UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 8)*
Measurex Corporation
- ----------------------------------------------------------
(Name of Issuer)
Common Stock, par value $.01 per share
- ----------------------------------------------------------
(Title of Class of Securities)
583432 10 9
---------------------------------
(CUSIP Number)
K. Thor Lundgren, Esq.
Harnischfeger Industries, Inc.
13400 Bishops Lane
Brookfield, Wisconsin 53005
(414) 797-6844
- -----------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
December 29, 1994
---------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report to 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 / /. (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).
<PAGE>
SCHEDULE 13D
CUSIP NO. 583432 10 9 Page 2 of 23 Pages
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Harnischfeger Industries, Inc.
I.R.S. Identification No. 39-1566457
2. Check the Appropriate Box if a Member of a Group*
(a) /x/
(b) / /
3. SEC Use Only
4. Source of Funds*
WC
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
7. Sole Voting Power
Number of -0-
Shares
Beneficially 8. Shared Voting Power
Owned By 1,613,100 shares
Each
Reporting 9. Sole Dispositive Power
Person -0-
With
10. Shared Dispositive Power
1,613,100 shares
11. Aggregate Amount Beneficially Owned by Each Reporting
Person
1,613,100 shares
12. Check Box if the Aggregate Amount in Row 11 Excludes
Certain Shares* / /
13. Percent of Class Represented by Amount in Row (11)
10%
14. Type of Reporting Person
HC, CO
<PAGE>
SCHEDULE 13D
CUSIP NO. 583432 10 9 Page 3 of 23 Pages
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Reporting Person
HIHC, Inc.
I.R.S. Identification No. 51-0327827
2. Check the Appropriate Box if a Member of a Group*
(a) /x/
(b) / /
3. SEC Use Only
4. Source of Funds*
AF
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
7. Sole Voting Power
Number of -0-
Shares
Beneficially 8. Shared Voting Power
Owned By 1,613,100 shares
Each
Reporting 9. Sole Dispositive Power
Person -0-
With
10. Shared Dispositive Power
1,613,100 shares
11. Aggregate Amount Beneficially Owned by Each Reporting
Person
1,613,100 shares
12. Check Box if the Aggregate Amount in Row 11 Excludes
Certain Shares* / /
13. Percent of Class Represented by Amount in Row (11)
10%
14. Type of Reporting Person
CO
<PAGE>
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: January 25, 1995
HARNISCHFEGER INDUSTRIES, INC.
By: /s/ Eric B. Fonstad
-------------------------
Name: Eric B. Fonstad
Title: Assistant Secretary
HIHC, INC.
By: /s/ John P. Garniewski, Jr.
-------------------------
Name: John P. Garniewski, Jr.
Title: President
<PAGE>
APPENDIX I
Set forth below is the name, business address and
present principal occupation or employment and the name and
address of any corporation or other organization in which
such employment is conducted of each director and executive
officer of Harnischfeger Industries, Inc. and HIHC, Inc.
All of the directors and executive officers set forth below
are citizens of the United States, except for Mr. Jean-
Pierre Labruyere (a citizen of France) and Mr. Ian Lambert
(a citizen of the United Kingdom.
I. Harnischfeger Industries, Inc. -- Directors
-------------------------------------------
<TABLE>
<C> <S> <S> <S>
Name Principal Occupation Business Address
---- -------------------- ----------------
Donna M. Alvarado Independent Consultant c/o Harnischfeger
to the International Industries, Inc.
Foundation 13400 Bishops Lane
Brookfield, Wisconsin
53005
John D. Correnti President Chief Operating Nucor Corporation
Officer and Director 2100 Rexford Road
Nucor Corporation Charlotte, North
Carolina 28211
Don H. Davis, Jr. Executive Vice President Rockwell International
and Chief Operating Officer Corporation
Rockwell International 1201 South Second Street
Corporation Milwaukee, Wisconsin
53204
Harry L. Davis Professor of Creative University of Chicago
Management, Graduate 1101 E. 58th Street
School of Business Chicago, Illinois 60637
The University of Chicago
Robert M. Gerrity Director, New Holland n.v. Gerrity Partners
9 Southwick
Ann Arbor, Michigan
48105
Jeffery T. Grade Chairman and Chief Harnischfeger
Executive Officer Industries, Inc.
Harnischfeger Industries, 13400 Bishops Lane
Inc. Brookfield, Wisconsin
53005
Robert B. Hoffman Senior Vice President c/o Harnischfeger
and Chief Financial Officer Industries, Inc.
Monsanto Company 13400 Bishops Lane
Brookfield, Wisconsin
53005
Ralph C. Joynes Retired President and c/o Harnischfeger
Chief Operating Officer, Industries, Inc.
USG Corporation 13400 Bishops Lane
Brookfield, Wisconsin
53005
Herbert V. Kohler, Jr. Chairman of the Board Kohler Company
and President High Street
Kohler Company Kohler, Wisconsin 53044
Jean-Pierre Labruyere Chairman and Chief Societe Financiere
Executive of Labruyere, Labruyere Eberle
Eberle 70 Avenue Edouard-
Herriot, 71003
Macon France
Robert F. Schnoes Chairman, President and Freeport Corporation
Chief Executive Officer, 239 East Stephenson St.
Freeport Corporation Freeport, Illinois
61032
Donald Taylor Associate, Sullivan c/o Harnischfeger
Associates Industries, Inc.
13400 Bishops Lane
Brookfield, Wisconsin
53005
C. R. Whitney Retired Chairman and c/o Harnischfeger
Chief Executive Officer, Industries, Inc.
Allen-Bradley Company 13400 Bishops Lane
Brookfield, Wisconsin
53005
II. Harnischfeger Industries, Inc. -- Executive Officers
Jeffery T. Grade Chairman and Chief Harnischfeger
Executive Officer Industries, Inc.
13400 Bishops Lane
Brookfield, Wisconsin
53005
John A. McKay President and Chief Harnischfeger
Operating Officer Industries, Inc.
13400 Bishops Lane
Brookfield, Wisconsin
53005
Francis M. Corby, Jr. Executive Vice President for Harnischfeger
Finance and Administration Industries, Inc.
13400 Bishops Lane
Brookfield, Wisconsin
53005
K. Thor Lundgren Executive Vice President Harnischfeger
for Law and Government Industries, Inc.
Affairs 13400 Bishops Lane
Brookfield, Wisconsin
53005
Richard W. Schulze Senior Vice President Harnischfeger
and Special Assistant Industries, Inc.
to the Chairman and 13400 Bishops Lane
Chief Executive Officer Brookfield, Wisconsin
53005
James C. Benjamin Vice President and Harnischfeger
Controller Industries, Inc.
13400 Bishops Lane
Brookfield, Wisconsin
53005
Ian Lambert Vice President and Harnischfeger
Treasurer Industries, Inc.
13400 Bishops Lane
Brookfield, Wisconsin
53005
III. HIHC, Inc. -- Directors
Patrick M. Manager, State and Local Harnischfeger
Pennefeather Taxes, Harnischfeger Industries, Inc.
Industries, Inc. 13400 Bishops Lane
Brookfield, Wisconsin
53005
Jack B. Fishman Assistant Corporate Counsel Beloit Corporation
Beloit Corporation One St. Lawrence Avenue
Beloit, Wisconsin 53511
David T. Lancour Director, Corporate Beloit Corporation
Accounting One St. Lawrence Avenue
Beloit, Wisconsin 53511
IV. HIHC, Inc. -- Executive Officers
John P. Garniewski, President HIHC, Inc.
Jr. Bank of Delaware
Building, Suite 512
300 Delaware Avenue
Wilmington, Delaware
19801
Mary Guillory Vice President, Secretary HIHC, Inc.
and Treasurer Bank of Delaware
Building, Suite 512
300 Delaware Avenue
Wilmington, Delaware
19801
<PAGE>
SCHEDULE 13D
Item 1. Security and Issuer.
--------------------
This Statement relates to shares of Common Stock, par
value $. 01 per share (the "Common Stock"), of Measurex
Corporation, a Delaware corporation (the "Company").
The address of the Company's principal executive
office is One Results Way, Cupertino, California 95014.
Item 2. Identity and Background.
------------------------
This Statement is being filed on behalf of
Harnischfeger Industries, Inc., a Delaware corporation
("Harnischfeger"), the principal business and principal
executive offices of which are located at 13400 Bishops
Lane, Brookfield, Wisconsin 53005, and HIHC, Inc., a
Delaware corporation ("HIHC"), the principal business and
principal executive offices of which are located at Bank of
Delaware Building, Suite 512, 300 Delaware Avenue,
Wilmington, Delaware 19801 (Harnischfeger and HIHC are
sometimes referred to herein collectively as the "Reporting
Persons") . Harnischfeger owns 100% of the outstanding
common stock of HIHC.
Harnischfeger is a holding company for four principal
subsidiaries: Joy Technologies Inc., Syscon Corporation,
Harnischfeger Corporation and Beloit Corporation. Joy
Technologies Inc. is a leader in the worldwide development,
manufacturing, distribution and servicing of underground
mining equipment and a supplier of air pollution and ash
handling equipment. Syscon Corporation is engaged
principally in providing systems development, systems
integration and systems services to the United States
Government, government agencies and commercial enterprises.
Harnischfeger Corporation, through its Mining Equipment
Division, is the world's largest producer of electric mining
shovels, and a significant producer of electric and diesel-
electric draglines, buckets and hydraulic mining excavators,
and through its Material Handling Equipment Division,
produces lines of through-the-air material handling
equipment designed for a wide variety of users. Beloit
Corporation is a leader in the design and manufacture of
papermaking machinery and related products used in the paper
and pulp industries.
HIHC is a corporation formed by Harnischfeger for the
purpose of maintaining and managing intangible investments,
including holding shares of Common Stock.
Appendix I attached hereto and incorporated herein by
this reference sets forth (a) the name, (b) the business
address, (c) the citizenship, and (d) the present principal
occupation or employment and the name and address of any
corporation or other organization in which such employment
is conducted of each executive officer and director of
Harnischfeger and HIHC.
During the last five years, neither any Reporting
Person nor, to the best knowledge of each Reporting Person,
any of the executive officers or directors of such Reporting
Person listed on Appendix I hereto has been (a) convicted in
a criminal proceeding (excluding traffic violations or
similar misdemeanors) or (b) a party 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
future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any
violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
--------------------------------------------------
On May 30, 1990, Harnischfeger and the Company entered
into an Affiliation Agreement (the "Affiliation Agreement")
pursuant to which, among other things, Harnischfeger agreed
that neither it nor any of its affiliates (including HIHC)
(collectively, the "Investor Group") will, without the prior
written consent of a majority of the Company's Board of
Directors (the "Board of Directors"), acquire, directly or
indirectly, any of the Company's voting securities,
including shares of Common Stock (collectively, the "Voting
Securities"), if after such acquisition the members of the
Investor Group would beneficially own in the aggregate more
than 20% of the total combined voting power of the Company's
Voting Securities outstanding after any such acquisition.
As of the date of this Statement, the Company does not have
any outstanding Voting Securities other than its Common
Stock.
The Reporting Persons have purchased 3,640,000 shares
of Common Stock in open market transactions for an aggregate
consideration, including brokerage commissions, of
$69,000,065. The source of such funds was Harnischfeger's
working capital. As of December 29, 1994, the Company
repurchased 2,026,900 of these shares for an aggregate price
of $43,578,350.
To the best knowledge of the Reporting Persons, this
Item 3 is not applicable to any of the executive officers or
directors of such Reporting Persons listed on Appendix I
hereto.
Item 4. Purpose of Transaction.
-----------------------
Harnischfeger and the Company entered into the
Affiliation Agreement in order to facilitate a constructive
and mutually beneficial long-term relationship between the
companies. The Reporting Persons have acquired shares of
Common Stock in accordance with the terms and conditions of
the Affiliation Agreement for investment purposes and
without the intent of effecting a change in control of the
Company.
Pursuant to Section 1.01 of the Affiliation Agreement,
Harnischfeger has agreed that for so long as the Affiliation
Agreement shall remain in effect it will not, nor will it
permit any member of the Investor Group to, directly or
indirectly, without the prior written consent of the Company
duly authorized by a majority of its Board of Directors, (a)
acquire, directly or indirectly, by purchase or otherwise,
any Voting Securities (except by way of stock dividends or
other distributions or offerings made available to holders
of Voting Securities generally) if after such acquisition
the members of the Investor Group would beneficially own in
the aggregate more than 20% of the total combined voting
power of the Voting Securities outstanding immediately
following any such acquisition; provided, however, that (i)
in the event that (A)(1) a tender or exchange offer shall be
commenced as evidenced by the filing with the Securities and
Exchange Commission ("SEC") of a statement on Schedule 14D-1
by any Person or 13D Group (as each term is defined in the
Affiliation Agreement) (other than an affiliate of, or any
Person acting in concert with, any member of the Investor
Group) or (2) any Person or 13D Group shall file with the
SEC a statement on Schedule 13D, or shall file any amendment
thereto, proposing, in each such case to acquire Voting
Securities which, if added to the Voting Securities already
beneficially owned by such Person or 13D Group, would
represent more than 20% of the total combined voting power
of all Voting Securities then outstanding, and (B) either of
the following events shall have occurred: (1) such tender or
exchange offer by such Person or 13D Group shall have been
consummated, or (2) the Company shall have taken all actions
necessary to ensure that such Person or 13D Group shall not
be deemed either (x) an "interested stockholder" under
Section 203 of the Delaware General Corporation Law, or (y)
an "Acquiring Person" under the provisions of the Preferred
Share Rights Agreement, dated as of December 14, 1988,
between the Company and Bank of America, NT&SA (the "Rights
Agreement"), then the Investor Group shall be permitted to
(i) commence a tender or exchange offer on its own behalf
for Voting Securities without regard to the 20% limitation,
or (ii) make an Acquisition Proposal (as hereinafter
defined) to the Company's Board of Directors without regard
to the limitation set forth in clause (f) below; and (ii)
subject to certain exceptions, no member of the Investor
Group shall be obligated to dispose of any Voting Securities
if the aggregate percentage ownership of such Voting
Securities of the Investor Group shall be increased as a
result of a recapitalization of the Company or any other
action taken by the Company or its affiliates (other than
the Investor Group), including, without limitation, any
repurchase of Voting Securities by the Company; (b) deposit
any Voting Securities in a voting trust or subject them to
any arrangement or agreement with respect to the voting
thereof; (c) "solicit" proxies with respect to Voting
Securities under any circumstance or become a "participant"
in a "solicitation" (as such terms are defined in Regulation
14A of the General Rules and Regulations promulgated under
the Securities Exchange Act of 1934 (the "Exchange Act")) in
opposition to the recommendation of a majority of the
directors of the Company with respect to any matter; (d)
initiate, propose or otherwise solicit stockholders of the
Company for the approval of one or more stockholder
proposals relating to the Company at any time, or induce or
attempt to induce any other Person to initiate any
stockholder proposal with respect to the Company; (e) join a
partnership, limited partnership, syndicate or other group,
or otherwise act in concert with any other Person, for the
purpose of acquiring, holding, voting or disposing of Voting
Securities, or otherwise become a "person" within the
meaning of Section 13 (d) (3) of the Exchange Act (in each
case, other than solely with members of the Investor Group);
or (f) make any proposal to the Company's Board of Directors
or otherwise with respect to the purchase of additional
Voting Securities by any member of the Investor Group or
with respect to a merger or consolidation with, or a sale of
a substantial portion of the Company's assets to, any member
of the Investor Group, if such proposal would be of a kind
such that disclosure thereof to the public might reasonably
be required under applicable law (each such proposal, an
"Acquisition Proposal").
Pursuant to Section 1.02 of the Affiliation Agreement,
Harnischfeger has also agreed that for so long as the
Affiliation Agreement shall remain in effect it will not,
nor will it permit any member of the Investor Group to,
directly or indirectly, without the prior written consent of
the Company duly authorized by a majority of its Board of
Directors, offer, sell or transfer any Voting Securities,
other than (a) to Beloit Corporation, a Delaware corporation
and an 80%-owned subsidiary of Harnischfeger ("Beloit"), or
a wholly owned subsidiary of either Harnischfeger or
Beloit, or by any such Person to Harnischfeger; (b) pursuant
to Rule 144 ("Rule 144") of the General Rules and
Regulations promulgated under the Securities Act of 1933
(the "Securities Act") (without giving effect to subsection
(k) of Rule 144); (c) pursuant to any tender or exchange
offer that has been recommended to the stockholders of the
Company by the Board of Directors; (d) pursuant to a bona
fide public offering of Voting Securities (including any
sale made pursuant to Rule 144), provided that, in cases
other than public offerings of Voting Securities
underwritten by one or more underwriters selected by the
Company or any Unrelated Participant (as defined in the
Affiliation Agreement) pursuant to the terms of the
Affiliation Agreement, no sales of Voting Securities shall
be made to any Person or related group of Persons (other
than the aforementioned underwriter or underwriters) who is
known by any member of the Investor Group to be acquiring in
such public offering more than 2% of the total combined
voting power of all Voting Securities then outstanding, or
(e) as a result of any pledge or hypothecation to a bona
fide financial institution to secure a bona fide loan, or
the foreclosure of any lien or encumbrance which may be
placed upon any Voting Securities (whether voluntarily or
involuntarily).
Section 1.03 of the Affiliation Agreement provides
that, in the event that at any time during the term of the
Affiliation Agreement while the Investor Group shall
beneficially own in the aggregate more than 15% of the total
combined voting power of the Voting Securities then
outstanding (such ownership percentage, the "Pre-Dilution
Percentage"), the Company or any of its subsidiaries shall
take any action or series of actions the result of which
shall be to dilute the aggregate ownership interest of the
Investor Group to a level which shall be below 15% of the
total combined voting power of the Voting Securities
outstanding immediately following such action or actions
(the time of such action or the time of the first such
action in any series of actions, the "Dilution Trigger
Time", and the date of such action or the date of the last
action in any series of actions, the "Option Trigger Date"),
and such action or actions on the part of the Company or
such subsidiaries shall be the sole reason for such decrease
in such aggregate ownership interest of the Investor Group,
then the members of the Investor Group shall have the right
to purchase from the Company a sufficient number of newly
issued or treasury shares of Common Stock to restore such
aggregate ownership interest of the Investor Group to the
Pre-Dilution Percentage (the "Investor Purchase Right");
provided, however, that in the event that the Pre-Dilution
Percentage shall have been greater than 20% immediately
prior to the Dilution Trigger Time, the members of the
Investor Group shall, in exercise of the Investor Purchase
Right, be limited to purchasing from the Company a
sufficient number of shares of Common Stock to restore the
Investor Group to an aggregate percentage ownership level
equal to 20% of the total combined voting power of Voting
Securities then outstanding.
If the members of the Investor Group shall elect to
exercise the Investor Purchase Right provided for in Section
1.03 of the Affiliation Agreement, such Investor Purchase
Right shall be exercised prior to the second anniversary of
the Option Trigger Date and may only be exercised during
such two-year period in any of the periods which shall
commence on the third business day following the release for
publication of any quarterly or annual summary statement of
sales and earnings by the Company and shall end at the close
of the Company's business on the twelfth business day
following such release for publication (any such ten-
business day period, a "Window Period"); provided, however,
that, in addition to the foregoing, the members of the
Investor Group shall be entitled to exercise the Investor
Purchase Right in the ten business-day period immediately
preceding such second anniversary date (such exercise
period, the "Termination Period"). Upon exercise of the
Investor Purchase Right by any member of the Investor Group,
the Company shall be obligated to sell such shares of Common
Stock to such Investor Group member at a price per share
equal to the average closing sale price thereof on the
Composite Tape for the New York Stock Exchange Listed Stocks
for each of the days on which such shares shall be traded
during the Window Period in which the Investor Purchase
Right is exercised or during the Termination Period, as the
case may be.
Section 1.04 of the Affiliation Agreement provides
that, in the event that the aggregate percentage ownership
of the Investor Group of the total combined voting power of
the outstanding Voting Securities shall at any time increase
for any reason to more than 25% of such total combined
voting power, Harnischfeger shall (unless such ownership
shall be expressly permitted by the terms of the Affiliation
Agreement) upon the written request of the Company dispose
of, or cause the disposal of, such excess by promptly
selling in open market transactions a sufficient number of
Voting Securities such that after such sales the Investor
Group shall beneficially own not more than 25% of the total
combined voting power of the then-outstanding Voting
securities; provided, however, that, in no event shall
Harnischfeger be required to dispose of, or cause the
disposal of, Voting Securities pursuant to Section 1.04 of
the Affiliation Agreement at prices which shall be less than
the Repurchase Price (as hereinafter defined) for such
Voting Securities at such time, nor shall Harnischfeger be
required to dispose of, or cause the disposal of, such
Voting Securities (i) if such disposal would, in the
reasonable opinion of counsel to Harnischfeger, subject any
member of the Investor Group to liability under either
Section 16(b) or Section 10(b) of the Exchange Act or the
rules and regulations promulgated under the Exchange Act
with respect to such Sections, or (ii) during any period in
which the Investor Group shall have been requested to
refrain from offering or selling any securities of the
Company pursuant to the provisions of the Affiliation
Agreement.
In the event that Harnischfeger shall be required to
dispose of, or cause the disposal of, Voting Securities
pursuant to Section 1.04 of the Affiliation Agreement, but
shall for any reason fail to complete such disposal process
within one year from the date on which such disposal
requirement shall have been triggered or such longer period
as may be provided for below, the Company shall have the
right to repurchase a sufficient number of shares of Common
Stock from the Investor Group to reduce the Investor Group's
aggregate ownership interest to such 25%-level, provided
that the terms of such repurchase shall comply with, and be
subject to, the following requirements: (i) if requested by
Harnischfeger, the number of shares of Common Stock to be
repurchased by the Company from the members of the Investor
Group shall be equal to at least 20.01% of the total number
of shares owned by the Investor Group at such time; and (ii)
the price paid by the Company for such shares shall be the
greater of the Repurchase Price and the Market Price (as
hereinafter defined) of such shares on the date such Company
purchase right shall be exercised. The one-year period
described in the immediately preceding sentence shall be
tolled during any period in which any disposal of Voting
Securities by Harnischfeger or any other member of the
Investor Group would, in the reasonable opinion of counsel
to Harnischfeger, subject any member of the Investor Group
to liability under Section 16(b) of the Exchange Act or the
rules and regulations promulgated under the Exchange Act
with respect to such Section.
Pursuant to Section 2.01 of the Affiliation Agreement,
the Company shall have the option (the "Call Option") to
repurchase all, but not less than all, of the Voting
Securities beneficially owned by the Investor Group in the
event that any of the following shall occur: (i) the
cumulative dollar amount of all Qualified Orders for
Distribution Products and all Qualified Orders for Sales
Representation Products (as each term is defined in the
Affiliation Agreement) received by the Company shall not
exceed, in the aggregate, $64,335,000 for the three-year
period ending May 30, 1993; (ii) the cumulative dollar
amount of all Qualified Orders for Distribution Products and
all Qualified Orders for Sales Representation Products
received by the Company shall not exceed, in the aggregate,
$114,286,000 for the five-year period ending May 30, 1995;
(iii) Harnischfeger shall cease to own a majority of the
outstanding common stock of Beloit; (iv) Harnischfeger's
Continuing Directors (as defined in the Affiliation
Agreement) shall fail to constitute a majority of
Harnischfeger's Board of Directors; (v) no member of any
slate of directors recommended by Harnischfeger's Board of
Directors standing at any election of a class of directors
shall be elected to Harnischfeger's Board of Directors by
the stockholders of Harnischfeger in such election; or (vi)
Harnischfeger's Board of Directors shall approve, or
Harnischfeger shall execute, a definitive agreement
providing for a merger or consolidation of Harnischfeger, a
sale of all or substantially all of Harnischfeger's assets
or any similar acquisition transaction, other than (A) a
transaction pursuant to which more than 50% of the voting
securities of the surviving corporation shall be owned by
former stockholders of Harnischfeger, or (B) a transaction
where, immediately following such transaction,
Harnischfeger's Continuing Directors immediately prior to
the transaction shall constitute at least a majority of the
Board of Directors of the surviving corporation.
If the Company shall elect to exercise the Call Option
to purchase Voting Securities, such Call Option shall be
exercised within 30 days following the occurrence of any of
the triggering events described in clauses (i) through (vi)
of the immediately preceding paragraph and shall be settled
(except as provided below) within 10 days following exercise
thereof by payment of an amount equal to the product of the
number of shares or units of Voting Securities so to be
repurchased multiplied by a price per share equal to the
greater of the Repurchase Price for the relevant class of
Voting Securities on the date the Call Option shall be
exercised or the Market Price of such securities on such
date; provided, however, that in the event the Market Price
of the Voting Securities at the time such Call Option shall
be exercised is greater than the Repurchase Price thereof as
of such time the Company shall have the right, in lieu of
promptly settling the exercise of the Call Option, to direct
the members of the Investor Group to sell the Voting
Securities covered thereby in transactions in the open
market. The members of the Investor Group shall thereupon
sell such securities as soon thereafter as reasonably
practicable, provided, however, that under no circumstances
shall any member of the Investor Group be required to sell
any Voting Securities at a price which shall be less than
the Repurchase Price for such securities at such time; and
provided further, however, that the members of the Investor
Group shall not be required to dispose of Voting Securities
pursuant to Section 2.01 of the Affiliation Agreement (i) if
such disposal would, in the reasonable opinion of counsel to
Harnischfeger, subject any member of the Investor Group to
liability under either Section 16(b) or Section 10(b) of the
Exchange Act or the rules or regulations promulgated under
the Exchange Act with respect to such Sections, or (ii)
during any period in which the members of the Investor Group
shall have been requested to refrain from offering or
selling any securities of the Company pursuant to the
provisions of the Affiliation Agreement. If the members of
the Investor Group shall be unable to sell all of such
Voting Securities within 12 months following the date on
which the Company shall notify Harnischfeger of the
Company's election to require the Investor Group to satisfy
the Call Option by means of open market sales or such longer
period as may be provided for below, the Company shall be
obligated to either (A) purchase the remaining Voting
Securities at the greater of the Repurchase Price or the
Market Price for such securities at the time such purchase
shall be effected or (B) rescind its exercise of the Call
Option. The 12-month period described above in which the
members of the Investor Group shall be required to dispose
of the Voting Securities owned by the Investor Group shall
be tolled during any period in which any disposal of Voting
Securities by Harnischfeger or any other member of the
Investor Group would, in the reasonable opinion of counsel
to Harnischfeger, subject any member of the Investor Group
to liability under Section 16(b) of the Exchange Act or the
rules and regulations promulgated under the Exchange Act
with respect to such Section.
If the Company's Call Option shall be exercised due to
the occurrence of either of the events described in clauses
(i) or (ii) of the second preceding paragraph and if the
Repurchase Price shall be greater than the Market Price of
the Voting Securities at the time such Call Option shall be
exercised, then, notwithstanding the foregoing provisions,
settlement of the Call Option may be deferred by the Company
at its option until such time as the Market Price of such
Voting Securities shall be at least equal to the Repurchase
Price. If such increase in the Market Price shall not have
occurred by the first anniversary of the exercise of such
Call Option, the Company shall be obligated to either (i)
purchase such Voting Securities at the Repurchase Price for
such securities on such anniversary or (ii) rescind its
exercise of the Call Option.
As used in the Affiliation Agreement, the term
"Repurchase Price" per share or other unit of any class of
Voting Securities as of any date refers to the greater of
(i) the Investor Group's average basis in such class of
Voting Securities calculated on a per share or unit basis
using the equity method of accounting, or (ii) the quotient
of (A) the sum of the prices paid by the members of the
Investor Group for each share or unit of such class of
Voting Securities then owned by the Investor Group increased
in each case at a rate of 12% per annum from the date such
share or unit shall have been purchased by the respective
member of the Investor Group to the date the Repurchase
Price for such share or unit shall be determined, divided by
(B) the total number of shares or units in such class of
Voting Securities which are held by the Investor Group on
the date such Repurchase Price shall be determined, and the
term "Market Price" for any Voting Securities as of any date
refers to the average closing sale price for such Voting
Securities on the Composite Tape for New York Stock Exchange
Listed Stocks on the ten successive trading days next
preceding such date.
Section 2.02 of the Affiliation Agreement provides
that, as promptly as practicable following a request by
Harnischfeger, the Company shall use its best efforts to
cause the Board of Directors of the Company to take all
action necessary to elect William W. Goessel (Chairman and
Chief Executive Officer of Harnischfeger) to the Company's
Board of Directors, and thereafter, throughout the term of
the Affiliation Agreement, the Company shall nominate and
solicit proxies (and if properly executed and otherwise
valid, cause such proxies to be voted in accordance with the
instructions thereon) for election as directors at each
annual meeting of stockholders (or, if applicable, at any
special meeting of stockholders) of the Company, a number of
persons to be designated by Harnischfeger equal to the
product of (i) the number of directors of the Company
multiplied by (ii) a fraction, the numerator of which is the
voting power of the Voting Securities then owned by the
Investor Group and the denominator of which is the total
combined voting power of the Voting Securities then
outstanding, which product shall be rounded down to the
nearest whole number, provided, however, that in no event
shall such number be less than one. On May 30, 1990,
William W. Goessel was elected to the Company's Board of
Directors.
Pursuant to Article III of the Affiliation Agreement,
the members of the Investor Group have been granted certain
registration rights with respect to the Voting Securities
that such members acquire.
Pursuant to Section 5.01 (h) of the Affiliation
Agreement, the Company has represented to Harnischfeger that
the Company and its Board of Directors have each taken all
action necessary to ensure that the Investor Group shall
not, by virtue of making purchases of up to 20% of the total
combined voting power of the Voting Securities, be deemed
(i) an "Acquiring Person" under the Company's Rights
Agreement, or (ii) an "interested stockholder" under Section
203 of the Delaware General Corporation Law. In connection
therewith, the Company and Bank of America, NT&SA entered
into Amendment No. 1 to Rights Agreement, dated as of May
30, 1990, a copy of which was filed by the Company with the
Securities and Exchange Commission on June 12, 1990 in its
Current Report on Form 8-K dated May 30, 1990.
Pursuant to Section 6.01 (a) of the Affiliation
Agreement, either of the Company or Harnischfeger shall be
permitted to terminate the Affiliation Agreement on or
effective upon any anniversary date thereof commencing with
the seventh anniversary date thereof upon at least two
years' prior written notice to the other party thereto.
Pursuant to Section 6.01 (b) of the Affiliation
Agreement, the Affiliation Agreement shall automatically
terminate in the event that the Company shall have elected
to exercise the Call Option and all of the shares of Common
Stock held by Harnischfeger shall have been purchased or
otherwise disposed of pursuant thereto; provided, however,
that notwithstanding the exercise of such Call Option by the
Company, Section 1.01 and Article IV (containing certain
confidentiality provisions) of the Affiliation Agreement
shall remain in effect until the later to occur of: (i) the
seventh anniversary of the date of the Affiliation
Agreement, or (ii) the second anniversary of the date of the
final disposition of Voting Securities by the Investor Group
pursuant to the exercise of the Call Option; and provided
further, however, that, upon such exercise of the Call
Option, no additional Voting Securities may be acquired
directly or indirectly by the Investor Group notwithstanding
the terms of Section 1.01(a) of the Affiliation Agreement
and the proviso in such subsection (a) shall be deemed to be
deleted in its entirety.
Pursuant to Section 6.01 (c) of the Affiliation
Agreement, Harnischfeger shall be permitted to terminate the
Affiliation Agreement with respect to Sections 1.01, 1.02,
1.04 and 2.01 thereof in the event that any of the following
shall occur: (i) the Company's Continuing Directors (as
defined in the Affiliation Agreement) shall fail to
constitute a majority of the Company's Board of Directors;
(ii) no member of any slate of directors recommended by the
Company's Board of Directors standing at any election of a
class of directors shall be elected to the Company's Board
of Directors by the stockholders of the Company in such
election; (iii) the Company's Board of Directors shall
approve, or the Company shall execute, a definitive
agreement providing for a merger or consolidation of the
Company, a sale of all or substantially all of the Company's
assets or any similar acquisition transaction, other than
(A) a transaction pursuant to which more than 50% of the
voting securities of the surviving corporation shall be
owned by former stockholders of the Company, or (B) a
transaction where, immediately following such transaction,
both (1) the Company's Continuing Directors immediately
prior to the transaction shall constitute at least a
majority of the Board of Directors of the surviving
corporation and (2) no Person other than Harnischfeger shall
own 20% or more of the voting securities of the surviving
corporation; or (iv) the Company shall make a general
assignment for the benefit of creditors or any similar
action (whether voluntary or involuntary) shall be taken by
or against the Company under the Bankruptcy Reform Act of
1978.
Section 6.01(d) of the Affiliation Agreement provides
that, in the event that at any time after the Investor Group
shall have acquired at least 10% of the total combined
voting power of the Voting Securities outstanding at such
time, the Investor Group's aggregate ownership percentage of
such total combined voting power shall be reduced to a
percentage below 10% for reasons other than (i) actions
taken by the Company or any of its subsidiaries which shall
have had the effect of diluting such ownership or (ii) an
exercise of the Call Option by the Company which shall have
subsequently been rescinded by the Company, then the rights
described in Sections 2.02 and 2.03 (containing certain
information rights) and Article III of the Affiliation
Agreement shall terminate immediately upon such reduction in
ownership interest below such 10% level.
As described above, pursuant to Section 1.01(a) of the
Affiliation Agreement, Harnischfeger has agreed that it will
not acquire, and has agreed that it will not permit any
other members of the Investor Group to acquire, any Voting
Securities if after such acquisition the members of the
Investor Group would beneficially own in the aggregate more
than 20% of the total combined voting power of the Voting
Securities outstanding after such acquisition. As of the
date of this Statement, the Reporting Persons beneficially
own Voting Securities possessing, in the aggregate,
approximately 5.6% of the Company's total combined voting
power (see Item 5). The Reporting Persons may determine to
purchase additional shares of Voting Securities to the
extent permitted by the Affiliation Agreement, subject to
market conditions and other factors. In addition, subject
to the terms and conditions of the Affiliation Agreement and
depending on market conditions and other factors, the
Reporting Persons may determine to dispose of some or all of
their Voting Securities.
The summary of certain provisions of the Affiliation
Agreement set forth in this Item 4 and elsewhere in this
Statement is not intended to be complete and is qualified in
its entirety by reference to the detailed provisions of the
Affiliation Agreement, a copy of which was filed by the
Company with the Securities and Exchange Commission on June
12, 1990 in its Current Report on Form 8-K dated May 30,
1990.
Beloit and the Company are parties to a Joint
Marketing, Sales and Development Agreement, dated as of May
30, 1990 (the "Joint Marketing Agreement"), pursuant to
which, among other things, Beloit has agreed to use its best
efforts to introduce and promote the sale or lease of
certain products and systems manufactured by the Company to
all of Beloit's existing and potential customers. In
addition, pursuant to the Joint Marketing Agreement, Beloit
has granted to the Company an exclusive worldwide license to
make and sell Beloit's In-Line SliceMate products. The
summary of certain provisions of the Joint Marketing
Agreement set forth in this Item 4 is not intended to be
complete and is qualified in its entirety by reference to
the detailed provisions of the Joint Marketing Agreement, a
copy of which was filed by the Company with the Securities
and Exchange Commission on June 12, 1990 in its Current
Report on Form 8-K dated May 30, 1990.
Except as set forth in this Item 4 and elsewhere in
this Statement, neither the Reporting Persons nor, to the
best knowledge of such Reporting Persons, any of the
executive officers or directors of such Reporting Persons
listed on Appendix I hereto, has any plans or proposals
which relate to or would result in (a) the acquisition by
any person of additional securities of the Company, or the
disposition of securities of the Company, (b) an
extraordinary corporate transaction, such as a merger,
reorganization, or liquidation, involving the Company or any
of its subsidiaries, (c) a sale or transfer of a material
amount of assets of the Company or any of its subsidiaries,,
(d) any change in the present board of directors or
management of the Company, including any plans or proposals
to change the number or term of directors or to fill any
existing vacancies on the board, (e) any material change in
the present capitalization or dividend policy of the
Company, (f) any other material change in the Company's
business or corporate structure, (g) changes in the
Company's charter or bylaws or other actions which may
impede the acquisition of control of the Company by any
person, (h) causing a class of securities of the Company to
be delisted from a national securities exchange or to cease
to be authorized to be quoted in an inter-dealer quotation
system of a registered national securities organization, (i)
a class of equity securities of the Company becoming
eligible for termination of registration pursuant to Section
12 (g) (4) of the Securities Exchange Act of 1934, or (j)
any action similar to any of those enumerated above.
As of December 29, 1994, the Company, Harnischfeger
and HIHC entered into a Stock Repurchase Agreement whereby
the Company repurchased 2,026,900 shares of the Voting
Securities and amended Section 1.03(a) of the Affiliation
Agreement to change the figure "15%" to "10%".
Item 5. Interest in Securities of the Issuer.
-------------------------------------
(a) HIHC is the direct beneficial owner of 1,613,100
shares of Common Stock, representing approximately 10% of
the Company's issued and outstanding Common Stock. By
virtue of the fact that HIHC is a wholly owned subsidiary of
Harnischfeger, Harnischfeger may be deemed to be the
indirect beneficial owner of the Common Stock owned by HIHC.
Thus, Harnischfeger may be deemed to be the indirect
beneficial owner of 1,613,100 shares of Common Stock,
representing approximately 10% of the Company's issued and
outstanding Common Stock. The percentages calculated in
this Item 5 are based upon 16,136,858 shares of Common Stock
outstanding as of December 27, 1994, as reported by the
Company.
Except as set forth above, neither the Reporting
Persons nor, to the best knowledge of the Reporting Persons,
any of the executive officers or directors of such Reporting
Persons listed on Appendix I hereto, beneficially owns any
Common Stock.
(b) HIHC has the power to vote and dispose of the
shares of Common Stock indicated above as owned by it.
However, by virtue of the fact that HIHC is a wholly owned
subsidiary of Harnischfeger, Harnischfeger may be deemed to
have shared power to vote and dispose of the shares of
Common Stock indicated above as owned by HIHC.
(c) The only transaction effected by the Reporting
Persons in shares of Common Stock during the past 60 days
was the sale of 2,026,900 shares of Common Stock to the
Company as of December 29, 1994 at a per share price of
$21.50 for an aggregate amount of $43,578,300.00.
Except as set forth above, neither the Reporting
Persons nor, to the best knowledge of the Reporting Persons,
any of the executive officers or directors of such Reporting
Persons listed on Appendix I hereto, has effected any
transaction in shares of Common Stock during the past 60
days.
(d) To the best knowledge of the Reporting Persons,
no person other than the Reporting Persons has the right to
receive or the power to direct the receipt of dividends
from, or the proceeds from the sale of, the Common Stock.
(e) Not Applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the Issuer.
- -------------------------------------------------------
Except as set forth in Item 4, to the best knowledge
of the Reporting Persons, no contracts, arrangements,
understandings or relationships (legal or otherwise) exist
among the persons named in Item 2 or between such persons
and any other person with respect to any securities of the
Company, including but not limited to transfer or voting of
any such securities, finders' fees, joint ventures, loan or
option arrangements, puts or calls, guarantees of profits,
division of profits or loss, or the giving or withholding of
proxies.
Item 7. Material to be Filed as Exhibits.
---------------------------------
Exhibit A -- Amendment No. 1 to Rights Agreement, dated as
of May 30, 1990, by and between Measurex Corporation and
Bank of America, NT&SA (incorporated as an exhibit hereto by
reference to the Current Report on Form 8-K dated May 30,
1990 and filed by Measurex Corporation with the Securities
and Exchange Commission on June 12, 1990 (commission File
No. 1-8770)).
Exhibit B -- Affiliation Agreement, dated as of May 30,
1990, by and between Measurex Corporation and Harnischfeger
Industries, Inc. (incorporated as an exhibit hereto by
reference to the Current Report on Form 8-K dated May 30,
1990 and filed by Measurex Corporation with the Securities
and Exchange Commission on June 12, 1990 (Commission File
No. 1-8770)).
Exhibit C -- Joint Marketing, Sales and Development
Agreement, dated as of May 30, 1990, by and between Measurex
Corporation and Beloit Corporation (incorporated as an
exhibit hereto by reference to the Current Report on Form 8-
K dated May 30, 1990 and filed by Measurex Corporation with
the Securities and Exchange Commission on June 12, 1990
(commission File No. 1-8770)).
Exhibit D -- Joint Filing Agreement, dated as of July 25,
1990, by and between Harnischfeger Industries, Inc. and
HIHC, Inc. (incorporated as an exhibit hereto by reference
to the Schedule 13D filed with the Securities and Exchange
Commission on July 26, 1990).
Exhibit E -- Stock Repurchase Agreement, dated as of
December 29, 1994, by and between Harnischfeger Industries,
Inc., HIHC, Inc. and Measurex Corporation.
EXHIBIT E
STOCK REPURCHASE AGREEMENT
THIS STOCK REPURCHASE AGREEMENT (this
"Agreement"), dated as of December 29, 1994, is entered into
between Measurex Corporation, a Delaware corporation (the
"Company"), and Harnischfeger Industries, Inc., a Delaware
corporation ("Harnischfeger"), and HIHC, Inc., a Delaware
corporation ("Investor").
RECITALS
--------
WHEREAS, the Company and Harnischfeger are
parties to that certain Affiliation Agreement, dated as of
May 30, 1990 (the "Affiliation Agreement") and the Company
and Beloit Corporation ("Beloit"), a subsidiary of
Harnischfeger, are parties to that certain Joint Marketing,
Sales and Development Agreement dated as of May 30, 1990
(the "Marketing Agreement"); and
WHEREAS, Investor is a wholly owned subsidiary
of Harnischfeger and the direct beneficial owner of certain
of the company's outstanding Common Stock par value $.01 per
share, acquired in connection with the Affiliation
Agreement; and
WHEREAS, Harnischfeger has determined to cause
Investor to sell to the Company and the Company has
determined to purchase from Investor an aggregate of
2,026,900 shares of the Company's outstanding Common Stock,
par value $.01 per share, held by Investor (the "Shares");
and
WHEREAS, the Company and Harnischfeger have
determined to make certain amendments to the Affiliation
Agreement;
NOW, THEREFORE, in consideration of the premises
and the mutual covenants and agreements set forth herein,
the parties hereto agree as follows:
1. The Company will purchase from Investor
and Investor will sell to the Company the Shares for an
aggregate price of Forty-Three Million, Five Hundred
Seventy-Eight Thousand, Three Hundred Fifty Dollars
($43,578,350) (the "Purchase Price")in full consideration
for its repurchase of the Shares.
2. In payment of the Purchase Price, the
Company will deliver to Investor a Promissory Note in the
form attached hereto as Exhibit A (the "Note").
3. Investor will deliver to the Company a
stock certificate representing the Shares (the
"Certificate"), duly endorsed for transfer to the Company
(or cause the Shares to be transferred by wire transfer to
an account designated by Company for such purpose), in
exchange for the Note. The Company will promptly return to
Investor a stock certificate representing the remaining
shares of the Company's Common Stock, par value $.01 per
share, represented by the Certificate in excess of the
Shares.
4. The Company represents and warrants to
Harnischfeger and Investor that the Board of Directors of
the Company has authorized the execution and delivery of
this Agreement and the performance of its obligations
contained herein. Notwithstanding the provisions of Section
1.02 of the Affiliation Agreement, the Company hereby
consents to the sale of the Shares by Investor as
contemplated hereby.
5. Harnischfeger and Investor have taken all
necessary corporate action and possess the requisite
corporate authority to authorize the execution and delivery
of this Agreement and the Note and the performance of its
obligations contained therein.
6. Section 1.03(a) of the Affiliation
Agreement is hereby modified in the following respects:
(a) the figure "15%" in lines three and
eight thereof is deleted and the figure "10%" is inserted in
its place;
(b) the term "the total combined voting
power of the Voting Securities then outstanding" appearing
in lines three and four thereof is deleted and replaced by
the term "the total number of securities of the Company
entitled to vote generally for the election of directors,
including Shares, or outstanding securities convertible into
such voting securities, but excluding options, warrants and
other rights to acquire such voting securities (collectively
"Outstanding Securities")";
(c) the term "the total combined voting
power of the Voting Securities then outstanding" appearing
in lines eight and nine thereof is deleted and replaced by
the term "the Outstanding Securities"; and
(d) in all other respects, Section
1.03(a) shall remain unchanged.
7. Section 6.01(d) of the Affiliation
Agreement is hereby modified in the following respects:
(a) to delete the term "10% of the total
combined voting power of the Voting Securities outstanding
at such time" appearing in lines two, three and four thereof
and insert the term "10% of the Outstanding Securities at
such time" in its place;
(b) to delete the term "total combined
voting power" appearing in line five and insert the term
"Voting Securities" in its place;
(c) the reference to "2.03(b)" in the
tenth line thereof is deleted and replaced by "2.03"; and
(d) in all other respects, Section
6.01(d) shall remain unchanged.
8. With the exception of the waiver contained
in paragraph 4 and the modifications contained in paragraphs
6 and 7 of this Agreement, all covenants, undertakings and
agreements contained in the Affiliation Agreement and the
Marketing Agreement are and shall remain in effect and the
respective obligations and rights of the Company,
Harnischfeger and Beloit therein are not otherwise amended.
9. This Agreement may not be modified,
amended, altered or supplemented except by a written
agreement signed by the Company, Harnischfeger and Investor
which agreement shall be authorized by all necessary
corporate action of each party, provided that paragraphs 1,
2 and 3 may be modified, amended, altered or supplemented
without the written agreement of Harnischfeger and provided
further that paragraphs 6 and 7 may be modified, amended,
altered or supplemented without the written agreement of
Investor. All representations, promises or other
inducements made to cause either party to enter into this
Agreement are set forth herein. Each party may waive any
condition to the obligations of such party hereunder; all
such waivers to be in writing.
10. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the
successors of the parties hereto. Except as otherwise
provided herein, this Agreement shall not be assignable.
11. Each party hereto shall pay its own
expenses incurred in connection with this Agreement.
12. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall
be given (and shall deemed to have been duly given upon
receipt) by delivery, by hand, by mail (registered or
certified mail, postage prepaid, return receipt requested),
by overnight courier or by telex or telecopy as follows:
If to the Company:
Measurex Corporation
One Results Way
Cupertino, California 95014
Attention: Chief Executive Officer
With copies to:
Brobeck, Phleger & Harrison
Spear Street Tower
One Market Plaza
San Francisco, California 94105
Attention: John W. Larson, Esq.
If to Harnischfeger:
Harnischfeger Industries, Inc.
13400 Bishops Lane
Brookfield, Wisconsin 53005
Attention: Chief Executive Officer
With copies to:
Harnischfeger Industries, Inc.
13400 Bishops Lane
Brookfield, Wisconsin 53005
Attention: General Counsel
If to Investor:
HIHC, Inc.
Bank of Delaware Building
Suite 512, 300 Delaware Avenue
Wilmington, Delaware 19801
With copies to:
Harnischfeger Industries, Inc.
13400 Bishops Lane
Brookfield, Wisconsin 53005
Attention: General Counsel
or to such other address as any party may have furnished to
the other in writing in accordance herewith.
13. If any term or provision of this Agreement
is held by a court of competent jurisdiction or other
authority to be invalid, void, unenforceable or against its
regulatory policy, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected,
impaired or invalidated.
14. This Agreement contains the entire
understanding of the parties with respect to its subject
matter. There are no restrictions, agreements, promises,
warranties, covenants or undertakings other than those
expressly set forth herein with respect to any matter. This
Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter.
15. No failure or delay on the part of either
party in the exercise of any power, right or privilege
hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of
any other right, power or privilege. All rights or remedies
existing under this Agreement are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
16. This Agreement shall be governed by and
interpreted in accordance with the internal laws of the
State of Delaware.
17. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the Company and Investor
have caused this Agreement to be executed as of the day and
year first above written.
COMPANY:
MEASUREX CORPORATION
By:/s/
--------------------------
Senior Vice President and
Chief Financial Officer
HARNISCHFEGER:
HARNISCHFEGER INDUSTRIES, INC.
By: /s/ Jeffery T. Grade
--------------------------
Chairman and Chief
Executive Officer
INVESTOR:
HIHC, INC.
By:/s/ John P. Garniewski, Jr.
---------------------------
Title:
</TABLE>
