-Erie Company
HOWARD, SOLOCHEK & WEBER S.C.
By:/s/ Albert Solochek
-------------------------------------------
(A Member of the Firm)
324 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 272-0760
Reorganization Counsel for B-E Holdings, Inc.
33
<PAGE>
RESTATED BYLAWS
OF
BUCYRUS-ERIE COMPANY
Incorporated under the Laws of the State of Delaware
ARTICLE I
GENERAL
Section 1.1. Effectiveness of Bylaws. These Bylaws have been adopted in
accordance with the provisions of the Second Amended Joint Plan of
Reorganization of B-E Holdings, Inc. and Bucyrus-Erie Company (as amended,
modified or supplemented from time to time, the "Plan") under chapter 11 of
title 11, United States Code (the "Bankruptcy Code") in proceedings under
chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the
Eastern District of Wisconsin. These Bylaws shall constitute the Bylaws of the
Corporation and shall be effective for all purposes as of the Effective Date (as
defined in the Plan) of the Plan.
ARTICLE II
OFFICE AND RECORDS
Section 2.1. Delaware Office. The principal office of the Corporation in
the State of Delaware shall be located in the City of Wilmington, County of New
Castle, and the name and address of its registered agent is The Corporation
Trust Company, 1209 Orange Street, Wilmington, Delaware 19801.
Section 2.2. Other Offices. The Corporation may have such other offices,
either within or without the State of Delaware, as the Board of Directors may
designate or as the business of the Corporation may from time to time require.
Section 2.3. Books and Records. The books and records of the Corporation
may be kept at the Corporation's principal executive offices in South Milwaukee,
Wisconsin or at such other locations outside the State of Delaware as may from
time to time be designated by the Board of Directors.
<PAGE>
ARTICLE III
STOCKHOLDERS
Section 3.1. Annual Meeting. The annual meeting of the stockholders of the
Corporation shall be held on the last Wednesday in April of each year, if not a
legal holiday, and if a legal holiday then on the next succeeding business day,
at 1:00 p.m., local time, at the principal executive offices of the Corporation,
or at such other date, place and/or time as may be fixed by resolution of the
Board of Directors. The first annual meeting of stockholders following the
Effective Date will take place in 1996 following completion of the Corporation's
fiscal year ending December 31, 1995 at such time and place determined in
accordance with the immediately preceding sentence (the "1996 Annual Meeting").
Section 3.2. Special Meeting. Subject to the rights of the holders of any
series or class of stock as set forth in the Restated Certificate of
Incorporation of the Corporation (the "Certificate of Incorporation") to elect
additional directors under specified circumstances, special meetings of the
stockholders may be called only by the Chairman of the Board, by the Board of
Directors pursuant to a written request signed by not less than three directors
and delivered to the Secretary or by the President or the Secretary upon the
written request, stating the time, place, and the purpose or purposes of the
meeting, of stockholders who together own of record a majority of the
outstanding stock of all classes entitled to vote at such meeting.
Section 3.3. Place of Meeting. The Board of Directors may designate the
place of meeting for any meeting of the stockholders. If no designation is made
by the Board of Directors, the place of meeting shall be the principal executive
offices of the Corporation.
Section 3.4. Notice of Meeting. Written or printed notice, stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be prepared and delivered by the Corporation not less
than ten days nor more than sixty days before the date of the meeting, either
personally, or by mail, to each stockholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail with postage thereon prepaid, addressed to the
stockholder at his or her address as it appears on the stock transfer books of
the Corporation. Such further notice shall be given as may be required by law.
Meetings may be held without notice if all stockholders entitled to vote are
present, or if notice is waived as provided in Section 7.2 of these Bylaws. Any
previously scheduled meeting of the stockholders may be postponed by resolution
of the Board of Directors upon public notice given
<PAGE>
prior to the time previously scheduled for such meeting of stockholders.
Section 3.5. List of Stockholders. A complete list of the stockholders
entitled to vote at the ensuing election, arranged in alphabetical order, with
the address of each, and the number of shares held by each, shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
at the Corporation's principal executive offices. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 3.6. Quorum and Adjournment. Except as otherwise provided by law or
by the Certificate of Incorporation, the holders of a majority of the
outstanding shares of the Corporation entitled to vote generally in the election
of directors (the "Voting Stock"), represented in person or by proxy, shall
constitute a quorum at a meeting of stockholders, except that when specified
business is to be voted on by a class or series voting as a class, the holders
of a majority of the shares of such class or series shall constitute a quorum
for the transaction of such business. The chairman of the meeting or a majority
of the voting power of the shares of Voting Stock so represented may adjourn the
meeting from time to time, whether or not there is such a quorum (or in the case
of specified business to be voted on as a class or series, the chairman or a
majority of the shares of such class or series so represented may adjourn the
meeting with respect to such specified business). No notice of the time and
place of adjourned meetings need be given except as required by law. The
stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
Section 3.7. Proxies. At all meetings of stockholders, a stockholder may
vote by proxy executed in writing by the stockholder or as otherwise permitted
by law, or by his or her duly authorized attorney-in-fact. Such proxy must be
filed with the Secretary of the Corporation or his or her representative at or
before the time of the meeting.
Section 3.8. Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders. (1) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the stockholders may be made at an annual meeting
of stockholders (a) pursuant to the Corporation's notice of meeting delivered
pursuant to Section 3.4 of these Bylaws, (b) by or at the direction of the
Chairman of the Board or pursuant to a written request signed by not less than
three directors and delivered to
<PAGE>
the Secretary or (c) by any stockholder of the Corporation who is entitled to
vote at the meeting, who complied with the notice procedures set forth in
clauses (2) and (3) of paragraph (A) of this Bylaw and who was a stockholder of
record at the time such notice is delivered to the Secretary of the Corporation.
(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of
this Bylaw, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal executive offices of the Corporation
not less than seventy days nor more than ninety days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is advanced by more than twenty
days, or delayed by more than seventy days, from such anniversary date, notice
by the stockholder to be timely must be so delivered not earlier than the
ninetieth day prior to such annual meeting and not later than the close of
business on the later of the seventieth day prior to such annual meeting or the
tenth day following the day on which public announcement of the date of such
meeting is first made. Such stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected; (b) as to any other business that the stockholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (c) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner and (ii) the class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of
this Bylaw to the contrary, in the event that the number of directors to be
elected to the Board of Directors is increased and there is no public
announcement naming all of the nominees for director or specifying the size of
the increased Board of Directors made by the Corporation at least eighty days
prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Bylaw shall also be considered timely, but
only with respect to nominees for any
<PAGE>
new positions created by such increase, if it shall be delivered to the
Secretary at the principal executive offices of the Corporation not later than
the close of business on the tenth day following the day on which such public
announcement is first made by the Corporation.
(B) Special Meeting of Stockholders. Only such business shall be conducted
at a special meeting of stockholders as shall have been brought before the
meeting pursuant to the Corporation's notice of meeting pursuant to Section 3.4
of these Bylaws. Nominations of persons for election to the Board of Directors
may be made at a special meeting of stockholders at which directors are to be
elected pursuant to the Corporation's notice of meeting (i) by or at the
direction of the Board of Directors or (ii) by any stockholder of the
Corporation who is entitled to vote at the meeting, who complies with the notice
procedures set forth in this Bylaw and who is a stockholder of record at the
time such notice is delivered to the Secretary of the Corporation. Nominations
by stockholders of persons for election to the Board of Directors may be made at
such a special meeting of stockholders if the stockholder's notice as required
by paragraph (A)(2) of this Bylaw shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the ninetieth
day prior to such special meeting and not later than the close of business on
the later of the seventieth day prior to such special meeting or the tenth day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting.
(C) General. (1) Only persons who are nominated in accordance with the
procedures set forth in this Bylaw shall be eligible to serve as directors and
only such business shall be conducted at a meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this Bylaw. Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, the chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made in accordance with the procedures set forth
in this Bylaw and, if any proposed nomination or business is not in compliance
with this Bylaw, to declare that such defective proposal or nomination shall be
disregarded.
(2) For purposes of this Bylaw, "public announcement" shall mean disclosure
in a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Bylaw, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations
<PAGE>
thereunder with respect to the matters set forth in this Bylaw. Nothing in this
Bylaw shall be deemed to affect any rights (i) of stockholders to request
inclusion of proposals in the Corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act or (ii) of the holders of any series of Preferred
Stock to elect directors under specified circumstances.
Section 3.9. Procedure for Election of Directors; Required Vote. Other than
the election of directors at any meeting of stockholders of the Corporation held
prior to the annual meeting of stockholders to be held in 1997 (the "1997 Annual
Meeting"), which shall occur as provided in Section 5.04 of the Plan, election
of directors at all meetings of the stockholders at which directors are to be
elected shall be by written ballot, and except as otherwise set forth in the
Certificate of Incorporation with respect to the right of the holders of any
series or class of stock to elect additional directors under specified
circumstances, a plurality of the votes cast thereat shall elect the directors.
Except as otherwise provided by law, the Certificate of Incorporation or these
Bylaws, all matters other than the election of directors submitted to the
stockholders at any meeting shall be decided by a majority of the votes cast
with respect thereto. Prior to the 1997 Annual Meeting, this Section 3.9 of
these Bylaws shall not be amended, added to, rescinded or repealed.
Section 3.10. Inspectors of Elections; Opening and Closing the Polls.
(A) The Board of Directors by resolution shall appoint one or more
inspectors, which inspector or inspectors may include individuals who serve the
Corporation in other capacities, including, without limitation, as officers,
employees, agents or representatives of the Corporation, to act at the meeting
and make a written report thereof. One or more persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate has been appointed to act, or if all inspectors or alternates who
have been appointed are unable to act, at a meeting of stockholders, the
chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before discharging his or her duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors
shall have the duties prescribed by the General Corporation Law of the State of
Delaware (the "GCL").
(B) The chairman of the meeting shall fix and announce at the meeting the
time of the opening and the closing of the polls for each matter upon which the
stockholders will vote at a meeting.
Section 3.11. No Stockholder Action by Written Consent. Subject to the
rights of the holders of any series or
<PAGE>
class of stock as set forth in the Certificate of Incorporation to elect
additional directors under specific circumstances or to consent to specific
actions taken by the Corporation, any action required or permitted to be taken
by the stockholders of the Corporation must be effected at an annual or special
meeting of stockholders of the Corporation and may not be effected by any
consent in writing by such stockholders.
ARTICLE IV
BOARD OF DIRECTORS
Section 4.1. General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of its Board of Directors. In
addition to the powers and authorities by these Bylaws expressly conferred upon
them, the Board of Directors may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by law or by the Certificate of
Incorporation or by these Bylaws required to be exercised or done by the
stockholders.
Section 4.2. Number, Tenure and Qualifications. Subject to the rights of
the holders of any series or class of stock as set forth in the Certificate of
Incorporation to elect directors under specified circumstances, as provided in
Section 5.04(b) of the Plan from the Effective Date (as defined in the Plan)
until the 1997 Annual Meeting, the Board of Directors shall consist of seven
members, and thereafter the number of directors shall be fixed from time to time
by the Board of Directors, but shall consist of not more than fifteen nor less
than three directors. Upon the Effective Date, the Board of Directors shall
consist of those directors selected as provided in Section 5.04 of the Plan (the
"Original Directors"). Each Original Director shall hold office from and after
the Effective Date until the 1996 Annual Meeting, and from and after the 1996
Annual Meeting until the 1997 Annual Meeting as provided in Section 5.04 of the
Plan, and otherwise pursuant to the terms of the Certificate of Incorporation,
the Plan, these By-Laws and the GCL, and until their successors have been duly
elected, or appointed pursuant to Section 4.7(B) of these Bylaws and qualified.
Directors shall be elected annually and shall hold office from the time of such
director's election and qualification until their successors shall have been
duly elected and qualified. At each succeeding annual meeting of stockholders of
the Corporation beginning with the 1997 Annual Meeting, if authorized by a
resolution of the Board of Directors, directors may be elected to fill any
vacancy on the Board of Directors, regardless of how such vacancy shall have
been created. Prior to the 1997 Annual Meeting, this Section 4.2 of these Bylaws
shall not be amended, added to, rescinded or repealed except (x) by resolution
of the Board of Directors increasing the number of directors passed at a meeting
thereof by not less than two-thirds of the number of directors fixed from time
to time by these Bylaws, or (y) by resolution of
<PAGE>
the Board of Directors increasing the number of directors passed at a meeting
thereof in connection with any transaction involving the Corporaiton that
requires approval of the stockholders of the Corporation under the GCL and that
is approved at such meeting, provided that in either case notice of the proposed
change was given in a notice given no less than twenty-four hours prior to the
meeting.
Section 4.3. Regular Meetings. A regular meeting of the Board of Directors
shall be held without notice other than this Bylaw immediately after the Annual
Meeting of Stockholders at the principal executive offices of the Corporation or
at such other place as may be fixed by resolution of the Board of Directors. The
Board of Directors may, by resolution, provide the time and place for the
holding of additional regular meetings without notice other than such
resolution.
Section 4.4. Special Meetings. Special meetings of the Board of Directors
shall be called at the request of the Chairman of the Board, the President or
not less than three directors. The person or persons authorized to call special
meetings of the Board of Directors may fix the place and time of the meetings.
Section 4.5. Notice. Notice of any special meeting shall be given to each
director at his or her business or residence in writing by hand delivery,
overnight mail, courier service, telegram or facsimile transmission or orally by
telephone communication. If by telegram, overnight mail, or courier service such
notice shall be deemed adequately delivered when the telegram is delivered to
the telegraph company or its notice is delivered to the overnight mail or
courier service company at least twenty-four hours before such meeting. If by
facsimile transmission, such notice shall be deemed adequately delivered when
the notice is transmitted at least twenty-four hours before such meeting. If by
telephone or by hand delivery, the notice shall be given at least twelve hours
prior to the time set for the meeting. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Board of Directors
need be specified in the notice of such meeting, except for amendments to these
Bylaws as provided under Section 9.1 of these Bylaws. A meeting may be held at
any time without notice if all the directors are present or if those not present
waive notice of the meeting as provided in Section 7.4 of these Bylaws.
Section 4.6. Quorum. A majority of the Board of Directors shall constitute
a quorum for the transaction of business, but if at any meeting of the Board of
Directors there shall be less than a quorum present, a majority of the directors
present may adjourn the meeting from time to time without further notice. The
act of the majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors. The directors present at a
duly organized
<PAGE>
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough directors to leave less than a quorum.
Section 4.7. Vacancies; Vacancies Prior to the 1997 Annual Meeting.
(A) Subject to the rights of the holders of any series or class of stock as
set forth in the Certificate of Incorporation to elect additional directors
under specified circumstances, and unless the Board of Directors otherwise
determines, vacancies resulting from death, resignation, retirement,
disqualification, removal from office or other cause, and newly created
directorships resulting from any increase in the authorized number of directors,
may be filled only by the affirmative vote of a majority of the remaining
directors, though less than a quorum of the Board of Directors, and directors so
chosen shall hold office for a term expiring at the annual meeting of
stockholders at which the term of office of the class to which they have been
elected expires and until such director's successor shall have been duly elected
and qualified. No decrease in the number of authorized directors shall shorten
the term of any incumbent director.
(B) Notwithstanding the provisions of Section 4.7(A) of these Bylaws, if
prior to the 1997 Annual Meeting, there shall be a vacancy in the Board of
Directors resulting from the death, resignation, retirement or removal for cause
(an "Original Director Vacancy Event") of any Original Director, the provisions
of this Section 4.7(B) of these Bylaws shall govern the appointment of a
successor to fill the remainder of the original unexpired term of office of such
Original Director. If an Original Director Vacancy Event shall occur in respect
of an Original Director (or any successor thereto) prior to the 1997 Annual
Meeting who is: (i) a director nominated by the Board of Directors of the
Corporation prior to the Effective Date of the Plan, the Board of Directors
shall appoint an officer of the Corporation who served in such capacity prior to
the Effective Date of the Plan, or, in the absence of any such person, an
officer of the Corporation then serving in such capacity; (ii) a director
selected by the Holder of the Allowed Class 4B Claim (as defined in the Plan) (a
"Class 4B Director") the remaining Class 4B Directors (or their successors)
shall appoint the successor to such Class 4B Director, provided, however, if an
Original Director Vacancy Event occurs in respect of (x) both Class 4B Directors
or (y) the remaining Class 4B Director prior to the appointment of a successor
to the other Class 4B Director, then, if at the time the Original Director
Vacancy Event described in sub-clause (x) or (y) occurs, Jackson National Life
Insurance Company owns (1) 30% or more of the then issued and outstanding shares
of Common Stock, the President of Jackson National Life Insurance Company shall
appoint successors to such Class 4B Directors or (2) less than 30% of the then
issued and outstanding shares of Common Stock, a majority of the remaining
Original
<PAGE>
Directors shall appoint successors to such Class 4B Directors; or (iii) a
director selected by the Creditors Committee (as defined in the Plan) (a
"Committee Director") the remaining Committee Directors (or successors) shall
appoint the successor to such Committee Director, provided, however, if an
Original Director Vacancy Event occurs in respect of (x) all Committee Directors
or (y) the remaining Committee Director prior to the appointment of a successor
to the other Committee Director, a majority of the remaining Original Directors
shall appoint successors to such Committee Directors. Prior to the 1997 Annual
Meeting, this Section 4.7(B) of these Bylaws shall not be amended, added to,
rescinded or repealed.
Section 4.8. Committees of the Board of Directors. The Board of Directors
may from time to time, by resolution passed by a majority of the Board of
Directors, designate one or more committees, each committee to consist of one or
more directors of the Corporation. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. Any such committee, to
the extent provided in the resolution of the Board of Directors, shall have and
may exercise such powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation as provided in such
resolution, and may authorize the seal of the Corporation to be affixed to all
papers which may require it, except as otherwise provided by law. Unless the
resolution of the Board of Directors expressly so provides, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock. Any such committee may adopt rules governing the method of
calling and time and place of holding its meetings. Unless otherwise provided by
the Board of Directors, a majority of any such committee (or the member thereof,
if only one) shall constitute a quorum for the transaction of business, and the
vote of a majority of the members of such committee present at a meeting at
which a quorum is present shall be the act of such committee. Each such
committee shall keep a record of its acts and proceedings and shall report
thereon to the Board of Directors whenever requested so to do. Any or all
members of any such committee may be removed, with or without cause, by
resolution of the Board of Directors, passed by a majority of the Board of
Directors.
Section 4.9. Removal. Any director may be removed from office at any time,
but only for cause or otherwise pursuant to the GCL. Prior to the 1997 Annual
Meeting, this Section 4.9 of these Bylaws shall not be amended, added to,
rescinded or repealed.
Section 4.10. Action by Consent of Board of Directors. Any action required
or permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board of
Directors or
<PAGE>
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
Section 4.11. Conference Telephone Meetings. Members of the Board of
Directors, or any committee thereof, may participate in a meeting of the Board
of Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 4.12. Records. The Board of Directors shall cause to be kept a
record containing the minutes of the proceedings of the meetings of the Board of
Directors and of the stockholders, appropriate stock books and registers and
such books of records and accounts as may be necessary for the proper conduct of
the business of the Corporation.
ARTICLE V
OFFICERS
Section 5.1. Elected Officers. The elected officers of the Corporation
shall be a Chairman of the Board, a President, one or more Vice Presidents, a
Secretary, a Treasurer and a Controller, and such other officers, as the Board
of Directors from time to time may deem proper. The Chairman of the Board shall
be chosen from the directors. All officers chosen by the Board of Directors
shall each have such powers and duties as generally pertain to their respective
offices, subject to the specific provisions of this Article V. Such officers
shall also have such powers and duties as from time to time may be conferred by
the Board of Directors. The Board of Directors may from time to time elect, or
the Chairman of the Board or the President may appoint, such other officers
(including one or more Assistant Vice Presidents, Assistant Secretaries,
Assistant Treasurers, and Assistant Controllers) and such agents, as may be
necessary.
Section 5.2. Election and Term of Office. The elected officers of the
Corporation shall be elected annually by the Board of Directors at the regular
meeting of the Board of Directors held after each annual meeting of the
stockholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as convenient. Subject to Section
5.13 of these Bylaws, each officer shall hold office until his or her successor
shall have been duly elected and shall have qualified or until his or her death
or until such officer shall resign.
Section 5.3. Chairman of the Board. The Chairman of the Board shall preside
at all meetings of the stockholders and
<PAGE>
of the Board of Directors and shall be the Chief Executive Officer. The Chairman
of the Board shall be responsible for the general management of the affairs of
the Corporation, shall make reports to the Board of Directors and the
stockholders and shall perform all duties incidental to such office which may be
required by law and all such other duties as are properly required by the Board
of Directors. The Chairman of the Board may employ and discharge employees and
agents of the Corporation, except such as shall be elected or appointed by the
Board of Directors, and he may delegate these powers. The Chairman of the Board
shall also have such other powers and duties as may be delegated to him by the
Board of Directors. The Chairman of the Board shall see that all orders and
resolutions of the Board of Directors and of any committee thereof are carried
into effect. The Chairman of the Board may sign, alone or with the Secretary or
any other proper officer of the Corporation authorized by the Board of
Directors, certificates, contracts, and other instruments of the Corporation as
authorized by the Board of Directors.
Section 5.4. President. The President shall act in a general executive
capacity and shall assist the Chairman of the Board in the administration and
operation of the Corporation's business and general supervision of its policies
and affairs and shall have such other powers and duties as may from time to time
be prescribed by the Bylaws, by Resolution of the Board of Directors or by the
Chairman of the Board. The President shall, in the absence of or because of the
inability to act of the Chairman of the Board, perform all of the duties and may
exercise all of the powers of the Chairman of the Board and shall preside at all
meetings of stockholders and of the Board of Directors. The President may sign,
alone or with the Secretary or any other proper officer of the Corporation
authorized by the Board of Directors, certificates, contracts, and other
instruments of the Corporation as authorized by the Board of Directors.
Section 5.5. Vice President. Each Vice President shall have such powers and
perform such duties as may be prescribed by the Bylaws, by Resolution of the
Board of Directors or by the Chairman of the Board. The performance of any duty
by a Vice President shall, in respect of any other person dealing with the
Corporation, be conclusive evidence of his power to act. Any Vice President may,
by Resolution of the Board of Directors, be designated an Executive Vice
President or a Senior Vice President.
Section 5.6. Secretary. The Secretary shall give, or cause to be given,
notice of all meetings of stockholders and directors and all other notices
required by law or by these Bylaws, and in case of absence or refusal or neglect
so to do, any such notice may be given by any person thereunto directed by the
Chairman of the Board, the President, or the Board of Directors, upon whose
request the meeting is called as provided in these Bylaws. The Secretary shall
record or cause to be
<PAGE>
recorded all the proceedings of the meetings of the Board of Directors, any
committees thereof and the stockholders of the Corporation in a book to be kept
for that purpose, and shall perform such other duties as may be assigned by the
Board of Directors, the Chairman of the Board or the President. The Secretary
shall have the custody of the seal of the Corporation and shall affix the same
to all instruments requiring it, when authorized by the Board of Directors, the
Chairman of the Board or the President, and attest to the same. The Secretary
shall have charge of the stock ledger and such other books and papers as the
Board of Directors may direct. The Secretary shall have all such further powers
and duties as generally are incident to the office of Secretary or as may be
prescribed by the Bylaws, by Resolution of the Board of Directors or by the
Chairman of the Board.
Section 5.7. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the Corporation. The Treasurer
shall deposit all moneys and other valuables in the name and to the credit of
the Corporation in such depositaries as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, the Chairman of the Board or the President,
taking proper vouchers for such disbursements. The Treasurer shall render to the
Chairman of the Board, the President and the Board of Directors, whenever
requested, an account of all transactions engaged in as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors,
the Treasurer shall give the Corporation a bond for the faithful discharge of
duties in such amount and with such surety as the Board of Directors shall
prescribe. The Treasurer shall have all such further powers and duties as
generally are incident to the office of Treasurer or as may be prescribed by the
Bylaws, by Resolution of the Board of Directors, or by the Chairman of the
Board.
Section 5.8. Controller. The Controller shall be the principal officer in
charge of the accounts of the Corporation. The Controller shall render to the
Board of Directors and the Chairman of the Board regularly and whenever
otherwise required an account of the operation and financial condition of the
Corporation. The Controller shall perform all the duties incidental to the
office of Controller, and shall have such other powers and duties as may be
prescribed by the Bylaws, by Resolution of the Board of Directors, or by the
Chairman of the Board.
Section 5.9. Assistant Treasurer. In the absence or inability to act of the
Treasurer, any duly appointed Assistant Treasurer may perform all the duties and
exercise all the powers of the Treasurer. The performance of any such duty
shall, in respect of any other person dealing with the Corporation, be
conclusive evidence of his power to act. An Assistant Treasurer
<PAGE>
shall also perform such other duties as the Treasurer or the Chairman of the
Board may assign to him.
Section 5.10. Assistant Controllers. In the absence or inability to act of
the Controller, any duly appointed Assistant Controller may perform all of the
duties and exercise all the powers of the Controller. The performance of any
such duty shall, in respect of any other person dealing with the Corporation, be
conclusive evidence of his power to act. An Assistant Controller shall perform
such other duties as the Controller or the Chairman of the Board may assign to
him.
Section 5.11. Assistant Secretaries. In the absence or inability to act of
the Secretary, any duly appointed Assistant Secretary may perform all the duties
and exercise all the powers of the Secretary. The performance of any such duty
shall, in respect of any other person dealing with the Corporation, be
conclusive evidence of his power to act. An Assistant Secretary shall also
perform such other duties as the Secretary or the Chairman of the Board may
assign to him.
Section 5.12. Removal. Any officer elected by the Board of Directors may be
removed by a majority of the members of the Board of Directors whenever, in
their judgment, the best interests of the Corporation would be served thereby.
Any officer or agent appointed by the Chairman of the Board or the President may
be removed by him whenever, in his judgment, the best interests of the
Corporation would be served thereby. No elected officer shall have any
contractual rights against the Corporation for compensation by virtue of such
election beyond the date of such officer's death, resignation, removal or the
election of such officer's successor, whichever event shall first occur, except
as otherwise provided in an employment contract or an employee plan.
Section 5.13. Vacancies. A newly created office and a vacancy in any office
because of death, resignation or removal may be filled by the Board of Directors
for the unexpired portion of the term at any meeting of the Board of Directors.
Any vacancy in an office appointed by the Chairman of the Board or the President
because of death, resignation or removal may be filled by the Chairman of the
Board or the President.
ARTICLE VI
STOCK CERTIFICATES AND TRANSFERS
Section 6.1. Stock Certificates and Transfers.
(A) The interest of each stockholder of the Corporation shall be evidenced
by certificates for shares of stock in such form as the appropriate officers of
the Corporation may from time to time prescribe. The shares of the stock of the
<PAGE>
Corporation shall be transferred on the books of the Corporation by the holder
thereof in person or by the holder's attorney, upon surrender for cancellation
of certificates for the same number of shares, with an assignment and power of
transfer endorsed thereon or attached thereto, duly executed, with such proof of
the authenticity of the signature as the Corporation or its agents may
reasonably require.
(B) The certificates of stock shall be signed, countersigned and registered
in such manner as the Board of Directors may by resolution prescribe, which
resolution may permit all or any of the signatures on such certificates to be in
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate has ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if such officer,
transfer agent or registrar were such officer, transfer agent or registrar at
the date of issue.
Section 6.2. Lost, Stolen or Destroyed Certificates. No certificate for
shares of stock in the Corporation shall be issued in place of any certificate
alleged to have been lost, destroyed or stolen, except on production of such
evidence of such loss, destruction or theft and on delivery to the Corporation
of a bond of indemnity in such amount, upon such terms and secured by such
surety, as the Board of Directors or any authorized officer may in its or his
discretion require.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1. Fiscal Year. The fiscal year of the Corporation shall begin on
the first day of January and end on the thirty-first day of December of each
year.
Section 7.2. Dividends. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law and the Certificate of
Incorporation.
Section 7.3. Seal. The seal of the Corporation shall be circular in form
and shall bear, in addition to any other emblem or device approved by the Board
of Directors, the name of the Corporation, the year of its incorporation and the
words "Corporate Seal" and "Delaware". The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any other manner reproduced.
Section 7.4. Waiver of Notice. Whenever any notice is required to be given
to any stockholder or director of the Corporation under the provisions of the
GCL, a waiver thereof in
<PAGE>
writing, signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
such notice. Neither the business to be transacted at, nor the purpose of, any
annual or special meeting of the stockholders of the Board of Directors need be
specified in any waiver of notice of such meeting.
Section 7.5. Audits. The accounts, books and records of the Corporation
shall be audited upon the conclusion of each fiscal year by an independent
certified public accountant selected by the Board of Directors, and it shall be
the duty of the Board of Directors to cause such audit to be made annually.
Section 7.6. Resignations. Any Director or any officer, whether elected or
appointed, may resign at any time by serving written notice of such resignation
on the Chairman of the Board, the President or the Secretary, and such
resignation shall be deemed to be effective when said notice is received by the
Chairman of the Board, the President or the Secretary or at such later date as
is stated therein. No formal action shall be required of the Board of Directors
or the stockholders to make any resignation effective.
Section 7.7. Indemnification and Insurance. (A) Each person who was or is
made a party or is threatened to be made a party to or is otherwise involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
or a person of whom he or she is the legal representative is or was a director
or officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of any other corporation
or of a partnership, joint venture, trust or other enterprise, including service
with respect to any employee benefit plan (hereinafter an "indemnitee"), whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the GCL as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including, without
limitation, attorneys' fees, judgments, fines, excise taxes or penalties under
the Employee Retirement Income Security Act of 1974, as amended, and amounts
paid or to be paid in settlement) reasonably incurred by such indemnitee in
connection therewith; provided, however, that, except as provided in paragraph
(C) of this Bylaw with respect to proceedings seeking to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such indemnitee only if
<PAGE>
such proceeding (or part thereof) was authorized by the Board of Directors.
(B) The right to indemnification conferred in paragraph (A) of this Bylaw
shall include the right to be paid by the Corporation the expenses (including
attorneys' fees) incurred in defending any such proceeding in advance of its
final disposition (hereinafter an "advancement of expenses"); provided, however,
that, if the GCL requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
paragraph (B) or otherwise.
(C) If a claim under paragraphs (A) or (B) of this Bylaw is not paid in
full by the Corporation within thirty days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty days, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any
such suit, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (i) any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by the
indemnitee to enforce a right of an advancement of expenses) it shall be a
defense that, and (ii) in any suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the GCL. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the GCL, nor an actual determination
by the Corporation (including its Board of Directors, independent legal counsel
or stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving
<PAGE>
that the indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Bylaw or otherwise shall be on the Corporation.
(D) The right to indemnification and the advancement of expenses conferred
in this Bylaw shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, provision of these Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
(E) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the GCL.
(F) The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification, and rights to the
advancement of expenses, to any employee or agent of the Corporation to the
fullest extent of the provisions of this Bylaw with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
(G) The rights to indemnification and to the advancement of expenses
conferred in paragraphs (A) and (B) of this Bylaw shall be contract rights and
such rights shall continue as to an indemnitee who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the indemnitee's
heirs, executors and administrators.
ARTICLE VIII
CONTRACTS, PROXIES, ETC.
Section 8.1. Contracts. Except as otherwise required by law, the
Certificate of Incorporation or these By-Laws, any contracts or other
instruments may be executed and delivered in the name and on the behalf of the
Corporation by such officer or officers of the Corporation as the Board of
Directors may from time to time direct. Such authority may be general or
confined to specific instances as the Board may determine. The Chairman of the
Board, the President or any Vice President may execute bonds, contracts, deeds,
leases and other instruments to be made or executed for or on behalf of the
Corporation. Subject to any restrictions imposed by the Board of Directors, the
Chairman of the Board or the President may delegate contractual powers to others
under such officer's jurisdiction, it being understood, however, that any such
delegation of power shall not relieve such
<PAGE>
officer of responsibility with respect to the exercise of such delegated power.
Section 8.2. Proxies. Unless otherwise provided by resolution adopted by
the Board of Directors, the Chairman of the Board, the President or the Vice
President-Finance may from time to time appoint an attorney or attorneys or
agent or agents of the Corporation, to cast the votes which the Corporation may
be entitled to cast as the holder of stock or other securities in any other
corporation, any of whose stock or other securities may be held by the
Corporation, at meetings of the holders of the stock or other securities of such
other corporation, or to consent in writing, in the name of the Corporation as
such holder, to any action by such other corporation, and may instruct the
person or persons so appointed as to the manner of casting such votes or giving
such consent, and may execute or cause to be executed in the name and on behalf
of the Corporation and under its corporate seal or otherwise, all such written
proxies or other instruments as he may deem necessary or proper in the premises.
ARTICLE IX
AMENDMENTS
Section 9.1. Amendments. Except as these Bylaws may expressly provide to
the contrary, these Bylaws may be amended, added to, rescinded or repealed at
any meeting of the Board of Directors or of the stockholders, provided notice of
the proposed change was given in the notice of the meeting and, in the case of
the Board of Directors, in a notice given no less than twenty-four hours prior
to the meeting.
<PAGE>
State of Delaware
Office of the Secretary of State
---------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"B-E HOLDINGS, INC." A DELAWARE CORPORATION
WITH AND INTO "BUCYRUS-ERIE COMPANY" UNDER THE NAME OF "BUCYRUS-ERIE
COMPANY", A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF
DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE FOURTEENTH DAY OF DECEMBER,
A.D. 1994, AT 12:30 O'CLOCK P.M.
/s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
Authentication: 7338452
Date: 12/14/94
<PAGE>
CERTIFICATE OF MERGER
OF
B-E HOLDINGS, INC.
(a Delaware corporation)
INTO
BUCYRUS-ERIE COMPANY
(a Delaware corporation)
***********
The undersigned corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware (the "DGCL") does hereby
certify:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the merger (the "Merger") is as follows:
NAME STATE OF INCORPORATION
---- ----------------------
B-E Holdings, Inc. Delaware
Bucyrus-Erie Company Delaware
SECOND: That an Agreement and Plan of Merger between the parties to the
Merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 and 303 of the DGCL.
THIRD: That the name of the surviving corporation is Bucyrus-Erie Company.
<PAGE>
FOURTH: That the Restated Certificate of Incorporation of Bucyrus-Erie
Company shall be the Restated Certificate of Incorporation of Bucyrus-Erie
Company, as amended, attached hereto as Exhibit A.
FIFTH: That the executed Agreement and Plan of Merger is on file at the
principal place of business of the surviving corporation. The address of said
principal place of business is 1100 Milwaukee Avenue, South Milwaukee, Wisconsin
53172.
SIXTH: That a copy of the Agreement and Plan of Merger will be furnished by
the surviving corporation, on request and without cost, to any stockholder of
any constituent corporation.
Dated: December 14, 1994 BUCYRUS-ERIE COMPANY
By:/s/ Phillip W. Mork
-------------------
Phillip W. Mork
President
ATTEST:
By:/s/ David M. Goelzer
--------------------
David M. Goelzer
Secretary
<PAGE>
EXHIBIT A
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION
OF
BUCYRUS-ERIE COMPANY
ARTICLE I - NAME
The name of the corporation (which is hereinafter referred to as the
"Corporation") is:
Bucyrus-Erie Company
ARTICLE II - REGISTERED OFFICE
The address of the Corporation's registered office in the State of Delaware
is The Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801,
County of New Castle. The name of the Corporation's registered agent at such
address is The Corporation Trust Company.
ARTICLE III - PURPOSE
The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized and incorporated under the
General Corporation Law of the State of Delaware.
ARTICLE IV - STOCK
(A) Authorized Stock. The total number of shares of stock which the
Corporation shall have authority to issue is Twenty Million (20,000,000) shares
of Common Stock, par value $.01 per share (hereinafter referred to as "Common
Stock").
(B) Restriction on Issuance of Non-Voting Shares of Capital Stock. The
Corporation shall not issue any non-voting equity securities; provided, however,
that this provision included in this Restated Certificate of Incorporation in
compliance with Section 1123(a)(6) of Title 11, United States Code (the
"Bankruptcy Code") shall have no force and effect beyond that required by
Section 1123(a)(6) of the Bankruptcy Code and shall be effective only for so
long as Section 1123(a)(6) of the Bankruptcy Code is in effect and applicable to
the Corporation.
<PAGE>
(C) Record Holders. The Corporation shall be entitled to treat the person
in whose name any share of its stock is registered as the owner thereof for all
purposes and shall not be bound to recognize any equitable or other claim to, or
interest in, such share on the part of any other person, whether or not the
Corporation shall have notice thereof, except as may be required by law.
ARTICLE V - BYLAWS
(A) In furtherance of, and not in limitation of, the powers conferred by
law, the Board of Directors is expressly authorized and empowered to adopt,
amend or repeal the Bylaws of the Corporation, provided, however, that (i)
Sections 3.9, 4.2, 4.7(B) and 4.9 of the Bylaws shall not be amended, altered,
changed or repealed prior to the annual meeting of the stockholders of the
Corporation to be held in 1997 except as provided in the Bylaws as in effect
immediately after the "Effective Date" of the Plan (as defined in the Plan) and
(ii) the Bylaws adopted by the Board of Directors under the powers hereby
conferred may be altered, amended or repealed by the Board of Directors or by
the stockholders having voting power with respect thereto.
(B) The Corporation may in its Bylaws confer powers upon the Board of
Directors in addition to the foregoing and in addition to the powers and
authorities expressly conferred upon the Board of Directors by law.
ARTICLE VI - MEETINGS OF STOCKHOLDERS
Subject to the rights of the holders of any series or class of stock as set
forth in the Certificate of Incorporation to elect additional directors under
specific circumstances or to consent to specific actions taken by the
Corporation, any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing in lieu of a meeting of such stockholders.
ARTICLE VII - DIRECTORS
(A) Subject to the rights of the holders of any series or class of stock to
elect additional directors under specific circumstances, the number of directors
of the Corporation shall be fixed by the Bylaws of the Corporation and may be
increased or
<PAGE>
decreased from time to time in such a manner as may be prescribed by the Bylaws;
provided, however, that, except as provided in the Bylaws of the Corporation in
effect immediately after the "Effective Date" of the Plan (as defined in the
Plan), the number of directors shall not be increased or decreased prior to the
annual meeting of the stockholders of the Corporation to be held in 1997.
(B) Unless and except to the extent that the Bylaws of the Corporation
shall so require, the election of directors of the Corporation need not be by
written ballot.
(C) Subject to the rights of the holders of any series or class of stock as
set forth in the Certificate of Incorporation to elect additional directors
under specific circumstances, any director may be removed from office at any
time, but only for cause or otherwise to the extent required by the GCL.
ARTICLE VIII - LIABILITY OF DIRECTORS
No director of the Corporation shall be personally liable to the
Corporation or any stockholder for monetary damages for breach of fiduciary duty
as a director, except for any matter in respect of which such director (a) shall
be liable under Section 174 of the GCL or any amendment or successor provisions
thereto or (b) shall be liable by reason that, in addition to any and all other
requirements for such liability, he (i) shall have breached his duty of loyalty
to the Corporation or its stockholders, (ii) shall not have acted in good faith
or, in failing to act, shall not have acted in good faith, (iii) shall have
acted in a manner involving intentional misconduct or a knowing violation of
law, or, in failing to act, shall have acted in a manner involving intentional
misconduct or a knowing violation of law, or (iv) shall have derived from any
transaction an improper personal benefit. Neither the amendment nor repeal of
this Article VIII, nor the adoption of any provision of the Certificate of
Incorporation, shall eliminate or otherwise adversely affect the rights and
protections of a director under this Article VIII in respect of any matter
occurring, or any cause of action, suit or claim that, but for this Article
VIII, would accrue or arise prior to such amendment, repeal or adoption.
<PAGE>
ARTICLE IX - AMENDMENTS
Except as may be expressly provided in this Certificate of Incorporation,
the Corporation reserves the right at any time and from time to time to amend,
alter, change or repeal any provision contained in this Certificate of
Incorporation, and any other provisions authorized by the laws of the State of
Delaware at the time in force may be added or inserted, in the manner now or
hereafter prescribed herein or by law, and all powers, preferences and rights of
whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Certificate of Incorporation in its present
form or as hereafter amended are granted subject to the right reserved in this
Article IX. Article V(A), Article VII(A), Article VII(C) and this Article IX
shall not be amended, altered, changed or repealed prior to the annual meeting
of the stockholders of the Corporation to be held in 1997.
<PAGE>
Exhibit A to
Restated Certificate of
Incorporation
Confirmation Order
<PAGE>
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
In re
Chapter 11
B-E HOLDINGS, INC. and Case Nos. 94-20786-RAE
94-20787-RAE
BUCYRUS-ERIE COMPANY,
Jointly Administered
Debtors.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
ORDER CONFIRMING DEBTORS' SECOND
AMENDED JOINT PLAN OF REORGANIZATION
AS MODIFIED DECEMBER 1, 1994
The Debtors' Second Amended Joint Plan of Reorganization filed by B-E
Holdings, Inc. and Bucyrus-Erie Company dated September 19, 1994 and as modified
December 1, 1994 (the "Amended Plan"); having been transmitted to creditors and
equity interest holders holding impaired claims and equity interests; and
It having been determined after hearing on notice that the requirements for
confirmation of the Amended plan set forth in 11 U.S.C. ss. 1129(b) have been
satisfied;
John G. Gellene
Frederick D. Hyman
Milbank, Tweed, Hadley, & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
Telephone: (212) 530-5000
Telecopier: (212) 530-5219
Albert Solochek
C. Scott Pryor
Howard, Solochek & Weber, S.C.
<PAGE>
324 E. Wisconsin Avenue, Suite 1100
Milwaukee, Wisconsin 53202
Telephone: (414) 272-0760
Telecopier: (414) 272-7265
IT IS ORDERED that the Amended Plan is confirmed. A copy of the confirmed
Amended Plan is attached.
Dated: Milwaukee, Wisconsin
December 2, 1994
/s/ Russell B. Eisenberg
------------------------------
United States Bankruptcy Judge
<PAGE>
For Amended Plan, see Exhibit (1) hereto.
<PAGE>
JACKSON NATIONAL LIFE INSURANCE COMPANY
JACKSON NATIONAL LIFE INSURANCE COMPANY of MICHIGAN
BROOKE LIFE INSURANCE COMPANY
PPM AMERICA, INC.
DISCRETIONARY INVESTMENT
MANAGEMENT AGREEMENT
PPM America, Inc., a Delaware corporation ("Adviser"), and Jackson National
Life Insurance Company, Jackson National Life Insurance Company of Michigan, and
Brooke Life Insurance Company, Michigan corporations (collectively the
"Client"), hereby agrees that Adviser shall act as investment manager with
respect to the Portfolio, as defined herein, on the following terms and
conditions:
1. Portfolio. The Portfolio shall consist of such cash, stocks, bonds,
options and other securities or other assets ("Securities") which, from time to
time, the Client places under the supervision of Adviser or which become part of
the Portfolio as a result of investment activity or otherwise (the "Portfolio").
The Client may make additions to and withdrawals from the Portfolio at any time
in such amounts as the Client shall determine.
2. Discretionary Authority.
a. Adviser shall have full discretion and authority, without obtaining any
prior approval, as the Client's agent and attorney-in-fact, and at the Client's
expense, (i) to make all investment decisions in respect of the Portfolio; (ii)
to buy, sell and otherwise trade in Securities in respect of the Portfolio;
(iii) to place orders with respect to, and to arrange for, any of the foregoing;
and (iv) in furtherance of the foregoing, to do anything which Adviser shall
deem advisable in connection therewith, including, without limitation, the
selection of brokers, dealers and others on behalf of the Portfolio. Adviser
shall have complete discretion as to the nature, amount and timing of all such
transactions. Adviser, in making all decisions on behalf of the Portfolio, shall
comly with any directives from the client regarding investments and shall comply
with the Client's Investment Policy Statement as amended from time to time,
attached hereto as Exhibit A.
b. In addition to (and not in limitation of) the authority granted to
Adviser with regard to the Portfolio in Section 2(a) above, Adviser shall have
full discretion and authority, without obtaining any prior approval, as the
Client's agent and attorney-in-fact, and at the Client's expense to:
<PAGE>
i) retain legal counsel and other professionals such as financial
advisers for the documentation of new private placements;
ii) execute confidentiality agreements in connection with prospective
investments and with distressed securities where such information is
designated to be distributed to bondholders;
iii) execute commitment letters on the Client's behalf with respect to
its prospective purchase of notes or other Securities;
iv) execute on the Client's behalf waivers, amendments and other
revisions which the Adviser, in its sole discretion, deems appropriate to
any covenant or other non-material, as determined by the Adviser in its
sole discretion, term or condition of any loan agreement;
v) execute on the Client's behalf waivers, amendments and other
revisions which the Advisor, in its sole discretion deems appropriate to
any term including, but not limited to, the principal amount, interest
payable, payment date and amortization schedule of any note; and
vi) execute on the Client's behalf, loan documents in connection with
new investments.
c. In addition to the authority granted to Adviser in Sections 2(a) and
2(b), Adviser shall have authority, subject to the Clients' prior approval, as
the Client's agent and attorney-in-fact, and at the Client's expense to:
i) retain legal counsel and other professionals such as financial
advisers for the resolution of Client's distressed securities; and
ii) initiate litigation on behalf of the Client in connection with the
above.
d. Adviser may combine orders for multiple portfolios in block
transactions, allocate the securities purchased or sold on behalf of clients
with respect to price, amount purchased or sold or other matters requiring
allocation, among the participating portfolio's (including the Portfolio) based
on the Client's pro-rata portion of block orders, and such other factors Adviser
determines to be reasonable. The Client agrees to execute upon request the
adviser's standard form of Trading Authorization, attached hereto as Exhibit B,
and will, upon request, execute similar trading authorizations on standard forms
used by brokers and dealers to evidence Adviser's authority to act on the
Client's behalf. Except as expressly set forth herein, it is understood that
Adviser has no other discretion,
-2-
<PAGE>
duty or responsibility whatsoever with respect to the control, management or
administration of the Portfolio.
3. Discretion to Employ Broker. The Client hereby agrees that Adviser shall
have full authority and discretion to select the broker or dealer through whom
any transaction in respect of the Portfolio shall be executed. Adviser may
choose a broker or dealer who also provides Adviser with research services as
defined in Section 28(e)(3) of the Securities Exchange Act of 1934. In selecting
a broker or dealer to execute a particular transaction, Adviser shall determine
that (i) the broker or dealer is able to obtain the best price on the particular
transaction and (ii) the commission cost is reasonable in relation to the total
quality and reliability of the brokerage and research services made available to
Adviser for the benefit of its clients, notwithstanding that the Client may not
be the exclusive beneficiary of any such service or that another broker or
dealer may be willing to charge the Client a lower commission on the particular
transaction provided that the Client is a direct beneficiary of the research
services. The Client acknowledges that the advisory fee set forth in Exhibit C
hereto is based on the Client's agreement to the foregoing and that the ability
to charge the foregoing commissions to the Portfolio is an integral factor in
the establishment of Adviser's advisory fees under this Agreement.
4. Custodian. The assets of the Portfolio shall be held by the entity or
entities acting as the Client's custodian in a separately identified account
("Custodian"). The Client has notified Adviser as to the identity of the
Custodian as of the date hereof, and shall notify Adviser of any subsequent
change in the Custodian. The Custodian shall at all times be responsible for the
physical custody of the assets of the Portfolio and for the collection of
interest dividends and other income attributable to the assets of the Portfolio.
The Client shall be responsible for all custodial arrangements and the payment
of all custodian charges and fees, and Adviser shall have no responsibility or
liability with respect to custody arrangements or any act, omission or other
conduct of the Custodian. The Client will direct the Custodian to accept
settlement instructions issued by the Adviser for the Portfolio.
5. Advisory Fee. The Client shall pay Adviser in accordance with the fee
schedule attached hereto as Exhibit C as may be amended by written agreement of
the parties upon ninety (90) days notice.
6. Adviser's Dealing with Other Clients. Adviser may recommend or effect
transactions for the portfolios of other clients which are identical or similar
to those which Adviser may recommend or effect for the Portfolio at the same or
different times. Nothing in this Agreement shall impose on Adviser any
obligation to recommend, purchase or sell for the Portfolio any Securities
Adviser recommends, purchases or sells for other
-3-
<PAGE>
clients portfolios. Adviser may also allocate transactions in Securities among
clients on such basis as Adviser determines to be reasonable, including a
determination that some clients may not purchase or sell the Securities at the
same time as others.
7. Actions of Principal's of Adviser. Adviser's principals and employees
may buy and sell Securities for their own accounts, including Securities
recommended to clients. Consistent with Adviser's obligation to give first
priority to client transactions, such purchases may be at the same or different
times or prices as the Client's purchases or sales.
8. Voting of Proxies. In connection with the services to be rendered by
Adviser under this Agreement, under certain circumstances, it is advisable that
Adviser have the authority to vote shares held in the Portfolio with respect to
matters which have direct impact on the values of such shares and which are best
analyzed in the context of Adviser's investment decisions with respect to the
Portfolio.
Therefore, Adviser hereby is granted the power as the Client's proxy and
attorney-in-fact, upon the following conditions, to vote the shares of stock or
other Securities held in the Portfolio, with respect to all matters which
Adviser determines to be relevant and appropriate. Adviser will notify the
Client, and any appropriate person(s) holding such Securities in "street name,"
as trustee, or custodian, when Adviser has determined its intent to exercise
this authority. Upon such notification, the Client, by this Agreement, directs
that such person(s) act on Adviser's instructions to vote the shares, unless the
Client notifies Adviser and such other person(s) of the Client's determination
to vote such shares itself.
Notwithstanding the foregoing, to the extent that the acceptance of such
powers places any affirmative regulatory obligations upon Adviser because
Adviser may be deemed to own or control any regulated entity, Adviser shall not
be deemed to have accepted such powers, unless and until Adviser complies with
any and all applicable laws and regulations governing such regulated entity.
9. Compliance with Laws. Except for gross negligence, or violation of
applicable law, neither Adviser nor any of its officers, employees or agent
shall be liable hereunder or otherwise for any actions, performed or omitted to
be performed in good faith, or for any errors of judgment in managing the
Portfolio. Adviser shall not be responsible for any loss incurred by reason of
any broker, dealer or custodian; provide, however, that Adviser will make
reasonable efforts to require that brokers, dealers and custodians perform their
obligations with respect to the Portfolio. It is understood that nothing herein
shall in any way constitute a waiver or limitation of any of the obligations
which Adviser may have under Federal Securities laws.
-4-
<PAGE>
10. Representations and Warranties.
a. Adviser hereby represents, warrants and agrees that Adviser is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has full power, right and authority to enter into
this Agreement and perform its obligations hereunder. Adviser further warrants
that it will comply with all applicable rules and regulations of the Securities
and Exchange Commission and, in addition, will conduct its activities under this
agreement in accordance with other applicable law.
b. The Client hereby represents, warrants and agrees that the Client is an
insurance company duly organized, validly existing and in good standing under
the laws of the State of Michigan and has full power, right and authority to
enter into this Agreement and to perform its obligations hereunder. The Client
will furnish Adviser with such evidence of authority and power to enter into
this Agreement and to trade in Securities as Adviser may request.
11. Indemnification. The Client agrees to indemnify and hold Adviser
harmless from and against any and all losses, costs indebtedness and liabilities
arising hereunder other than those due to Adviser's failure to comply with its
duties as set forth in Section 9 hereof. Adviser agrees to indemnify and hold
Company harmless from and against any and all losses, costs, indebtedness,and
liabilities, including reasonable attorneys' fees incurred or arising from
Adviser's failure to perform its duties under this Agreement.
12. Miscellaneous.
a. This Agreement constitutes the entire agreement between the parties with
respect to the Portfolio. The Agreement shall be governed by the laws of the
State of Illinois, Adviser's principal business location.
b. Subject to Adviser's right to comply with any demand of any regulatory
or taxing authority having jurisdiction over Adviser, Adviser shall treat as
confidential all information pertaining to the Portfolio and the Client shall
treat the advice of Adviser and its other actions in respect thereof in the same
manner.
c. This Agreement shall terminate 30 days after the Adviser or the Client
receives from the other written notice of termination.
d. This Agreement may not be assigned by either party without the prior
written consent of the other.
-5-
<PAGE>
e. Notices shall be deemed effective if addressed and mailed, certified or
registered mail, to the Client and Adviser.
Dated: April 14, 1993
ADVISER: PPM AMERICA, INC.
By: /s/ Russell Swansen
---------------------
Its: President
CLIENT: JACKSON NATIONAL LIFE INSURANCE COMPANY
By: /s/ David Pasant
---------------------
Its: President & CEO
JACKSON NATIONAL LIFE INSURANCE COMPANY
OF MICHIGAN
By: /s/ David Pasant
---------------------
Its: President & CEO
BROOKE LIFE INSURANCE COMPANY
By: /s/ David Pasant
---------------------
Its: President & CEO
-6-
<PAGE>
Exhibit A
JACKSON NATIONAL LIFE and JNL MICHIGAN
POLICYHOLDERS' FUNDS
INVESTMENT POLICY
JANUARY 6, 1993
1. TYPE OF ASSET
Jackson National Life's assets will be invested exclusively in U.S. dollar
denominated securities.
2. TAX STATUS
All investments will be fully taxable. Investments will not be made in tax
preferenced securities such as municipal bonds.
3. DURATION
New money should be invested at an average duration of between 4.5 and 7.5.
The average duration of the existing portfolio should not be increased.
4. CREDIT QUALITY
The statutory book value of non-investment grade holdings as measured by
the NAIC should be maintained at less than 10 percent of the statutory book
value of the bond portfolio.
5. CALL AND PREPAYMENT RISK
The yield on callable or prepayable securities should adequately compensate
for the options risk.
6. DIVERSIFICATION
Aggregate holdings of any single issuer have the following limits:
QUALITY LIMIT
------- -----
U.S. Treasury/Agency/FHLMC/FNMA No limit
Aaa-Baa 1% of Admitted Assets
Non-Investment Grade 1/2% of Admitted Assets
7. CAPITAL GAINS AND LOSSES
Gains of more than $5 million or losses of more than $1 million should not
be realized without consulting JNL beforehand.
<PAGE>
Exhibit A
8. INDUSTRY RESTRICTIONS
The securities of life insurance companies and their affiliates should not
be purchased.
-2-
<PAGE>
Exhibit A
JACKSON NATIONAL LIFE
SHAREHOLDERS' FUNDS INVESTMENT POLICY
JANUARY 6, 1993
This policy covers all the assets representing shareholders' funds of the JNL
Group.
1. TYPE OF ASSET
Shareholders' Funds will be invested exclusively in publicly tradeable U.S.
dollars denominated securities. Liquidity is not a primary concern of the
fund.
2. TAX STATUS
All investments will be fully taxable. Investments will not be made in tax
preferenced securities such a municipal bonds.
3. DURATION
The modified duration should be maintained between 3 and 5.
4. CREDIT QUALITY
All security holdings be rated no less than A2 by Moody's or A by S&P. The
average credit quality should not fall below [AA-].
5. CALL AND PREPAYMENT RISK
The yield on callable or prepayable securities should adequately compensate
for the options risk.
6. DIVERSIFICATION
Aggregate holdings of any single issuer have the following limits:
QUALITY LIMIT
------- -----
U.S. Treasury/Agency/FHLMC/FNMA
Corporate Debt No limit
AAA,Aaa $128MM
AA,Aa2 $ 85MM
AA,Aa3 $ 43MM
A,A2 $ 17MM
7. CAPITAL GAINS AND LOSSES
Gains of more than $5 million or losses of more than $1 million should not
be realized without consulting JNL beforehand.
<PAGE>
Exhibit A
8. INDUSTRY RESTRICTIONS
The securities of life insurance companies and their affiliates should not
be purchased.
JNL will be considered to be the client of PPM. PPM will, through both regular
daily communications and its periodic investment meetings, direct JNL's overall
investment strategy and handle all fee negotiations.
Group Treasury in London will communicate its desired handling of shareholders'
funds to JNL. JNL will see that the appropriate shareholders' funds procedures
are implemented by PPM.
PPM will send quarterly performance reports to Group Treasury in London on a
total return basis with copies to JNL. Due to JNL statutory constraints, PPM
will not manage shareholders' funds on a strict total return basis but will
utilize total return considerations whenever trading shareholders' securities.
This includes the current initial reorganization of shareholders' funds based on
the above policies.
-2-
<PAGE>
Exhibit A
JACKSON NATIONAL LIFE
MVA ANNUITY
INVESTMENT POLICY
JANUARY 6, 1993
1. TYPE OF ASSET
Jackson National Life's assets will be invested exclusively in U.S. dollar
denominated securities.
2. TAX STATUS
All investments will be fully taxable. Investments will not be made in tax
preferenced securities such as municipal bonds.
3. DURATION
New money should be invested with a target duration of 9.0.
4. CREDIT QUALITY
The statutory book value of non-investment grade holdings as measured by
the NAIC should be maintained at less than 10 percent of the statutory book
value of the bond portfolio.
5. CALL AND PREPAYMENT RISK
The yield on callable or prepayable securities should adequately compensate
for the options risk.
6. DIVERSIFICATION
Aggregate holdings of any single issuer have the following limits:
QUALITY LIMIT
------- -----
U.S. Treasury/Agency/FHLMC/FNMA No limit
Aaa-Baa 1% of Admitted Assets
Non-Investment Grade 1/2% of Admitted Assets
7. CAPITAL GAINS AND LOSSES
Gains of more than $5 million or losses of more than $1 million should not
be realized without consulting JNL beforehand.
8. INDUSTRY RESTRICTIONS
The securities of life insurance companies and their affiliates should not
be purchased.
<PAGE>
Exhibit B
TRADING AUTHORIZATION
TO:
The undersigned hereby appoints PPM American, Inc. ("Adviser") as the
undersigned's agent and attorney-in-fact with full discretion, power and
authority to purchase, sell, exchange, covert, tender, trade or otherwise
acquire or dispose of stocks, bonds, options and any other securities, and
contracts relating to the same in accordance with your terms and conditions for
the account and risk of the undersigned and in the name or account number of the
undersigned. The undersigned hereby agrees to indemnify and hold you harmless
from, and to pay you promptly on demand, any and all losses arising therefrom.
In all of the above-described transactions you are authorized to follow the
instructions of Adviser in every respect concerning the account of the
undersigned. Adviser is authorized to act for and on behalf of the undersigned
in the same manner and with the same force and effect as the undersigned might
or could do with respect to the aforementioned transactions as well as with
respect to all other things necessary or incidental to the furtherance or
conduct of such transactions. The undersigned hereby ratifies and confirms any
and all transactions heretofore or hereafter made by Adviser for the account of
the undersigned.
This authorization and indemnity is in addition (and in no way limits or
restricts) any rights which you may have under any other agreements between your
firm and the undersigned. This authorization and indemnity is also a continuing
one and shall remain in full force and effect until revoked by the undersigned
by a written notice addressed to and actually received by you, but such
revocation shall not affect any liability in any way resulting from transactions
initiated prior to such revocation. This authorization and indemnity shall inure
to the benefit of your present firm and of any successor firm or firms
irrespective of any change or changes at any time in the personnel therefor for
any cause whatsoever, and of the assigns of your present firm or any successor
firm.
JACKSON NATIONAL LIFE INSURANCE COMPANY
By: /s/ David Pasant
---------------------
Its: President & CEO
JACKSON NATIONAL LIFE INSURANCE COMPANY OF
MICHIGAN
By: /s/ David Pasant
---------------------
Its: President & CEO
<PAGE>
BROOKE LIFE INSURANCE COMPANY
By: /s/ David Pasant
---------------------
Its: President & CEO
-3-
<PAGE>
Exhibit C
ADVISORY FEE
Amount of Fee: 0.035 percent annually, billed monthly at a rate of one-twelfth
of 0.035 percent of the month-end value of the assets.
Terms of Payment: Fees will be computed and billed at the close of each month
and are due upon receipt.
<PAGE>
CERTIFICATE OF SECRETARY
The undersigned, Assistant Secretary of JACKSON NATIONAL LIFE INSURANCE
COMPANY and JACKSON NATIONAL LIFE INSURANCE COMPANY OF MICHIGAN and BROOKE LIFE
INSURANCE COMPANY, Michigan insurance corporations ("Corporations") hereby
certifies that the following is a true and accurate excerpt of the Advisory
Agreement between the Corporations and PPM AMERICA, INC. ("Adviser") and that
said contract has not been rescinded or amended and is now in full force and
effect:
Discretionary Authority.
(a) Adviser shall have full discretion and authority, without obtaining any
prior approval, as the Client's agent and attorney-in-fact, and at the Client's
expense, (i) to make all investment decisions in respect of the Portfolio; (ii)
to buy, sell and otherwise trade in Securities in respect of the Portfolio;
(iii) to place orders with respect to, and to arrange for, any of the foregoing;
and (iv) in furtherance of the foregoing, to do anything which Advisor shall
deem advisable in connection therewith, including, without limitation, the
selection of brokers, dealers and others on behalf of the Portfolio. Adviser
shall have complete discretion as to the nature, amount and timing of all such
transactions. Adviser, in making all decisions on behalf of the Portfolio, shall
comply with any directives from the client regarding investments and shall
comply with the Client's Investment Policy Statement as amended from time to
time, attached hereto as Exhibit A.
(b) In addition to (and not in limitation of) the authority granted to
Adviser with regard to the Portfolio in Section 2(a) above, Adviser shall have
full discretion and authority, without obtaining any prior approval, as the
Client's agent and attorney-in-fact, and at the Client's expense to:
i) retain legal counsel and other professionals such as financial
advisers for the documentation of new private placements;
ii) execute confidentiality agreements in connection with prospective
investments and with distressed securities where such information is
designated to be distributed to bondholders;
<PAGE>
iii) execute commitment letters on the Client's behalf with respect to
its prospective purchase of notes or other Securities;
iv) execute on the Client's behalf waivers, amendments and other
revisions which the Adviser, in its sole discretion, deems appropriate to
any covenant or other non-material, as determined by the Adviser in its
sole discretion, term or condition of any loan agreement;
v) execute on the Client's behalf waivers, amendments and other
revisions which the Adviser, in its sole discretion, deems appropriate to
any term including, but not limited to, the principal amount, interest
payable, payment date and amortization schedule of any note; and
vi) execute on the Client's behalf, loan documents in connection with
new investments.
(c) In addition to the authority granted in Sections 2(a) and 2(b), Adviser
shall have authority, subject to the Client's prior approval, as the Client's
agent and attorney-in-fact, and at the Client's expense to:
i) retain legal counsel and other professions such as financial
advisers for the resolution of Client's distressed securities; and
ii) initiate litigation on behalf of the Client in connection with the
above.
(d) Adviser may combine orders for multiple portfolios in block
transactions, allocate the securities purchased or sold on behalf of clients
with respect to price, amount purchased or sold or other matters requiring
allocation, among the participating portfolio's (including the Portfolio) based
on the Client's pro-rata portion of block orders, and such other factors Adviser
determines to be reasonable. The Client agrees to execute upon request the
Adviser's standard form of Trading Authorization, attached hereto as Exhibit B,
and will, upon request, execute similar trading authorizations on standard forms
used by brokers and dealers to evidence Adviser's authority to act on the
Client's behalf. Except as expressly set forth herein, it is understood that
Adviser has no other discretion, duty or responsibility whatsoever with respect
to the control, management or administration of the Portfolio.
-2-
<PAGE>
IN WITNESS WHEREOF, I have
hereunto set my hand and
affixed the corporate seal of
said corporations this 25th
day of June, 1993.
JACKSON NATIONAL LIFE
INSURANCE COMPANY
(Corporate Seal)
JACKSON NATIONAL LIFE
INSURANCE COMPANY OF MICHIGAN
(Corporate Seal)
BROOKE LIFE
INSURANCE COMPANY
(Corporate Seal)
/s/ Larry C. Jordan
-----------------------------------
Larry C. Jordan
Assistant Secretary
-3-
<PAGE>
REGISTRATION RIGHTS AGREEMENT
Dated as of December 14, 1994
executed by
Bucyrus-Erie Company
for the benefit of
The Persons Who Are Listed
On Schedule A Hereto
<PAGE>
TABLE OF CONTENTS
1. Background.......................................................... 1
2. Definitions......................................................... 1
3. Demand Registration................................................. 4
(a) Requests for Registration................... ............... 4
(b) Limitation on Demand Registration.......... ................ 5
(c) Effective Registration.................... ................. 5
(d) Priority on Demand Registration.......... .................. 6
(e) Postponement of Demand Registration..... ................... 6
(f) Registration of Other Securities....... .................... 6
(g) Expenses.............................. ..................... 7
(h) Limitations on Demand Registrations.. ...................... 7
4. Piggyback Registration.............................................. 7
(a) Right to Piggyback.......................................... 7
(b) Registration Expenses....................................... 8
(c) Priority on Piggyback Registrations......................... 8
5. Hold-Back Agreements................................................ 9
6. Registration Procedures............................................. 9
7. Rule 144............................................................ 14
8. Indemnification..................................................... 14
(a) Indemnification by the Company.............................. 14
(b) Indemnification by Holders of Registrable
Securities.................................................. 15
(c) Conduct of Indemnification Proceedings...................... 15
(d) Contribution................................................ 16
(e) Other Indemnification....................................... 17
(f) Indemnification Payments.................................... 17
9. Underwritten Offerings.............................................. 17
10. Term of Agreement................................................... 18
11. Miscellaneous....................................................... 18
(a) Amendments and Waivers...................................... 18
(b) Notices..................................................... 18
(c) Successors and Assigns...................................... 19
(d) Entire Agreement............................................ 19
(e) Governing Law............................................... 19
(f) Severability................................................ 19
(g) Headings.................................................... 20
(h) Remedies.................................................... 20
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made and entered into as of December
14, 1994, by Bucyrus-Erie Company, a Delaware corporation (the "Company"), for
the benefit of those persons listed on Schedule A attached hereto.
1. Background. This Agreement is made pursuant to the Second Amended Joint
Plan of Reorganization of B-E Holdings, Inc. and Bucyrus-Erie Company under
chapter 11 of the United States Bankruptcy Code as modified December 1, 1994
(the "Plan"), filed with and confirmed by the United States Bankruptcy Court,
Eastern District of Wisconsin (the "Bankruptcy Court"), by order entered
December 1, 1994 (the "Confirmation Order"), Case Nos. 94-20786- RAE and
94-20787-RAE, for the benefit of those persons listed on Schedule A attached
hereto, which persons are entitled as holders of certain claims against
Bucyrus-Erie Company to each receive 1,000,000 or more shares of the Common
Stock to be distributed pursuant to the Plan. In accordance with the terms of
the Plan and the Confirmation Order, each Relevant Beneficial Holder to whom
Shares are distributed pursuant to the Plan, by such Relevant Beneficial
Holder's acceptance of such Shares, shall be deemed to have agreed to and become
bound by the terms of this Agreement in the event such Relevant Beneficial
Holder exercises any rights granted to such Relevant Beneficial Holder under
this Agreement and, in such event, shall be deemed a party to this Agreement to
the same extent as if such Relevant Beneficial Holder had executed a counterpart
hereof.
The Company hereby covenants and agrees as follows for the benefit of each
Relevant Beneficial Holder upon acceptance of any Shares and exercise of any
rights granted hereunder to such Relevant Beneficial Holder hereby covenants and
agrees as follows:
2. Definitions. Capitalized terms used but not otherwise defined in this
Agreement shall have the respective meaning ascribed to them in the Plan. In
addition, except as otherwise specifically indicated, the following terms shall
have the following meanings for all purposes of this Agreement:
"Agreement" means this Registration Rights Agreement, as the same may be
amended, supplemented or modified from time to time in accordance with the terms
hereof.
"Business Day" means any day other than Saturday, Sunday or any other day
on which banking institutions in the State of New York are authorized or
obligated to close.
"Common Stock" means the common stock, par value $.01 per share, of the
Company, as constituted on the date hereof, and any stock into which such Common
Stock shall have been changed or
<PAGE>
any stock resulting from any reclassification of such Common Stock.
"Demand Notice" has the meaning ascribed to it in Section 3(a).
"Demand Registration" has the meaning ascribed to it in Section 3(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"NASDAQ" means National Association of Securities Dealers Automated
Quotations system.
"Permitted Assignee" has the meaning ascribed to it in Section 11(c).
"Person" means any natural person, corporation, general partnership,
limited partnership, joint venture, association, joint-stock company, trust or
unincorporated organization.
"Piggyback Notice" has the meaning ascribed to it in Section 4(a).
"Piggyback Registration" has the meaning ascribed to it in Section 4(a).
"Proceeding" means an action, claim, suit or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition).
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a Prospectus filed as part of an effective Registration
Statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any Prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Public Offering" means any offering of Common Stock to the public, either
on behalf of the Company or any of its security holders, pursuant to an
effective registration statement under the Securities Act.
"Registrable Securities" means the Shares and any additional shares of
Common Stock issued or distributed by way of a dividend, stock split or other
distribution in respect of the
2
<PAGE>
Shares, or acquired by way of any rights offering or similar offering made in
respect of the Shares. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities (a) when a Registration
Statement with respect to the disposition of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such Registration Statement, (b) when such securities are
sold pursuant to Rule 144 or any other available exemption from the registration
requirements of Section 5 of the Securities Act, or (c) record or beneficial
ownership of such securities otherwise is transferred from a Relevant Beneficial
Holder to any other Person (including any other Relevant Beneficial Holder)
other than a Permitted Assignee of such Relevant Beneficial Holder.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with its obligations under this Agreement to effect
the registration of Registrable Securities in a Demand Registration or a
Piggyback Registration, including, without limitation, all registration, filing,
securities exchange listing and National Association of Securities Dealers fees,
all registration, filing, qualifications and other fees and expenses of
complying with securities or blue sky laws, all word processing, duplicating and
printing expenses, messenger and delivery expenses, the fees and disbursements
of counsel for the Company and of its independent public accountants, including
the expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, the reasonable fees and
disbursements of Special Counsel and any fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, but excluding underwriting
discounts and commissions and transfer taxes, if any, in respect of Registrable
Securities, which shall be payable by each holder of the Registrable Securities
being registered.
"Registration Statement" means any registration statement of the Company
that covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such Registration Statement.
"Relevant Beneficial Holder" means a Person who, on the Distribution Record
Date, is a Beneficial Holder of Allowed Class 4A Claims, Allowed Class 4B
Claims, Allowed Class 4C Claims, Allowed Class 4D Claims, Allowed Class 6
Claims, Allowed Class 9 Claims, Allowed Class 10 Claims, Allowed Class 11 Claims
and/or Allowed Class 12 Claims to whom 1,000,000 or more shares of Common Stock
in the aggregate are distributable pursuant to the Plan, which Persons are
listed on Schedule A hereto.
3
<PAGE>
"Requisite Percentage of Outstanding Holders" means the holders of 15% or
more of the Registrable Securities then outstanding.
"Requisite Percentage of Participating Holders" means the holders of 40% or
more of the Registrable Securities then held by the holders of Registrable
Securities participating in a registration.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Selling Holders" means with respect to any Demand Registration or
Piggyback Registration, holders of Registrable Securities requesting to have
Registrable Securities included in such registration in accordance with this
Agreement.
"Shares" means the shares of Common Stock being issued pursuant to the Plan
to the Relevant Beneficial Holders.
"Special Counsel" means any special counsel to the holders of Registrable
Securities retained by the holders of a majority of the Registrable Securities
being registered for which holders of Registrable Securities will be reimbursed
pursuant to Section 3(g) or Section 4(b). There shall be no more than one law
firm acting as Special Counsel with respect to any one offering.
"underwritten registration" or "underwritten offering" means a registration
in which securities of the Company are sold to an underwriter for reoffering to
the public.
"underwriter" means a securities dealer that purchases (as principal and
not as part of such dealer's market-making activities) any securities offered
pursuant to a Registration Statement filed by the Company.
3. Demand Registration
(a) Requests for Registration. At any time after the date hereof, upon the
written request of one or more holders of Registrable Securities representing
the Requisite Percentage of Outstanding Holders specifying the number and amount
of Registrable Securities to be registered and the intended method of
disposition thereof (a "Demand Notice") requesting that the Company effect
registration (a "Demand Registration") under the Securities Act, the Company
shall: (i) promptly give written
4
<PAGE>
notice of the Company's receipt of such Demand Notice to all other holders of
Registrable Securities, who will be given the opportunity to participate in such
Demand Registration and (ii) thereupon use its best efforts to effect the
registration under the Securities Act, so as to permit promptly the sale, in
accordance with the intended method of distribution, of (x) the Registrable
Securities which the Company has been so requested to register by such holders
and (y) all other Registrable Securities with respect to which the Company has
received written requests for inclusion in such registration within fifteen days
after the delivery to the applicable holders of the Company's notice. If
requested by the holders of a majority of the Registrable Securities requested
to be included in a Demand Registration the method of disposition of all
Registrable Securities included in such registration shall be an underwritten
offering effected in accordance with Section 9.
(b) Limitation on Demand Registration. Notwithstanding any provision of
this Agreement to the contrary, the Company shall not be obligated to honor any
Demand Notice requesting a Demand Registration hereunder if:
(i) within the 180 day period immediately preceding the request for
such Demand Registration, a Registration Statement covering Registrable
Securities has been declared effective in response to a Demand Notice
delivered pursuant to Section 3(a); or
(ii) the Demand Notice is delivered to the Company during the period
commencing 30 days before the effective date of a registration statement
pursuant to which the Company is offering shares of Common Stock in an
underwritten offering and ending 60 days after the closing date of any such
offering, provided, that the holder or holders of Registrable Securities
requesting such Demand Registration were afforded the opportunity to
participate in such underwritten offering.
(c) Effective Registration. A Demand Registration requested pursuant to
this Section 3 shall not be deemed to have been effected (including for purposes
of Section 3(h)) (i) unless a Registration Statement with respect thereto has
become effective and has been kept continuously effective for a period of at
least 150 days (or such shorter period which shall terminate when all the
Registrable Securities covered by such Registration Statement have been sold
pursuant thereto), (ii) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court for any reason not attributable to
the Selling Holders and has not thereafter become effective, or (iii) if the
conditions to closing specified in the underwriting agreement, if any, entered
into in connection with such registration are not satisfied or waived, other
than by reason of a failure on the part of the Selling Holders.
5
<PAGE>
(d) Priority on Demand Registration. If the managing underwriters of any
underwritten offering determine in their opinion that the total number of
securities proposed to be sold in such offering is such as to materially and
adversely affect the success of such offering (whether by a reduction in the
anticipated selling price or otherwise), then the Company shall include in the
Registration Statement relating to such underwritten offering the number of
Registrable Securities that in the opinion of such managing underwriters can be
sold without materially and adversely affecting such offering, and such number
of Registrable Securities shall be allocated (i) first, among the Selling
Holders delivering the Demand Notice under Section 3(a) and the other Selling
Holders that request to participate in such Demand Registration pursuant to
Section 3(a) allocated pro rata on the basis of the aggregate number of such
Registrable Securities requested to be registered and (ii) second, among the
Company and all other holders of securities of the Company permitted to include
their securities in such Demand Registration.
(e) Postponement of Demand Registration. The Company shall be entitled to
postpone, for a reasonable period of time (not exceeding 120 days), the filing
of any Registration Statement under this Section 3 if the Company determines, in
its reasonable business judgment, that such registration and offering would in
the good faith judgment of the Board of Directors of the Company materially
interfere with any financing, acquisition, disposition of assets or stock,
merger, other comparable transaction or other material business plans of the
Company or would require public disclosure by the Company of non-public
information, the premature disclosure of which could materially adversely affect
the Company; provided, however, that the Company shall not be required to
disclose to the holders requesting a Demand Registration any such transaction,
plan or non-public information. If the Company postpones the filing of a
Registration Statement under this Section 3(e), it shall promptly notify the
holders of Registrable Securities in writing when the events or circumstances
permitting such postponement have ended and at such time shall proceed with the
filing of the Registration Statement as requested. If the Company shall postpone
the filing of a Registration Statement pursuant to this Section 3(e), then the
holders of Registrable Securities demanding such registration shall have the
right to withdraw their request for Demand Registration under Section 3(a) by
giving written notice to the Company at any time within ten days after the date
the Company notifies such holders of Registrable Securities of its willingness
to proceed with the filing of the Registration Statement and, upon such
withdrawal, the withdrawn demand will not count as a Demand Registration for
purposes of Section 3(h).
(f) Registration of Other Securities. Subject to Section 3(d), the Company
may include in any Demand Registration under this Section 3 other securities of
the same class as the
6
<PAGE>
Registrable Securities for sale for its own account or for the account of any
other Person unless the Selling Holders representing the Requisite Percentage of
Participating Holders have objected in writing to the inclusion therein of such
other securities.
(g) Expenses. The Company shall pay all Registration Expenses in connection
with any Demand Registration under Section 3(a).
(h) Limitations on Demand Registrations. In no event will the Company be
required to effect, in the aggregate, without regard to the holder or holders of
Registrable Securities making such request for registration, more than three
Demand Registrations pursuant to Section 3(a); provided, however, that no holder
of Registrable Securities may initiate more than two Demand Registrations
pursuant to Section 3(a) unless such holder is, at the time of such request, the
sole holder of Registrable Securities.
4. Piggyback Registration
(a) Right to Piggyback. If at any time after the date hereof, the Company
proposes to file a registration statement under the Securities Act with respect
to an offering of its equity securities and so long as Registrable Securities
can be included on the proposed form of registration to be used by the Company
to register such equity securities (except (i) a registration in respect of a
dividend reinvestment or similar plan for stockholders of the Company, (ii) a
registration on Form S-4, Form S-8 or any successor form thereto, or (iii) as
part of a Demand Registration (in which event the provisions of Section 3 shall
govern the rights of holders of Registrable Securities to be included in such
Registration Statement)), whether or not for its own account, then the Company
shall give written notice of such proposed filing to the holders of Registrable
Securities at least 30 days before the anticipated filing date (the "Piggyback
Notice"). The Piggyback Notice shall offer holders of Registrable Securities the
opportunity to request inclusion in such registration of any amount of
Registrable Securities. Upon the written request of any holder of Registrable
Securities made as promptly as practicable and in any event within 15 days after
the receipt of a Piggyback Notice (which request shall specify the Registrable
Securities intended to be disposed of by such holder), the Company, subject to
Section 4(c), shall use its best efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register (a "Piggyback Registration"). The Company may, at its
option, include such Registrable Securities either in the registration statement
giving rise to such Piggyback Registration or in a separate Registration
Statement filed concurrently therewith. Notwithstanding the foregoing, if, at
any time after giving a Piggyback Notice and prior to the effective date of the
Registration Statement filed in connection
7
<PAGE>
with such registration, the Company shall determine for any reason not to
register or to delay registration of such securities, the Company may, at its
election, give written notice of such determination to each holder of
Registrable Securities who has requested registration of Registrable Securities
pursuant to this Section 4(a) and, thereupon, (i) in the case of a determination
not to register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligations to
pay the Registration Expenses in connection therewith) and (ii) in the case of a
determination to delay registering, shall be permitted to delay registering any
Registrable Securities for the same period as the delay in registering such
other securities without prejudice, however, in either case, to the rights of
any requesting holder entitled to do so to request that such registration be
effected as a Demand Registration under Section 3. No registration effected
under this Section 4 shall relieve the Company of its obligations to effect a
Demand Registration under Section 3. Each holder who has requested registration
of Registrable Securities pursuant to this Section 4(a) shall be permitted to
withdraw all or part of the Registrable Securities from a Piggyback Registration
at any time prior to the effective date of such Piggyback Registration by giving
written notice to the Company of its request to withdraw.
(b) Registration Expenses. The Company will pay all Registration Expenses
incurred in connection with each Piggyback Registration under Section 4(a).
(c) Priority on Piggyback Registrations. The Company shall use reasonable
efforts to cause the managing underwriters of a proposed underwritten offering
of securities of the type described in Section 4(a) to permit the Registrable
Securities requested to be included in the registration statement (or
registration statements) for such offering to be included therein (on the same
terms and conditions as the securities of the Company included therein by
persons other than the Selling Holders, to the extent appropriate).
Notwithstanding the foregoing, if the managing underwriters of such underwritten
offering determine in their opinion that the total number of securities that the
Selling Holders, the Company, and any other persons having rights (or otherwise
permitted) to participate in such registration propose to include in such
offering is such as to materially and adversely affect the success of such
offering (whether by a reduction in the anticipated selling price or otherwise),
then:
(i) if such Piggyback Registration is incident to a primary
registration on behalf of the Company, the securities to be included by the
Company in such registration shall be reduced pro rata among the Company
and the Selling Holders on the basis of the aggregate number of securities
of the Company proposed to be registered by the
8
<PAGE>
Company and Registrable Securities requested to be included by such
holders; and
(ii) if such Piggyback Registration is incident to a secondary
registration on behalf of holders of securities of the Company (other than
pursuant to Section 3(a), in which case priority shall be determined in
accordance with Section 3(d)), the Company shall include in such
registration (A) first, up to the number of securities of such persons
exercising "demand" registration rights, or on whose behalf the secondary
registration otherwise is being made, that, in the opinion of such
underwriters, can be sold (allocated among such holders as they may so
determine), and (B) second, the number of Securities requested to be
included in such registration pursuant to Section 4(a) in excess of the
securities such persons exercising "demand" registration rights, or on
whose behalf the secondary registration otherwise is being made, propose to
sell that, in the opinion of such managing underwriters, can be sold
without materially and adversely affecting such offering (allocated pro
rata on the basis of the aggregate number of such Registrable Securities
requested to be registered).
5. Hold-Back Agreements
In connection with a Demand Registration or a Piggyback Registration, if
requested in writing by the managing underwriters in any such firm underwritten
offering, during the period beginning 30 days before, and ending 90 days after,
the effective date of any registration statement filed by the Company in
connection with such a Demand Registration or Piggyback Registration:
(a) the Company agrees not to effect during such period any public or
private offer, sale or distribution of Registrable Securities (except (i) as
part of such underwritten offering, (ii) pursuant to registrations on Form S-4
or Form S-8 or any successor form to either such form, or (iii) the grant of
options or similar rights to employees of the Company pursuant to any duly
adopted employee benefit plan); and
(b) each holder of Registrable Securities, by acquisition of such
Registrable Securities, agrees not to effect during such period any public
offer, sale or distribution of Registrable Securities, including a sale pursuant
to Rule 144 (except as part of such underwritten offering).
6. Registration Procedures
If and whenever the Company is required to use its best efforts to effect
the registration of any Registrable Securities under the Securities Act pursuant
to Section 3(a) or Section 4(a), the Company will use its best efforts to effect
such registration to permit the sale of Registrable Securities in
9
<PAGE>
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company shall, except to the extent expressly provided
otherwise in this Agreement, as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or Registration
Statements on a Form available for the sale of the Registrable Securities by the
Selling Holders in accordance with the intended method or methods of
distribution thereof, and thereafter use its best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable time period as
provided in Section 3(c), as applicable, or, in the case of a Piggyback
Registration for such time as the Company shall determine in its sole discretion
but in no event less than 90 days.
(c) Notify the Selling Holders and the managing underwriters, if any,
promptly (i) when a Registration Statement, Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective, (ii) at any time when a Prospectus is required to be delivered under
the Securities Act, upon discovery that, or upon the happening of any event that
(A) makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or (B) that requires the making of any
changes in such Registration Statement, Prospectus or documents so that it will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and (iii) of the Company's reasonable determination that
a post-effective amendment to a Registration Statement would be appropriate.
(d) If requested, furnish to each Selling Holder and each managing
underwriter, if any, without charge, at least one conformed copy of the
Registration Statement or Registration Statements and each post-effective
amendment thereto, including financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by reference, and all exhibits
to the extent requested by each Selling Holder at the earliest practicable time
under the circumstances after the filing of such documents with the SEC.
(e) Deliver to each Selling Holder and the managing underwriters, if any,
without charge, as many copies of the Prospectus or Prospectuses (including each
form of prospectus) and each amendment or supplement thereto as such persons may
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<PAGE>
reasonably request to facilitate the disposition of the Registrable Securities
covered by such Prospectus or Prospectuses; and the Company hereby consents to
the use of such Prospectus and each amendment or supplement thereto by each of
the Selling Holders and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by such Prospectus and
any amendment or supplement thereto.
(f) Prior to any public offering of Registrable Securities, use reasonable
efforts to (i) register or qualify or cooperate with the Selling Holders, the
managing underwriters, if any, and their respective counsel in connection with
the registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any Selling Holder or managing underwriter reasonably requests in writing and
(ii) keep each such registration or qualification (or exemption therefrom)
effective during the period the applicable Registration Statement is required to
be kept effective and do any and all other acts or things necessary or advisable
to enable the disposition in such jurisdictions of the Registrable Securities
covered by the applicable Registration Statement; provided, however, that the
Company shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or subject the Company to any tax in any such jurisdiction
where it is not then so subject.
(g) Notify the Selling Holders and the managing underwriters, if any,
promptly (i) of written comments received from, or any stop order issued by, the
SEC with respect to any Registration Statement and use all reasonable efforts to
respond to such comments or to obtain the withdrawal of such stop order as of
the earliest practicable time and (ii) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction and shall use all reasonable efforts to obtain the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction as of the earliest
practicable time.
(h) Upon the occurrence of any event contemplated by Section 6(c)(ii) or
Section 6(c)(iii), prepare and file with the SEC a supplement or post-effective
amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference, and file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities being sold thereunder, such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
11
<PAGE>
the statements therein, in light of the circumstances under which they were
made, not misleading.
(i) Use its best efforts to cause all Registrable Securities covered by
such Registration Statement to be (i) listed on each securities exchange, if
any, on which the same class of securities issued by the Company are then listed
or (ii) authorized to be quoted on NASDAQ or such other national quotation
system, if any, on which the same class of securities issued by the Company are
then quoted.
(j) Enter into and perform customary agreements (including an underwriting
agreement in customary form with the managing underwriters, if any) and take
such other actions as are reasonably required in order to expedite or facilitate
the disposition of such Registrable Securities.
(k) Make available for inspection by the Selling Holders and any managing
underwriter participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant, or other professional retained by the
Selling Holders or any managing underwriter (collectively, the "Inspectors"),
all financial and other records, pertinent corporate documents, and properties
of the Company (collectively, the "Records") as shall be reasonably necessary to
enable them to exercise their due diligence responsibility under the Securities
Act, and cause the Company's officers, directors, and employees to supply all
information reasonably requested by any such Inspectors in connection with such
Registration Statement. Records which the Company determines, in good faith, to
be confidential and which it notifies the Inspectors are confidential shall not
be disclosed by the Inspectors unless (i) in the judgment of counsel to the
Company the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such Registration Statement or (ii) the release of
such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction. Each holder of Registrable Securities agrees that
information obtained by it or by the Inspectors retained by it as a result of
such inspections shall be deemed confidential and shall not be used by it or by
the Inspectors retained by it as the basis for any market transactions in the
securities of the Company or for any other purpose unless and until such is made
generally available to the public by the Company. Each holder of Registrable
Securities further agrees that it will, upon learning that disclosure of such
Records if sought in or by order of a court of competent jurisdiction, give
notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of the Records deemed confidential.
(l) Furnish to each Selling Holder and each underwriter, if any,
participating in the offering of the securities covered by a Registration
Statement, a signed counterpart of:
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<PAGE>
(i) an opinion of outside counsel (or inside counsel if satisfactory
to each underwriter or, if not sold through an underwriter, to the Selling
Holders participating in the registered offering) for the Company, and
(ii) a "comfort" letter signed by the independent public accountants
who have certified the Company's financial statements included or
incorporated by reference in the Registration Statement,
covering substantially the same matters with respect to the Registration
Statement (and the Prospectus included therein) and, in the case of the
accountants' comfort letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' comfort letters delivered to the underwriters in
underwritten public offerings of securities (and dated the dates such opinions
and comfort letters are customarily dated) and, in the case of the legal
opinion, such other legal matters, and, in the case of the accountants' comfort
letter, such other financial matters, as the Requisite Percentage of
Participating Holders, or the underwriters, may reasonably request.
(m) Use its best efforts to comply with all applicable rules and
regulations of the SEC and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering a period of at least 12
months beginning with the first full calendar month of the Company after the
effective date of a Registration Statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder.
The Company may require each Selling Holder to furnish in writing to the
Company such information regarding such holder and the distribution of his
Registrable Securities as the Company may, from time to time, reasonably request
and the Company may exclude from any registration pursuant hereto the
Registrable Securities of any Selling Holder who fails to furnish such
information within a reasonable time after receiving such request.
Each holder of Registrable Securities agrees by acceptance of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 6(c)(ii) or Section
6(c)(iii), such holder will forthwith discontinue disposition of such
Registrable Securities covered by such Registration Statement or Prospectus
until such holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 6(h), or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any additional or supplemental filings that
are incorporated or deemed to be incorporated by reference in such Prospectus.
If the Company shall give any such notice, the time period mentioned
13
<PAGE>
in Section 3(c) shall be extended by the number of days during such period from
and including the date of the giving of such notice to and including the date
when each seller of Registrable Securities covered by such Registration
Statement shall have received (x) the copies of the supplemented or amended
Prospectus contemplated by Section 6(h) or (y) the Advice.
7. Rule 144. The Company shall take all actions reasonably necessary to
enable holders of Registrable Securities to sell such securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144, or (b) any similar rule or regulation hereafter
adopted by the SEC including, without limiting the generality of the foregoing,
filing on a timely basis all reports required to be filed by the Exchange Act.
Upon the request of any holder of Registrable Securities, the Company will
deliver to such holder a written statement as to whether it has complied with
such requirements.
8. Indemnification
(a) Indemnification by the Company. The Company shall indemnify and hold
harmless each holder of Registrable Securities, the officers, directors, agents
and employees of each such holder, each Person who controls each such holder
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) and the officers, directors, agents and employees of each such
controlling person, to the fullest extent lawful, from and against any and all
losses, claims, damages, liabilities, costs (including without limitation
reasonable attorneys' fees) and expenses (collectively, "Losses") arising out of
or based upon any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or form of prospectus or in
any amendment or supplement thereto or in any preliminary prospectus, or arising
out of or based upon any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are based upon information furnished in
writing to the Company by or on behalf of such holder expressly for use in such
Registration Statement or Prospectus; provided, however, that the Company shall
not be liable to the extent that (A) any such Losses arise out of or are based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any preliminary prospectus if (i) such holder failed to send or
deliver a copy of the Prospectus with or prior to the delivery of written
confirmation of the sale by such holder of a Registrable Security to the person
asserting such Losses who purchased such Registrable Security that is the
subject thereof and (ii) the Prospectus would have adequately corrected such
untrue statement or alleged untrue statement or such omission or alleged
omission; or (B) any such Losses arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission in the
Prospectus, if such untrue statement or alleged untrue statement
14
<PAGE>
or omission or alleged omission is adequately corrected in an amendment or
supplement to the Prospectus and if, having previously been furnished by or on
behalf of the Company with copies of the Prospectus as so amended or
supplemented, the holder of Registrable Securities thereafter fails to deliver
such Prospectus as so amended or supplemented prior to or concurrently with the
sale of a Registrable Security to the person asserting such Losses who purchased
such Registrable Security that is the subject thereof from such holder.
(b) Indemnification by Holders of Registrable Securities. In connection
with any Registration Statement in which a holder of Registrable Securities is
participating, such holder of Registrable Securities agrees to indemnify and
hold harmless the Company, its directors, officers, agents and employees, each
Person who controls the Company (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act), and the directors, officers,
agents or employees of such controlling persons, to the fullest extent lawful,
from and against all Losses arising out of or based upon any untrue or alleged
untrue statement of a material fact contained in any Registration Statement,
Prospectus, or form of prospectus, or arising out of or based upon any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission is contained in any written information furnished
to the Company by or on behalf of such holder expressly for use in such
Registration Statement or Prospectus.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be
brought or asserted against any person entitled to indemnity hereunder (an
"Indemnified Party"), such Indemnified Party shall promptly notify the party
from which such indemnity is sought (the "Indemnifying Party") in writing, and
the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Party and the
payment of all reasonable fees and expenses incurred in connection with the
defense thereof. The failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Section 8, except to the extent that the Indemnifying Party is actually
prejudiced by the failure to give notice. Any such Indemnified Party shall have
the right to employ separate counsel in any such Proceeding and to participate
in the defense thereof, but the fees and expenses of such counsel shall be borne
by such Indemnified Party unless (i) the Indemnifying Party has agreed to pay
such fees and expenses, (ii) the Indemnifying Party shall have failed to
promptly assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to the Indemnified Party, (iii) the Indemnified Party's counsel
shall have advised the Indemnified Party that a conflict of interest exists that
could make it inappropriate
15
<PAGE>
under applicable standards of professional conduct to have the counsel employed
by the Indemnifying Party represent such Indemnified Party, or (iv) the
Indemnified Party's counsel shall have advised the Indemnified Party that there
may be defenses available to the Indemnified Party that are different from or in
addition to those available to the Indemnifying Party and that the Indemnifying
Party is not able to assert on behalf of or in the name of the Indemnified Party
(in which case, if such Indemnified Party notifies the Indemnifying Party in
writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall pay the attorneys' fees of the
Indemnified Party to the extent related to the assertion by such counsel of such
different and/or additional defenses, but for no other reason); provided,
however, that the Indemnifying Party shall not, in connection with any one such
Proceeding or separate but substantially similar or related Proceedings in the
same jurisdiction, arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of attorneys
at any time for all such Indemnified Parties. No Indemnifying Party shall
consent to entry of any judgment or enter into any settlement without the
consent of the Indemnified Party which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect to such Proceeding. No Indemnifying Party
shall be liable for any settlement of any Proceeding effected without its
written consent, which consent shall not be unreasonably withheld.
(d) Contribution. If the indemnification provided for in this Section 8 is
unavailable to an Indemnified Party under Section 8(a) or Section 8(b) (other
than by reason of exceptions provided in those Sections) in respect of any
Losses, then each applicable Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses as between the Company, on the one
hand, and the Selling Holders, on the other hand, in such proportion as is
appropriate to reflect the relative fault of the Company and of the Selling
Holders in connection with such statements or omissions, as well as any other
relevant equitable considerations. The relative fault of the Company, on the one
hand, and of the Selling Holders, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by such party, and the party's relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of any
Losses shall be deemed to include, subject to the limitations set forth in
Section 8(c), any legal or other fees or expenses reasonably incurred by such
party in connection with any investigation or defense of any Proceeding.
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<PAGE>
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) Other Indemnification. Indemnification similar to that specified in the
preceding paragraphs of this Section 8 (with appropriate modifications) shall be
given by the Company and each Selling Holder with respect to any required
registration or other qualification of securities under any federal or state law
or regulation of any governmental authority other than the Securities Act. The
provisions of this Section 8 shall be in addition to any other rights to
indemnification or contribution which an Indemnified Party may have pursuant to
law, equity, contract or otherwise.
(f) Indemnification Payments. The indemnification required by this Section
8 shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or Losses are
incurred.
9. Underwritten Offerings. In connection with each underwritten offering
made pursuant to this Agreement, the managing underwriters to be used in the
offering will be selected by the Company; provided, that such managing
underwriters shall be reasonably satisfactory to the Requisite Percentage of
Participating Holders. Notwithstanding the foregoing, the Company shall have no
obligation to select or otherwise provide an underwriter for any Demand
Registration. If the Company elects not to select the managing underwriters for
any underwritten offering made pursuant to this Agreement (other than an
underwritten offering made pursuant to a Piggyback Registration), then the
managing underwriters to be used in the offering will be selected by the
Requisite Percentage of Participating Holders; provided, that such managing
underwriters shall be reasonably satisfactory to the Company. The holders of
Registrable Securities to be distributed by such underwriters shall be parties
to such underwriting agreement and may, at their option, require that any or all
of the representations and warranties by, and the other agreements on the part
of, the Company to and for the benefit of such underwriters also be made to and
for their benefit and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement also be
conditions precedent to their obligations. No holder of Registrable Securities
shall be required to make any representations or warranties to or agreements
with the Company or the underwriters other than
17
<PAGE>
representations, warranties or agreements regarding such holder and its
ownership of the securities being registered on its behalf and such holder's
intended method of distribution and any other representation required by law. No
Person may participate in any underwritten offering hereunder unless such Person
(a) agrees to sell such Person's Registrable Securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
10. Term of Agreement. This Agreement shall terminate on the earlier of (i)
the fifth anniversary of the date hereof or (ii) the first date on which there
ceases to be any Registrable Securities; provided, however, that notwithstanding
any termination of this Agreement, the provisions of Section 8 of this Agreement
shall survive the termination of this Agreement until the expiration of all
periods during which any Proceeding of the type for which indemnity may be
claimed under Section 8 ("Indemnifiable Claims") have elapsed, and thereafter
until the final and non-appealable resolution of any and all Indemnifiable
Claims commenced during such periods and the final resolution between the
holders of Registrable Securities and the Company of any and all claims made by
any party under Section 8 hereof with respect to those Indemnifiable Claims.
11. Miscellaneous
(a) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may be amended, waived or modified only with the
written consent of each of (i) the Company and (ii) holders of at least a
majority of the Registrable Securities. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of holders of Registrable Securities whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other holders of Registrable
Securities may be given by holders of at least a majority of the Registrable
Securities being sold by such holders pursuant to such Registration Statement;
provided, however, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(b) Notices. All notices and other communications provided for herein shall
be in writing and shall be given or made by telecopy, telegraph or prepaid first
class registered or certified mail and shall be delivered as follows:
1. If to the Company:
Bucyrus-Erie Company
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<PAGE>
P.O. Box 500
1100 Milwaukee Avenue
South Milwaukee, WI 53172
Attention: Vice President and
General Counsel
Telecopy No.: 414-768-5060
2. If to the holders of Registrable Securities: at the respective "Address
for Notices" specified opposite their names on Schedule A attached hereto.
Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given and delivered when transmitted by
telecopy or telegraph, personally delivered, or upon receipt if delivered by
mail, in each case given or addressed as aforesaid. Any party may, by written
notice given as aforesaid, change its address for all subsequent notices and
communications.
(c) Successors and Assigns. No holder of Registrable Securities may assign
any or all of its rights under this Agreement, or delegate any of or all of its
obligations under this Agreement, to any person or entity (including without
limitation any transferee of any Registrable Securities); and, no transferee of
any Registrable Securities shall have any rights granted under this Agreement as
a result of the transfer of any Registrable Securities to such transferee.
Notwithstanding anything to the contrary contained in this Section 11(c), a
holder of Registrable Securities may assign its rights or delegate its
obligations under this Agreement to one or more direct or indirect wholly owned
affiliates (a "Permitted Assignee"). This Agreement may not be assigned by the
Company. This Agreement shall be binding upon and shall inure to the benefit of
and be enforceable by the Company and each holder of Registrable Securities
listed on Schedule A attached hereto and to any successor to or any Permitted
Assignee of such holder and any successor of the Company.
(d) Entire Agreement. This Agreement supersedes all prior discussions and
agreements between the parties with respect to the subject matter hereof, and
contains the sole and entire agreement between the parties hereto with respect
to the subject matter hereof.
(e) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
(f) Severability. In the event that any provision of this Agreement, or the
application thereof to any person or circumstance, is held by a court of
competent jurisdiction to be invalid, illegal or unenforceable in any respect
under present or future laws effective during the effective term of any such
19
<PAGE>
provision, such invalid, illegal or unenforceable provision shall be fully
severable; and this Agreement shall then be construed and enforced as if such
invalid, illegal or unenforceable provision had not been contained in this
Agreement; and the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance from this Agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Remedies. Each holder of Registrable Securities, in addition to being
entitled to exercise all rights provided herein or granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
20
<PAGE>
IN WITNESS WHEREOF, the Company has executed this Agreement as of the date
first written above.
BUCYRUS-ERIE COMPANY
By: /s/ Phillip W. Mork
---------------------
Phillip W. Mork
President
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Schedule A to Registration Rights Agreement
-------------------------------------------
Name: Address for Notices:
----- --------------------
Jackson National Life 5901 Executive Drive
Insurance Company Lansing, Michigan 48911
Attention: Donald A. Pasant,
CEO and President
Each person who after the date The address or addresses
hereof files with the U.S. indicated on the cover page of
Securities and Exchange such beneficial holder's
Commission a Schedule 13D Schedule 13D as the name,
under the Securities Exchange address and telephone number
Act of 1934 within the time of the person authorized to
period contemplated by such receive notices and
Act indicating that such communications.
person is the beneficial owner
of not less than 1,000,000
shares of Common Stock which
were issued to such beneficial
holder pursuant to the terms
of the Plan.
