SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) May 9, 1995
TEREX CORPORATION
(Exact Name of Registrant as Specified in Charter)
Delaware 1-10702 13-1531521
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
500 Post Road East, Westport, Connecticut 06880
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (203) 222-7170
(Former Name or Former Address, if Changed Since Last Report)
Item 2. Acquisition and Disposition of Assets.
On May 9, 1995, Terex Corporation ("Terex" or the "Company"), through
Terex Cranes, Inc., a recently formed Delaware corporation which is a wholly
owned subsidiary of the Terex ("Terex Cranes"), completed the acquisition of
99.18% of the shares of P.P.M. S.A., a societe anonyme ("PPM Europe"), from
Potain S.A., a societe anonyme, and 100% of the capital stock of Legris
Industries, Inc., a Delaware corporation which owns 92.4% of the capital stock
of PPM Cranes, Inc., a Delaware corporation ("PPM North America;" and PPM North
America together with PPM Europe collectively referred to as "PPM") from Legris
Industries S.A., a societe anonyme ("Legris France"). PPM designs,
manufactures and markets mobile cranes and container stackers primarily in
North America and Western Europe under the brand names of PPM, P&H (trademark
of Harnischfeger Corporation) and BENDINI.
The purchase price, together with amounts needed to repay indebtedness of
PPM required to be repaid in connection with the Acquisition, consisted of (i)
approximately $92.6 million in cash and (ii) shares of Series A Redeemable
Exchangeable Preferred Stock of Terex Cranes having an aggregate liquidation
preference of approximately $25.9 million, subject to adjustment (the "Seller
Preferred Stock"). The Seller Preferred Stock bears no dividend and is
mandatorily redeemable in seven years and three months from the date of
issuance. The Seller Preferred Stock may be redeemed at any time for cash (to
the extent permitted pursuant to the provisions of the Indenture (as defined
herein)) or, under certain circumstances, for shares of common stock, par value
$.01 per share (the "Cranes Common Stock"), of Terex Cranes. The purchase
price is subject to adjustment calculated by reference to the consolidated net
asset value of PPM as determined by an audit to be conducted following the
consummation of the Acquisition. In addition, the liquidation preference and
the redemption price of the Seller Preferred Stock may be adjusted based upon
the unit shipments of the mobile crane industry in Western Europe during the
second and third years following the consummation of the Acquisition.
The funds for the cash portion of the purchase price and the repayment of
debt of the acquired businesses were obtained from the private placement to
institutional investors of units consisting of the Company's 13-1/4% Senior
Secured Notes due 2002 and common stock appreciation rights.
Item 7. Financial Statements, Pro Forma Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired and
(b) Pro Forma Financial Information.
Prior to the acquisition by the Company, PPM was part of a consolidated
group of Legris France, an entity organized under the laws of France, for
financial reporting purposes. As a result, financial statements of the
acquired businesses meeting the requirements of Regulation S-X promulgated
under the Securities Act of 1933, as amended, are not currently available.
Accordingly, it is not practicable to provide the required historical and pro
forma financial statements at this time. The required financial statements
will be filed on Form 8-K/A as soon as practicable, but in any event within 60
days after this Current Report on Form 8-K is filed.
(c) Exhibits
10.1 Share Purchase Agreement, as amended.
10.2 Certificate of Designation of Terex Cranes, Inc. with respect to its
Series A Redeemable Exchangeable Preferred Stock.
10.3 Stockholders Agreement dated as of May 9, 1995 by and among Terex
Corporation, Legris Industries S.A., Potain S.A. and Terex Cranes, Inc.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: May 24, 1994
TEREX CORPORATION
By:/s/ Richard L. Evans
Richard L. Evans
Controller, Principal Accounting Officer
COMPOSITE
CONFORMED
COPY
SHARE PURCHASE AGREEMENT
between
TEREX CRANES, INC.
and
LEGRIS INDUSTRIES and POTAIN
for the purchase and sale of the shares of
P.P.M. and LEGRIS INDUSTRIES INC.
Dated: October 19, 1994
as amended by
the Amendment dated December 20, 1994,
the Amendment dated March 3, 1995 and
the Amendment dated April 28, 1995
BETWEEN:
- TEREX CRANES, INC., a company incorporated under the laws of Delaware
with its registered office at 1209 Orange Street, Wilmington, Delaware, United
States;
represented hereby by Mr. Marvin B. Rosenberg duly authorized for the purposes
hereof,
hereafter the "Purchaser"
OF THE FIRST PART
AND:
- LEGRIS INDUSTRIES, a societe anonyme, incorporated under the laws of
the Republic of France, with a share capital of 165,874,280 French Francs, with
its registered office at Rennes (35000), registered with the trade and
companies registry of Rennes under number B 786 450 197;
represented hereby by Mr. Emmanuel Faber duly authorized for the purposes
hereof,
hereafter "LEGRIS INDUSTRIES"
POTAIN, a societe anonyme, incorporated under the laws of the
Republic of France, with a share capital of 90,994,500 French Francs, with its
registered office at Ecully (69130), registered with the trade and companies
registry of Lyon under number B 632 045 837;
represented hereby by Mr. Emmanuel Faber duly authorized for the purposes
hereof,
hereafter "POTAIN"
LEGRIS INDUSTRIES and POTAIN both being jointly and severally liable and being
collectively referred to as the "Sellers",
OF THE SECOND PART
The Purchaser and the Sellers being collectively referred to as the "Parties"
and individually as a "Party".
TABLE OF CONTENTS
Page
Article I Definitions 4
Article II Purchase and Sale of the Shares 8
Article III Purchase Price 8
Article IV Audit 9
Article V Conditions Precedent 10
Article VI Transfer of Shares 12
Article VII Covenants of the Purchaser 13
Article VIII Covenants of the Sellers 14
Article IX Cooperation between the Parties 15
Article X Representations and Warranties of the Sellers 15
Article XI Indemnification 24
Article XII Miscellaneous Provisions 27
Article XIII Governing law, Disputes and Arbitration 28
Article XIV Notices 29
Article XV Execution of Originals 30
WHEREAS:
LEGRIS INDUSTRIES, who is the controlling shareholder of POTAIN, holds
indirectly through POTAIN 99,18% of the shares issued by P.P.M. and directly
all the shares issued by LEGRIS INDUSTRIES INC.
The Companies, as defined hereafter are active in the design, manufacture,
marketing, distribution and rental of mobile handling equipment, primarily
telescopic cranes, stackers and related spare parts.
An organizational chart of the Companies is attached as Schedule 1.
The Purchaser has expressed to the Sellers its interest in acquiring P.P.M. and
LEGRIS INDUSTRIES INC. and the Sellers have indicated to the Purchaser that
they were willing to sell their shares in these companies.
NOW THEREFORE, IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE I - DEFINITIONS
As used herein the following terms shall have the meanings specified below:
"Aggregate Purchase Price": the aggregate price to be paid by the
Purchaser in consideration for the French Shares and the US Shares in
accordance with Article 3.1 hereof, subject to adjustment in compliance with
Article 3.3 hereof;
"Agreement": this share purchase agreement together with the attached
Schedules which form an integral part hereof;
"Audit": the audit to be performed in order to determine any Price
Adjustment in compliance with Article IV hereof;
"Auditors": the accounting firms designated by the Sellers and the
Purchaser to review the Financial Statements pursuant to Article IV of this
Agreement, i.e. respectively HSD Castel Jacquet and Coopers and Lybrand;
"Audit Firm": Guy Barbier et Associes;
"Business Day": any day on which banks are opened for business in both
Paris (France) and New York (N.Y., USA);
"Companies": P.P.M. and LEGRIS INDUSTRIES INC. together with the
companies identified in Schedule 2 hereto (individually a "Company");
"Consolidated Net Asset Value": the net asset value of the Companies
determined in the manner set forth in Schedule 3 hereto;
"Consolidated Net Indebtedness": the net total indebtedness of the
Companies to the financing institutions, except the financial leases agreements
which, for the purposes of this definition, are not included in the net total
indebtedness;
"Environmental Laws": all laws, regulations, conventions and agreements
whatsoever relating to pollution or protection of the environment as they exist
and as they are construed by the relevant authorities at the date hereof;
"Financial Statements": the Consolidated Net Asset Value and the
Consolidated Net Indebtedness of the Companies as of April 30, 1995 to be
established in the manner set forth in Schedule 3 hereto;
"French Inter-Company Debt": any and all amounts due by P.P.M. and
affiliated companies to LEGRIS INDUSTRIES and/or POTAIN as more precisely
identified in Schedule 4 hereto;
"French Guarantees": the commitments by LEGRIS INDUSTRIES and/or
POTAIN identified in Schedule 5 hereto;
"French Purchase Price": the price to be paid by the Purchaser in
consideration for the French Shares as defined in Article 3.1(i) hereafter;
"French Shares": 1,255,157 shares of P.P.M. representing 99.18% of its
outstanding share capital;
"LEGRIS INDUSTRIES INC.": LEGRIS INDUSTRIES, Inc. a corporation
incorporated under the laws of the State of Delaware, having its registered
office at Wilmington, 1209 Orange Street, Delaware 19801, United States of
America;
"Indemnifiable Damage": shall have the meaning ascribed to it in Article
11.2 (a) of the Agreement;
"Intra-Group Business": shall have the meaning ascribed to it in Schedule
6 hereto;
"Legal Audit": the Audit to be conducted by the Legal Auditors to review
the legal condition of the Companies in accordance to the provisions of Article
5.1.5;
"Legal Auditors": the firms of legal counsels to the Purchaser in charge
of the Legal Audit, i. e.:
for P.P.M. and the French Companies: SCP Simeon & Associes
for LEGRIS INDUSTRIES INC. and the US Companies: Robinson Silverman
Pearce Aronsohn & Berman
for Bendini SPA: Magnone & Ardito
for PPM Krane GmbH and for Baulift GmbH: Wessing Berenberg-Gossler
Zimmermann Lange;
"Material Adverse Effect": a material adverse effect upon the business,
assets or results of operations of the Companies;
"Open Issues": any objection or observation by any of the Parties relating
to the Financial Statements and the Consolidated Net Asset Value which would
remain unresolved by the Auditors;
"P.P.M.": P.P.M., S.A. a societe anonyme incorporated under the laws of
the Republic of France with a share capital of 126,554,400 French Francs,
having its registered office at Zone Industrielle de la Saule, Monceau les
Mines, 71300 Monceau les Mines, registered with the trade and companies
registry of Chalon sur Saone, under number B 726 820 236;
"Price Adjustment": the amount of the adjustment to the Aggregate Purchase
Price to be made in compliance with Article 3.3 hereof;
"Pro-forma Financial Statements": the projected Consolidated Net Asset
Value and Consolidated Net Indebtedness of the Companies as of April 20, 1995
established in the manner set forth in Schedule 3 hereto applied on a
consistent basis;
"PTC": POTAIN TOWER CRANES, a company incorporated under the laws of
the State of New York, with its registered office at Roslyn;
"Sellers' Financing Facilities": the agreements with respect to the
repayment of the French and US Inter-Company Debt which will be delivered to
the Sellers on the Transfer Date in accordance with Article 6.4;
"Shares": collectively the French Shares and the US Shares;
"Terex Corporation": a company incorporated under the laws of the
State of Delaware, with its principal office at 500 Post Road East, Westport,
CT 06680;
"Terex Cranes": a newly formed company incorporated under the laws of
Delaware which is a wholly owned subsidiary of Terex Corporation, with no
assets and liabilities except those resulting from the entering into force of
this Agreement, the consummation and financing of the transactions contemplated
herein and the contribution of substantially all of the assets (subject to
liabilities) of Koehring Cranes and Mark Industries divisions of Terex;
"Transfer Date": the date on which the French Shares and, the US Shares
will be delivered to the Purchaser in accordance with Article 6.1 hereafter;
"US Guarantees": the commitments by LEGRIS INDUSTRIES identified in
Schedule 8 hereto;
"US Inter-Company Debt": any and all amounts due by LEGRIS INDUSTRIES INC.
and affiliated companies directly to LEGRIS INDUSTRIES as more precisely
identified in Schedule 7 hereto;
"US Purchase Price": the price to be paid by the Purchaser in
consideration for the US Shares as defined in Article 3.1(ii) hereafter;
"US Shares": 200 shares of LEGRIS INDUSTRIES INC. constituting all the
issued and outstanding stock of LEGRIS INDUSTRIES INC.
ARTICLE II - PURCHASE AND SALE OF THE SHARES
2.1. Subject to the terms and conditions of this Agreement, the Purchaser
undertakes to acquire:
(i) the French Shares from POTAIN who undertakes to sell to the Purchaser
such shares; and
(ii) the US Shares from LEGRIS INDUSTRIES who undertakes to sell to the
Purchaser such shares.
2.2. The Purchaser will be the owner of the Shares on the Transfer Date, and as
from the same date, the Purchaser will take subject to and with benefit of all
the rights and actions attaching to the shares.
2.3. The sale of the Shares is accepted by the Purchaser under the conditions
generally accepted in practice and under law, and under the specific terms and
conditions set out in this Agreement.
ARTICLE III - PURCHASE PRICE
3.1. The Purchaser agrees to pay in consideration for:
(i) the French Shares, twenty million (20,000,000) French Francs to
POTAIN; and
(ii) the US Shares, one hundred and forty nine million (149,000,000)
French Francs to LEGRIS INDUSTRIES;
corresponding to an Aggregate Purchase Price of one hundred and sixty nine
million (169,000,000) French Francs. The Aggregate Purchase Price will be
subject to the adjustment as set forth in Article 3.3 below.
3.2. The Aggregate Purchase Price was determined on the basis of the Pro-Forma
Financial Statements as of April 20, 1995 attached hereto as Schedule 10,
showing a Consolidated Net Asset Value as of such date equal to one hundred
million (100,000,000) French Francs.
3.3. In the event the Financial Statements determined by the Audit differ from
the amounts set forth in paragraph 3.2 above, the Aggregate Purchase Price will
be adjusted accordingly by any shortfall or surplus.
In the event of an increase of the Aggregate Purchase Price, the Purchaser
shall have the option to either pay such surplus to the Sellers in cash or by
the issuance of additional shares of preferred stock described in Schedule
14(b) hereto having an initial liquidation/redemption amount equal to the
amount of such surplus. The payment of the surplus or the issuance of
additional shares of preferred stock shall be made within 15 days (i) from the
notification by the Auditors of their conclusion pursuant to Article IV (fifth
paragraph) or (ii) from the decision of the Audit Firm or the independent
arbitrator pursuant to Article IV (sixth paragraph).
In the event of a decrease of the Aggregate Purchase Price, the Sellers
shall have the option to either reimburse such surplus in cash or reimburse
such surplus to the Purchaser by surrendering shares of preferred stock
described in Schedule 14(b) hereto having an initial liquidation
preference/redemption amount equal to the amount of such surplus. The payment
in cash of the amount of the decrease or the surrendering of the preferred
stock shall be made within 15 days (i) from the notification by the Auditors of
their conclusion pursuant to Article IV (fifth paragraph) or (ii) from the
decision of the Audit Firm or the independent arbitrator pursuant to Article IV
(sixth paragraph).
ARTICLE IV - AUDIT
For the purposes of the final determination of the Aggregate Purchase Price in
accordance with Article 3.3 above, the Parties agree they will both take all
necessary steps to procure the preparation of the Financial Statements
including, but not limited to, a physical inventory to be commenced on May 2,
1995 jointly by the Sellers, the Purchaser and the Auditors.
The Financial Statements will be prepared not later than six (6) weeks after
the Transfer Date.
The Auditors will review the Financial Statements and, if necessary, indicate
what adjustments need to be made.
The Parties undertake to supply the Auditors with any relevant documents and
working papers which are necessary or which may reasonably be requested by the
Auditors in order to carry out their instructions.
The Auditors must notify the Parties of their conclusions on the Financial
Statements within fifteen (15) days from the date they are given the Financial
Statements by the Parties. In the event that the Auditors do not notify their
conclusions to the Parties by such date, the Purchaser may during the next
fifteen (15) days ask Coopers & Lybrand to give its own conclusions who shall
provide said conclusions within a period of eight (8) days from being
instructed.
In the event of a disagreement upon those conclusions, the Parties may submit
the Open Issues for arbitration by the Audit Firm. In such case, the Audit Firm
will provide its decision within fifteen (15) days after referral by the first
of the Parties. Such decision shall be final and binding on the Parties. In the
event that the Audit Firm refuses to take on the role of arbitrator, the
independent arbitrator will be appointed by the President of the Tribunal de
Commerce de Paris, at the instance of either Party. The costs of the
arbitration will be born equally by the Parties.
ARTICLE V - CONDITIONS PRECEDENT
5.1. The obligations of the Parties to consummate the purchase and the sale of
the French Shares and the US Shares are subject to the prior fulfillment of the
following conditions:
5.1.1. the authorization of the transfer of the French Shares to the
Purchaser by the Treasury Department of the French Ministry of the Economy and
Finance (Direction du Tresor du Ministere de l'Economie et des Finances);
5.1.2. the expiry or termination of the waiting period under the Hart
Scott Rodino Antitrust Improvements Act of 1976 (HSR); and no court or other
government body or public authority shall have issued an order, stay, judgment
or decree under any antitrust regulation which shall then be in effect
restraining or prohibiting the transfer of the Shares pursuant to this
Agreement;
5.1.3. the granting of full and unconditional releases from the bank
guarantees listed in Schedule 11 (a) in substantially the form specified for
each such guarantee in Schedule 11 (b);
5.1.4. the delivery to the Purchaser of a statement of the Chairman of
LEGRIS INDUSTRIES that between the date hereof and the Transfer Date there has
not been any event of an exceptional nature substantially affecting the
Business of the Companies taken as a whole, provided however that such event
shall not have been caused by the Purchaser;
5.1.5. the completion of the Legal Audit confirming that no non
compliance with the representations and warranties made under Articles 10.4,
10.6.1, 10.6.5 (third paragraph) and 10.11 hereafter has been identified by the
Legal Auditors;
5.1.6. the business of the Companies has been carried out in accordance
with the covenant of Article 8.2 hereafter and the Purchaser shall have
received a certificate dated the Transfer Date signed by the Chairman of LEGRIS
INDUSTRIES to that effect;
5.1.7. the delivery to the Purchaser of a certificate of the Chairman
of LEGRIS INDUSTRIES confirming that no third party has claimed a right, based
on serious grounds, on, or raised a serious claim against, the Shares or
against the validity and enforceability of this Agreement;
5.1.8. the Purchaser shall have received a certificate dated the
Transfer Date signed by the Treasurer of Legris Industries to the effect that
the aggregate amount of the Consolidated Net Indebtedness and the French and US
Inter - Company Debt does not exceed four hundred and seven million
(407,000,000) French Francs and that the financial leases agreements do not
exceed twenty million (20,000,000) French Francs;
5.1.9. Sellers shall have received the Sellers Financing Facilities on
substantially similar terms to those described in Schedule 14(a) and (b) and
such other terms as shall be reasonably satisfactory to the Sellers;
5.1.10 the delivery to the Sellers of a letter from Terex Corporation,
Terex Cranes and the Purchaser in the form specified in Schedule 34;
5.1.11 the delivery to the Sellers of a letter from Terex Corporation
in the form specified in Schedule 35;
5.1.12 the payment on Transfer Date by Purchaser to Sellers of the
exact amount that has to be paid on May 5, 1995 to May 10, 1995 to the
suppliers of the Companies, provided that Sellers provide Purchaser on Transfer
Date with a list of the suppliers and the corresponding amounts due to be paid
with funds advanced by Sellers, certified as true and accurate by the Treasurer
of LEGRIS INDUSTRIES and acknowledging that payment of these listed suppliers
has been funded by, or is the responsibility of the Sellers.
Sellers shall repay within ten (10) days after notice by Purchaser, any of
the amounts shown on the list mentioned hereinabove which would appear after
Audit, not to have been paid to the corresponding supplier. Documents
evidencing the absence of payment shall be attached to the Purchaser's notice.
The conditions precedent listed under paragraphs 5.1.3, 5.1.9, 5.1, 10, 5.1.11
and 5.1.12 can be waived solely by the Sellers; the conditions precedent listed
under paragraphs 5.1.4, 5.1.5, 5.1.6, 5.1.7 and 5.1.8 can be waived solely by
the Purchaser.
5.2. The Parties undertake to use their best efforts to see to it that the
conditions precedent set forth in Article 5.1 are fulfilled as soon as possible
and each Party will promptly notify the other of the fulfillment of any such
condition precedent.
5.3. If any of the conditions precedent set forth in Article 5.1 is not
fulfilled on or prior to May 9, 1995 6:00 pm New York time, or any other date
mutually agreed upon by the Parties, then the Parties shall be released from
any of their obligations pursuant to this Agreement, subject however to the
right for each Party to seek damages from another for not having fulfilled its
obligation to use its best efforts to consummate this Agreement.
ARTICLE VI - TRANSFER OF SHARES
6.1. The transfer of the French Shares and the US Shares shall take place on
the Transfer Date which shall be any Business Day on or prior to the fifth
(5th) Business Day after the last of the conditions precedent set forth in
Article 5.1 has been fulfilled (with exception for this purpose of the
conditions set forth in Article 5.1.3 and 5.1.8 which will be fulfilled on the
Transfer Date).
6.2. On the Transfer Date, the Sellers shall deliver or cause to be delivered
to the Purchaser:
6.2.1. share transfer orders (ordres de mouvements) duly signed by
POTAIN relating to all the French Shares;
6.2.2. share certificates, with appropriate stock powers attached,
relating to all the US Shares;
6.2.3. letters from those members of the board of directors of the
Companies listed in Schedule 13 stating that they are resigning from their
position in the relevant board as of the Transfer Date and that they have no
claim against the Companies;
6.2.4. minutes of the work council of P.P.M. and, as required by law
from the other Companies evidencing they have been informed of the transfer of
French Shares in compliance with Article L-432-1 of the French Labour Code;
6.2.5. the certificates from the Chairman of LEGRIS INDUSTRIES in
compliance with Article 5.1.4, 5.1.6 and 5.1.7 hereof.
6.3. On the Transfer Date, the Purchaser shall deliver or cause to be
delivered:
6.3.1. the French Purchase Price to POTAIN by wire to a specified
account or any other means acceptable to the Sellers;
6.3.2. the US Purchase Price to LEGRIS INDUSTRIES by wire to a
specified account or any other means acceptable to the Sellers;
6.3.3. evidence that the bank debts specified in the statement provided
by Article 8.6 have been paid to the banks identified in the said statement by
the Purchaser;
6.3.4. written and unconditional releases from the bank guarantees
listed in Schedule 11(a) in substantially the form specified for each such
guarantee in Schedule 11 (b);
6.4. On the Transfer Date, the Parties will execute and exchange documents
evidencing the Sellers' Financing Facilities as set forth in Schedule 14 hereto
relating to the reimbursement of the French Inter-Company Debt and the US
Inter-Company Debt in the form specified in Schedule 14;
ARTICLE VII - COVENANTS OF THE PURCHASER
The Purchaser covenants with the Sellers:
7.1. To file no later than two (2) Business Days following the public
announcement by the Parties of the sale of the Shares under this Agreement, the
HSR notice and (ii) one (1) Business Day following the public announcement of
the sale of the Shares under this Agreement, the request for authorization of a
foreign investment in France. The Purchaser shall file or cause to be filed
with the Federal Trade Commission and the United States Department of Justice
any notifications required to be filed by their respective "ultimate parent
entities" under the Antitrust Improvements Act and the rules and regulations
promulgated thereunder with respect to the transactions contemplated herein.
The Purchaser shall use its best efforts to respond promptly to any requests
for additional information made by either of such agencies and to cause the
waiting periods under the Antitrust Improvements Act to terminate or expire at
the earliest possible date.
7.2. To use its best efforts to cause, as soon as possible after the Transfer
Date, the granting of written and unconditional releases from the French
Guarantees and US Guarantees other than those specified in Schedule 11 (a).
7.3. To cause the Companies within three (3) months after the Transfer Date to
change their corporate name to delete the words "LEGRIS INDUSTRIES" and/or
"POTAIN" and to waive any rights they may have acquired to use the words
"LEGRIS INDUSTRIES" and/or "POTAIN" as part of their current corporate name and
generally to cause all Companies to delete any reference to "LEGRIS INDUSTRIES"
and/or "POTAIN", in connection with any trademark or trade name, or stationery
or business cards or otherwise.
7.4. To continue the Intra-Group Business in the conditions described in
Schedule 6 for a reasonable period of time which shall be at least until July
31, 1995 to allow the Parties to agree as to whether they wish to continue such
Intra-Group Business.
7.5. Not to oppose, and cause the Companies not to oppose, the termination of
any and all forward rates or foreign exchange agreements, options agreements,
swaps agreements and generally any hedging operations engaged by LEGRIS
INDUSTRIES on behalf of the Companies in order to limit, suppress or reduce
their foreign exchange or interest rates exposures.
7.6. To prepare the Financial Statements no later than six (6) weeks after the
Transfer Date and to complete the Legal Audit no later than three weeks from
the date hereof.
ARTICLE VIII - COVENANTS OF THE SELLERS
The Sellers covenant with the Purchaser:
8.1. To file no later than two (2) Business Days following the public
announcement by the Parties of the sale of the Shares under this Agreement, the
HSR notice. The Sellers shall file or cause to be filed with the Federal Trade
Commission and the United States Department of Justice any notifications
required to be filed by their respective "ultimate parent entities" under the
Antitrust Improvements Act and the rules and regulations promulgated thereunder
with respect to the transactions contemplated herein. The Sellers shall use
their best efforts to respond promptly to any requests for additional
information made by either of such agencies and to cause the waiting periods
under the Antitrust Improvements Act to terminate or expire at the earliest
possible date.
8.2. That from the date hereof until the Transfer Date, save as provided for in
this Agreement, (i) the business of the Companies will be carried out in the
ordinary course and in a manner consistent with the way it has been previously
conducted, (ii) the Companies will not enter into any agreement outside the
ordinary course of business and reasonable administration of their business,
(iii) except as agreed in Article 8.3, the Companies will not dispose of any
asset and incur any liability (including contingent or conditional liabilities)
outside the ordinary course of business and (iv) none of the Companies shall
grant any general increase in salaries, amend the employment terms of its
employees, amend their by-laws, distribute or decide to distribute any
dividends or capital to holders of any outstanding shares of such companies,
and more generally take any corporate action not required by its ordinary and
reasonable administration;
8.3. To cause P.P.M. to dispose of its 20 % interest in SRAG at a price at
least equal to the price specified in Schedule 16, prior to the Transfer Date;
8.4. To be in possession, at the Transfer Date, of the resignation letters of
all the Directors of the Companies except those specified in Schedule 17.
8.5. To continue the Intra-Group Business in the conditions described in
Schedule 6 for a reasonable period of time which shall be at least until July
31, 1995 to allow the Parties to agree as to whether they wish to continue such
Intra-Group Business.
8.6 To deliver to the Purchaser, no later than one (1) Business Day prior to
the Transfer Date a complete and detailed statement indicating the name of the
banks and the exact amount of the bank debts to be refinanced by the Purchaser
at the Transfer Date, such amount not exceeding two hundred forty-eight million
(248,000,000) French Francs.
8.7. That, from the date hereof until the Transfer Date, the Companies will
insure that no suppliers have given notice to any of the Companies of their
intention to cease supplying the Companies because of their delinquent terms of
payment.
8.8. To take all necessary steps to terminate, without effect to the Purchaser
or the Companies whatsoever, any and all forward rates or foreign exchange
agreements, option agreements, swaps agreements and generally any hedging
operations engaged by LEGRIS INDUSTRIES on behalf of the Companies.
ARTICLE IX - COOPERATION BETWEEN THE PARTIES
The Purchaser and the Sellers mutually undertake to fully cooperate without any
restriction with a view to perform to the fullest extent all their obligations
under this Agreement and shall do so in conformity with all applicable laws and
regulations.
The Sellers will provide all reasonable assistance to enable the Purchaser to
complete the Legal Audit and to procure its financing for the purposes hereof,
except if such assistance is likely to have adverse consequences for the
Companies and/or the Sellers.
The Purchaser will provide all reasonable assistance to enable the Sellers to
complete the Audit and to prepare the Financial Statements pursuant to Article
IV hereinabove.
Each Party will effect all formalities and furnish all information or
documentation for the performance of this Agreement at any time to the other
Parties.
ARTICLE X - REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers agree to be bound by the terms of the representations and
warranties which follow and which they warrant are true and accurate as of the
date hereof and shall remain true and accurate as of the Transfer Date.
10.1. Information supplied
Prior to the signing of this Agreement, the Sellers have given the Purchaser
access to certain information listed in Schedule 18 hereto relating to the
Companies.
To the best of the Sellers knowledge, such information was true and accurate in
all material respect at the date on which such information was disclosed and
remains true and accurate at the date hereof.
10.2. Accounts of the Companies
The Sellers hereby represent and warrant to the Purchaser that all the audited
balance sheets, profit and loss accounts and appendices of each of the
Companies have been prepared in accordance with generally accepted accounting
principles in force in the country the Companies are located in and the
accounting practices of the Companies and fairly present the assets and
liabilities, financial condition and results of operations of the Companies.
10.3. Organization and good standing of the Companies
10.3.1. Organization and good standing of P.P.M.
P.P.M. is duly organized, validly existing and in good standing under the
laws of the Republic of France and is duly qualified to do business in each
jurisdiction in which the failure to be so qualified would have a Material
Adverse Effect.
The French Shares all have the same voting rights and a right to the
profit and the proceeds upon liquidation prorata to their par value and there
are no agreements or understandings of any kind relating to shareholder rights
to the French Shares, except for the provisions of the articles of association
of P.P.M. ("Statuts"), and the provisions of this Agreement. The right to
receive dividends on any French Shares has not been transferred, assigned,
mortgaged or sold in any manner.
Except as set forth above, P.P.M. does not have any issued or outstanding
securities of any kind or nature and there are no outstanding options, warrants
or other rights of any kind to acquire, or obligations to issue, shares of
capital stock of any class of, or other equity interest in P.P.M.
10.3.2. Organization and good standing of LEGRIS INDUSTRIES INC.
LEGRIS INDUSTRIES INC. is duly organized, validly existing and in good
standing under the laws of the State of Delaware and is qualified to do
business in each jurisdiction in which the failure to be so qualified would
have a Material Adverse Effect.
The authorized capital stock of LEGRIS INDUSTRIES INC. consists of 200
shares of common stock par value 100 US dollars per share, all of which are
outstanding, fully paid and non-assessable. There are no outstanding options,
warrants or other rights of any kind to acquire, or obligations to issue,
shares of capital stock of any class of, or other equity interest in LEGRIS
INDUSTRIES INC.
10.3.3. Organization and good standing of PPM CRANES INC.
PPM CRANES INC. is duly organized, validly existing and in good standing
under the laws of the State of Delaware and is qualified to do business in each
jurisdiction in which the failure to be so qualified would have a Material
Adverse Effect.
The authorized capital stock of PPM CRANES INC. consists of (a) 8,000
shares of Class A Common Stock, par value 0.01 US dollars per share, 5,000 of
which are outstanding and owned by LEGRIS INDUSTRIES INC. and (b) 2,000 shares
of Class B Common Stock, 413 of which are outstanding and owned by
Harnischfeger, a corporation organized under the laws of the State of
Delaware. All of the outstanding capital stock of PPM CRANES INC. is fully paid
and non-assessable. There are no outstanding options, warrants or other rights
of any kind to acquire, or obligations to issue, shares of capital stock of any
class of, or other equity interest in PPM CRANES INC.
10.3.4. Other Companies
Each of the other Companies is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and is
duly qualified to do business in each jurisdiction where the failure to be so
qualified would have a Material Adverse Effect. Each of said Companies is owned
and controlled as shown on the organizational chart attached as Schedule 1.
10.4. Capacity of the Sellers and ownership of the Shares
10.4.1. The Sellers have full right, power, capacity and authority to
execute and deliver this Agreement and the documents to be delivered by them
under this Agreement and to consummate the transactions hereby contemplated and
to take all other actions required to be taken pursuant to the provisions
hereof, and this Agreement is valid and binding upon, and enforceable against,
the Sellers and their successors and assigns in accordance with the respective
terms subject to the effects of bankruptcy, insolvency and other similar laws
relating or affecting creditors rights.
10.4.2. On the Transfer Date, the transfer of the Shares to the
Purchaser will have received all necessary permissions or authorizations from
the Companies, their shareholders, Board of Directors and Supervisory Board, in
compliance with all the applicable laws, regulations and statutory provisions.
The transfer of the Shares will not result in any breach of contract by the
Companies or the Sellers.
10.4.3. The Sellers, as of the date hereof, own, directly or indirectly,
all the Shares, which shares are not subject to any lien, pledge, security
interest, encumbrance, usufruct or any other right in favour of a third party.
10.4.4. Title to PPM Cranes, Inc. Shares
The transfer of the Shares pursuant to this Agreement shall not affect the
good and valid title held by LEGRIS INDUSTRIES, INC. to the shares of PPM
Cranes, Inc., free and clear of any liens, claims, encumbrances or rights of
any kind, except for those created by the Purchaser or its affiliates.
10.5. Intra-Group Business
Except as specified in Schedule 6, the Companies are not a party to any adverse
contract, lease or other arrangements with the Sellers, or any of their
affiliates, including without limitation, any loan transaction or service
arrangement.
10.6. Real and Personal Property
10.6.1. Title to Properties; Absence of Liens and Encumbrances
The Companies have valid title to each parcel of real estate owned by the
Companies ("Owned Real Property") and the Owned Real Property is owned free and
clear of any lien, covenant, right of way or other limitation or restriction
(including but not limited to zoning or other use restrictions) on the use of
such property ("Use Restriction") which would have a significant adverse effect
on the value of such Owned Real Property except as listed and described on
Schedule 19.
10.6.2. Leased Real Property
The Companies enjoy quiet and undisturbed possession under all significant
leases of real property ("Leased Real Property"). The Companies are not in
default of any significant obligation under any of the leases pursuant to which
the Companies lease any Leased Real Property.
No Use Restriction currently exists which significantly interferes with
the present use of the Leased Real Property.
10.6.3. Leased Tangible Personal Property
The Companies enjoy quiet and undisturbed possession under all leases or
uses of significant tangible personal property leased or used by the Companies.
The Companies are not in default of any significant obligation under any
of the leases pursuant to which the Companies lease tangible personal property.
10.6.4. Owned Personal Tangible Property
Each personal tangible property owned by the Companies is owned free and
clear of any lien, encumbrance, covenant, right or other limitation or
restriction, except as described on Schedule 20.
10.6.5. Condition and Sufficiency of Real and Tangible Personal Property
All the assets used by the Companies or necessary for them to run their
business are held within the Companies, excluding all of the parts inventory
which is the subject of a distribution agreement with SPPR which is owned by
POTAIN acting as "gerant" of SPPR.
Except as stated in Schedule 21, the Owned or Leased Real Property and the
Owned or Leased Tangible Personal Property of the Companies are in a reasonable
state of repair and condition and are suitable and sufficient for the conduct
of the Companies' business as such business is presently conducted.
The Companies have not entered into any agreement or restriction of an
exceptional nature which would impair the value or the use of their Owned Real
Property, Leased Real Property, Owned Tangible Personal Property and/or Leased
Tangible Personal Property, and no material claim or action in connection with
the real properties of the Companies is pending.
10.7. Intellectual property
Schedule 22 (a) is a list of all patents, trademarks, trade names, know-how,
technology, license agreements or evidences of a proprietary interest in or the
right to use any intellectual property whatsoever (the "Intangible Rights"),
which are effectively used in, and material to, the normal course of the
business of the Companies as conducted at the date hereof.
To the best of the Sellers knowledge, and except as disclosed in Schedule 22
(b) there exist no adverse claim to the rights, title and interest or licenses
of the Companies to the Intangible Rights. The Companies are not aware of any
infringement by them of any third party's Intangible Rights.
All the Intangible Rights have been duly registered, are effective and comply
with all applicable laws. The Companies have paid any fees and charges related
to the Intangible Rights.
10.8. Insurance
The Companies have the benefit of insurance policies in force which cover
under normal conditions the risks regularly issued against companies operating
a business similar to those of the Companies. To the Sellers' knowledge, the
Companies have not committed or omitted any act which could reasonably be
expected to render null or inoperative such insurance policies or which can
give rise to their cancellation, and no notice of cancellation or termination
has been received with respect thereto.
10.9. Bank Accounts and Safe Deposit Boxes
Schedule 23 contains a list of (a) all bank accounts maintained by the
Companies, together with the names of authorized signatories on each such
account, and (b) the locations of all safe deposit boxes maintained by the
Companies, together with the names of the persons authorized with access
thereto.
10.10. Loans and others
The information (in particular the amount, duration, security) relating to the
loans, credit contracts, overdraft agreements or other banking facilities of
the Companies set forth in Schedule 24, is true and accurate in all material
respects.
10.11. Secured Debts and others
The Companies have not entered into any guarantee of any kind whatsoever, to
secure any debts, obligations or undertakings of any of their subsidiaries,
individual shareholders or of any third parties, except for the guarantees
described in Schedule 25, and except for guarantees of no material amount or
with no Material Adverse Effect.
10.12. Customers and Suppliers
The Sellers and the Companies have received no information pursuant to which
any significant customer and/or supplier of the Companies intends to cease or
substantially reduce, immediately or in the future, its commercial
relationships with the Companies, particularly as a result of the transfer of
the Shares to the Purchaser, and the Sellers have no reason to believe that any
such customer and/or supplier is likely to do so.
10.13. Employees and Labour matters
a) The current employees of the Companies, along with details of their
seniority, are listed in Schedule 26 (a). No significant sum is due to any
present or former employee or director or representative of the Companies in
connection with their employment or pursuant to any other contract other than
rights to payments accrued but not yet payable or the repayment of professional
expenses.
b) Save as disclosed in Schedule 26 (b), the Companies have incurred no
significant obligations of any kind toward former employees, especially
unfulfilled obligations resulting from the breach by the Companies of any
labour or service contract or from indemnities for dismissal or indemnities for
unjustified dismissal or from not having complied with the obligation to
reinstate an employee.
c) All applicable regulations relating to workers' councils and to the
representation of the employees in the Companies have been duly respected in
all material respects
d) Except as stated in Schedule 26 (c) no employment or other contract has
been concluded with any current or former employee or director which contains
provisions of an exceptional nature, such as dismissal indemnities exceeding
those provided by the applicable collective convention or provisions granting
the beneficiary exceptional specific advantages, including special employees'
benefits.
e) Except as stated in Schedule 26 (d) none of the executives or managers
employed at January 1st, 1994 have resigned from the Companies, nor given
notice in writing of an intention to resign.
f) All pension and employee insurance plans in which the Companies
participate are listed in Schedule 26 (e).
g) In accordance with applicable rules and regulations, the representatives
of the Companies' Labour forces will have been, on the Transfer Date, duly and
properly informed of the intended transfer of the Shares to the Purchaser.
h) The Sellers have no reason to believe that the transfer will give rise to
any dispute between the Purchaser and the employees of the Companies.
10.14. Taxes and other returns
The Companies have, at all times, duly and regularly completed and filed all
required tax, customs and social security returns required to be filed and have
paid or provided for all direct or indirect taxes, duties, levies and social
security charges, including any interest, fines or penalties which are due or
for which an accrual should be recorded in the Companies accounts.
Except as disclosed on Schedule 27, there does not exist any claim, request for
information or dispute with any government authority concerning taxes, customs
or social security charges.
10.15. Defective Products and Warranties
To the best of the Sellers' knowledge, none of the products manufactured or
sold by any of the Companies until the date hereof is defective in any manner
which would justify a demand for cancellation of the sale and/or for damages in
excess of 500,000 French Francs on the part of a purchaser, consumer or other
third party.
None of the Companies gives any product performance warranty to their customers
in excess of eighteen months or three thousand hours. Except as set forth in
Schedule 28 or in circumstances where such guarantee is covered by way of an
arrangement with a third party entity which effectively assumes the risk of
such guarantee, no product liability, warranty or similar claims have been made
against any of the Companies except routine claims which, in the aggregate, are
not significant in amount.
10.16. Litigation
Except as indicated in Schedule 29, there is no judicial, criminal,
administrative or arbitral actions, suits or proceedings pending, or, to the
Sellers knowledge threatened, against the Companies in which the risk would be
in excess of one million (1,000,000) French Francs.
The Purchaser and the Companies will not incur any liability or expense in
connection with the judgment of January 31, 1994 entered into against Century
II GmbH, nor with respect to the Berthelemy dispute. Should the Purchaser
and/or PPM Cranes Inc. incur any Indemnifiable Damage in connection with the
judgement of January 31, 1994 against Century II GmbH, (i) the Indemnifiable
Damage will not be taken into account for the computation of the deductible and
Ceiling set forth in Article 11.5 a) and (ii) the Purchaser and/or PPM Cranes
Inc. shall as soon as possible repay to the Sellers any amount recovered from a
third party. In this respect, the Sellers shall have sole responsibility for
the conduct of any appropriate and reasonable action to recover such amount and
the Purchaser commits itself to fully cooperate and to cause PPM Cranes Inc. to
fully cooperate with the Sellers in this respect provided such action causes no
harm to the business of PPM Cranes Inc. The Sellers shall bear all costs
related to such action.
Furthermore, there has been no court or administrative decision or order,
imposing on the Companies, obligations which would in the aggregate have a
Material Adverse Effect.
10.17. Compliance with Laws and Regulations
The Companies have all licenses, franchises, permits and authorizations
necessary for the ownership of their assets and for the conduct of their
current business and there has been no material breach of the terms of any such
licences, franchises, permits and authorizations.
The Companies have complied, in all material respects, with all laws,
regulations, orders, judgments applicable to their respective businesses as
well as all conditions in respect of the required permits and authorizations.
10.18. Environmental Matters
The Companies are in compliance with Environmental Laws with respect to their
assets or the operation of their businesses.
None of the operations of the Companies is subject to any judicial or
administrative proceedings alleging the violation of or liability under any
Environmental Laws.
10.19. Contracts outside the ordinary course of business
As far as contracts outside the ordinary course of business are concerned and
except as indicated in Schedule 30 (a), none of the Companies has concluded a
contract which (i) specifies that it has joint or unlimited liability and/or
(ii) may be terminated early or be adversely affected by as a result of the
transfer of the Shares.
10.20. Breach of contracts
Except as indicated in Schedule 30 (b), none of the Companies are in breach of
any of their contracts or have failed to comply with their terms in any
material respect.
10.21. Contracts with the Sellers
Except as disclosed on Schedule 31 there are no contracts or agreements between
any of the Companies and any shareholder of LEGRIS INDUSTRIES owning 10% or
more of its share capital.
10.22. Agreements to repurchase
Except as explained in Schedule 32:
(i) the Companies have not entered into any agreements to repurchase any
equipment sold by them at fixed prices or at prices calculated to exceed the
market value at the time of repurchase;
(ii) the Companies have not given to any persons options to sell equipment
to the Companies;
(iii) the Companies have not provided any guarantees of the market
value of equipment to any person.
10.23. Events since July 1, 1994
From July 1, 1994 until the date hereof :
a) save as disclosed in Schedule 33, the business of each of the Companies
has been carried on in the ordinary course, and in a consistent manner in order
to assure the continuity of such business, and the Companies have not entered
into any significant agreement or taken any significant decision outside the
ordinary course of business;
b) the Companies have disposed of no significant assets, and have incurred no
significant liabilities (including contingent or conditional liabilities)
outside the ordinary course of business.
ARTICLE XI - INDEMNIFICATION
11.1. Indemnification Right
Subject to the provisions of Article 11.5, the Sellers shall indemnify the
Purchaser or the Companies against any Indemnifiable Damage.
11.2. Indemnifiable Damages
a) For the purposes of this Agreement, "Indemnifiable Damage" shall mean any
direct damage, cost or expense (including reasonable legal fees) resulting from
any inaccuracy of any of the Sellers representations and warranties set out in
Article 10 of this Agreement.
b) For the purpose of this Agreement, a direct damage, cost or expense shall
be construed as the damage, cost or expense actually suffered by the Purchaser
or a Company, reduced by the benefit (i.e. (i) reduction or refund of taxes,
and/or (ii) amount paid pursuant to insurance policies) arising from the event
giving right to indemnification according to this Agreement.
c) Any breach of the representations and warranties granted by the Sellers to
the Purchaser pursuant to this Agreement due to any set of facts or
circumstances taken into consideration for the purpose of establishing the
Financial Statements and for determining the Consolidated Net Asset Value,
shall be deemed cured by the price adjustment pursuant to Article III and shall
under no circumstances be considered as creating an Indemnifiable Damage.
11.3. Claims
The Purchaser shall promptly notify the Sellers of any Indemnifiable Damage
(such notification being hereafter referred to as the "Claim"). Each Claim
shall contain the amount of the Indemnifiable Damage, the way it has been
computed, and the documents evidencing the Indemnifiable Damage will be
attached to the Claim.
Generally, the Purchaser commits itself (i) to fully cooperate and to make
available to the Sellers complete information relating to the event(s)
resulting, directly or indirectly, in an Indemnifiable Damage, and (ii) to
allow the Sellers to participate in the defense of the Claim at their expense.
The Sellers shall be entitled to have made available to them all information
and documents relating to the Companies and (to the extent applicable) to the
Purchaser, reasonably required for such purposes.
11.4. Claims or Actions from Third parties
a) Notwithstanding the foregoing, any claim resulting from an audit by the
tax, customs, or any other governmental authorities, or resulting from a claim,
action from, or dispute with a third party, is subject to a prior notification
by the Purchaser, no later than eight (8) Business Days following the first
claim or action from the third party or the first notification of audit from
the tax, customs or any other governmental authorities in order to enable the
Sellers to suggest to the Purchaser and/or the Companies the appropriate action
to take to avoid, minimize or contest any liability or claim and take all
reasonable steps to reduce or suppress the Indemnifiable Damage.
b) The Purchaser shall not, and shall cause the Companies not to, settle,
compromise or discharge any third party proceedings without the prior consent
of the Sellers, which consent shall not be unreasonably withheld.
c) In case of third party proceedings, the Purchaser shall enable and/or
shall cause the Companies to enable the Sellers to participate at their expense
in such proceedings and shall, in any circumstances take any action reasonably
necessary or advisable to mitigate the Sellers damage including taking all
reasonable steps to recover funds from third parties after payment of the
indemnification pursuant to Article 7 hereof.
11.5. Deductible ("Franchise") and Ceiling
a) Save the provisions of Article 11.5 b) hereunder, the indemnification
rights granted to the Purchaser pursuant to the present Agreement shall not
exceed the total cumulative amount of 100,000,000 French Francs (hereafter the
"Ceiling"), subject to a total and final deductible of 5,000,000 French Francs.
The Purchaser will be entitled to seek payment from the Sellers relating to any
Indemnifiable Damage only to the extent that the total amount of such
Indemnifiable Damage exceeds 650,000 French Francs.
b) Notwithstanding the provisions of Article 11.5 (a) and Article 11.6, the
Purchaser will be entitled to full indemnification without restriction in time,
nor deduction by way of deductible or Ceiling, of any damage, cost or expense
(including reasonable legal fees) suffered in connection with the subject
matters of Article 10.4 and Article 10.16 (second paragraph).
c) Notwithstanding the provisions of Article 11.5 a), the Purchaser will be
entitled to full indemnification, without deduction by way of Deductible or
Ceiling, of any Indemnifiable Damage and any claim, liability, action or damage
relating to products liability, suffered in connection with PTC.
11.6. Duration of the Indemnity
a) Save the provisions of Article 11.6 b), all demands for payment under
Article 11 of this Agreement must be made by the Purchaser:
(i) as regards to matters of a tax, administrative, customs, labour or
social security nature before the expiration of a period equal to the
applicable limitations provided by law plus thirty (30) days.
(ii) as regards to any other matters, on or before 18 months after the
Transfer Date.
b) Notwithstanding the provisions of Article 11.6 a), all demands for payment
relating to any products liability incurred by PTC must be made within 25 years
after the Transfer Date.
11.7. Payment
The payment of any sum due by the Sellers to the Purchaser and/or any of the
Companies under this Agreement shall be made within thirty (30) days of the
first demand of such company supported by appropriate justifying documents.
If the Sellers pay to the Purchaser and/or any of the Companies an amount in
respect of any Indemnifiable Damage and the Purchaser or the Company
subsequently recovers from a third party (including any taxation authority) a
sum which is a further compensation for such Indemnifiable Damage, the
Purchaser and/or the Companies shall as soon as possible repay to the Sellers
the amount paid by the third party to them, provided that the aggregate amount
paid by the Purchaser and/or the Companies shall not exceed the sum recovered
from the third party, less all reasonable costs, charges and expenses incurred
by the Purchaser and/or the Companies in obtaining that payment and in
recovering that sum from the third party.
ARTICLE XII - MISCELLANEOUS PROVISIONS
12.1. Confidentiality - Public Announcement
It is agreed that except as required by law or any regulatory or stock exchange
authority or by court order or for purposes of enforcement of this Agreement,
there shall be no disclosure of any information concerning any provision of
this Agreement nor of its existence prior to the final determination of the
Aggregate Purchase Price under Article 3.3 hereof without the prior written
consent of the Parties.
Each Party commits to the greatest extent practicable to submit any press
release or public disclosure required by law to the prior review of the other
Parties.
12.2. Amendment
This Agreement shall be modified only in writing with the signature of the
Parties.
12.3. Assignability
This agreement shall not be capable of assignment by either Party without the
prior written consent of the other Party, which shall not be reasonably
withheld, save that no consent shall be required for an assignment by the
Purchaser (a) to any company which is wholly owned, directly or indirectly, by
the Purchaser who will remain jointly and severally liable, such assignment
notwithstanding or (b) to Terex Cranes or a newly formed and wholly owned
subsidiary of Terex Corporation.
12.4. Expenses
Each Party will bear its own expenses, including inter alia finders fees, legal
and filing fees, taxes, etc., incurred in connection with the negotiation and
execution of this Agreement and the consummation of the transaction
contemplated hereby.
ARTICLE XIII - GOVERNING LAW, DISPUTES AND ARBITRATION
13.1. Governing Law
This Agreement is governed by, and shall be construed in accordance with,
French law.
13.2. Disputes
All disputes which may arise in connection with the validity, interpretation,
performance and/or non-performance of this Agreement, save the provisions
contained in Articles X and XI, will be submitted to the Tribunal de Commerce
de Paris.
13.3. Arbitration of Article X and Article XI disputes
All disputes which may arise in connection with the validity, interpretation,
performance and/or non-performance of Article X and Article XI of this
Agreement will be submitted to arbitration under the conditions set forth
hereunder.
The Party deciding to commence arbitration proceedings will notify the other,
indicating the name of the arbitrator it has appointed. The other Party will,
within the following thirty (30) days, notify the former of the name of the
arbitrator it has chosen. If such Party abstains from proceeding with such
appointment for at least eight (8) days following a formal notice, the
arbitrator would be appointed by court order of the President of the Paris
Tribunal of Commerce in summary proceedings.
Within fifteen (15) days of their appointment, the arbitrators appointed by the
Parties will appoint a President of the Arbitral Tribunal. Absent such
appointment, the President of the Arbitral Tribunal will be appointed by the
President of the Paris Tribunal of Commerce in summary proceedings.
The Arbitral Tribunal will apply French law and will decide the matter within a
period of six (6) months running from the date of the terms of reference.
The terms of reference should be finalized at the first meeting of the Arbitral
Tribunal which should be held within thirty (30) days following the appointment
of the third arbitrator.
The arbitrators may request from the Parties, and the Parties may not refuse,
all the time extensions which they deem necessary or useful.
The arbitration will be held in Paris and all the proceedings shall be
conducted in the English language.
The expenses and fees of the arbitration will be shared between the Parties in
a proportion which will be determined by the Arbitral Tribunal in an award
containing a provision to this effect.
Any deposit with respect to expenses and fees which will be determined by the
Arbitral Tribunal will be apportioned and paid evenly by the Parties.
The arbitrators will not be required to observe the rules as to form and time
limits of the French Civil Procedure Code but they must put the Parties in a
position to present their arguments and comments in an adversarial manner. They
must base their decisions on law.
The arbitral award will not be subject to appeal or opposition.
The Party who refuses to accept the award will bear all costs and duties
relating to or resulting from the enforcement of the award.
ARTICLE XIV - NOTICES
All notices under this agreement shall be sent by registered mail, return
receipt requested, and shall be deemed sent on the date of receipt or on the
date of mailing if preceded by transmission of the text of such notice by
telecopy.
Such notices shall be sent, until changed by notice given as indicated above,
to the following addresses:
If to the Purchaser to: TEREX CRANES, INC.
Attention: Marvin B. Rosenberg
Telecopy: (203) 222 79 76
Telephone: (203) 222 71 70
Copy to: Simeon & Associes
5, avenue Percier
75008 Paris
Attention: Pierre de Montalembert
Telecopy: (33)(1) 40.75.04.50
Telephone: (33)(1) 40.75.08.08
If to the Sellers to: LEGRIS INDUSTRIES SA
Attention: Emmanuel Faber
Telecopy: (33) 99.25.56.88
Telephone: (33) 99.25.55.82
Copy to: Gide Loyrette Nouel
26 Cours Albert 1er
75008 Paris
Attention: Thierry Vassogne
Telecopy: (33) (1) 45 62 84.31
Telephone: (33) (1) 40.75.61.23
ARTICLE XV : EXECUTION OF ORIGINALS
It is hereby agreed between the Parties that:
- this Agreement, excluding all the Schedules attached hereto, shall be
executed in five original copies; and
- the Schedules to this Agreement shall be executed in two original
copies, it being agreed by the Sellers that only one original set of Schedules
shall be remitted to them jointly.
LEGRIS INDUSTRIES SA POTAIN SA
By: /s/ Emmanuel Faber By: /s/ Emmanuel Faber
Emmanuel Faber, Director Emmanuel Faber, duly authorized
TEREX CRANES, INC.
By: /s/ Marvin B. Rosenberg
Marvin B. Rosenberg, Vice President
TEREX CRANES, INC.
CERTIFICATE OF DESIGNATION
Pursuant to Section 151
of the General Corporation Law of the State of Delaware
Terex Cranes, Inc., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), HEREBY CERTIFIES that
pursuant to the provisions of Section 151 of the General Corporation Law of the
State of Delaware the following resolution was duly adopted by the Board of
Directors of the Corporation acting without a meeting by unanimous written
consent:
WHEREAS, the Board of Directors of the Corporation is authorized,
within the limitations and restrictions stated in the Amended and Restated
Certificate of Incorporation of the Corporation (the "Certificate of
Incorporation"), to issue one or more series of Preferred Stock and with
respect to any such series to fix by resolution or resolutions the number of
shares constituting such series and powers, designations, preferences and
relative, participating, optional or other special rights of such series and
the qualifications, limitations or restrictions thereof, including, without
limiting the generality of the foregoing, such provisions as may be desired
concerning voting, redemption, dividends, and distribution of assets upon
liquidation; and
WHEREAS, it is the desire of the Board of Directors, acting without a
meeting by unanimous written consent, pursuant to the authority conferred upon
the Board of Directors by Section 151 of the General Corporation Law of the
State of Delaware and by the Certificate of Incorporation of the Corporation,
to authorize the issuance of a series of Preferred Stock and to fix the number
of shares constituting such series and the powers, designations, preferences
and relative, participating, optional and other special rights thereof and the
qualifications, limitations and restrictions thereof as set forth in paragraphs
(1) through (12) below;
NOW, THEREFORE, BE IT RESOLVED, that there is hereby authorized the
issuance of a series of Preferred Stock on the terms and with the provisions
herein set forth:
(1) Designation. The designation of the series of Preferred Stock
authorized by this resolution shall be "Series A Redeemable Exchangeable
Preferred Stock" ("Series A Preferred Stock") consisting of one thousand
(1,000) shares. The par value of the Series A Preferred Stock shall be $.01
per share.
(2) Rank. Subject to paragraph (4)(iii) below, the Series A
Preferred Stock shall rank, whether with respect to rights on liquidation,
winding up or dissolution or otherwise, prior to the Common Stock, par value
$.01 per share (the "Common Stock"), of the Corporation and any Junior
Securities of the Corporation. (All equity securities of the Corporation to
which the Series A Preferred Stock ranks prior, including the Common Stock, are
collectively referred to herein as the "Junior Securities", all equity
securities of the Corporation with which the Series A Preferred Stock ranks on
a parity are collectively referred to herein as the "Parity Securities" and all
securities to which the Series A Preferred Stock ranks junior, whether upon
liquidation, dissolution or winding up or otherwise, are collectively referred
to herein as the "Senior Securities".) Subject to paragraph (9), the Series A
Preferred Stock shall be subject to the creation of Junior Securities, Parity
Securities and Senior Securities.
(3) Dividends. The holders of the shares of Series A Preferred
Stock shall not be entitled to receive any dividends with respect to such
shares.
(4) Liquidation Preference. (i) Subject to paragraph (4)(iii), in
the event of any voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation, the holders of shares of Series A
Preferred Stock then outstanding shall be entitled to be paid out of the assets
of the Corporation available for distribution to its stockholders an amount in
cash equal to one hundred twenty-seven thousand French Francs (FF127,000) per
share thereof outstanding, subject to adjustment pursuant to paragraph (8) (the
"Series A Liquidation Amount"), before any payment shall be made or any assets
distributed to the holders of any of the Junior Securities. If the assets of
the Corporation are not sufficient to pay in full the liquidation payments
payable to the holders of outstanding shares of Series A Preferred Stock and
any Parity Securities, then the holders of all such shares shall share ratably
in such distribution of assets in accordance with the amount which would be
payable on such distribution if the amounts to which the holders of outstanding
shares of Series A Preferred Stock and the holders of outstanding shares of
such Parity Securities are entitled were paid in full. Except as provided in
this paragraph (4)(i), holders of Series A Preferred Stock shall not be
entitled to any distribution in the event of liquidation, dissolution or
winding up of the affairs of the Corporation.
(ii) For the purposes of paragraph (4)(i) and subject to
paragraph (5)(iii), neither the voluntary sale, conveyance, lease, exchange or
transfer (for cash, shares of stock, securities or other consideration) of all
or substantially all of the property or assets of the Corporation nor the
consolidation or merger of the Corporation with or into one or more other
corporations nor the consolidation or merger of one or more corporations with
or into the Corporation shall be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up.
(iii) Notwithstanding anything to the contrary herein
contained, the holders of the Series A Preferred Stock shall not be entitled to
receive the Series A Liquidation Amount until 91 days after such time as all
principal, interest and other amounts due and owing under those certain 13.25%
Senior Secured Notes due 2002 (the "Notes") of Terex Corporation ("Terex") have
been indefeasibly paid in full; provided, however, (1) that no Parity
Securities or, except as permitted in the next sentence, Junior Securities
receive any payment upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, (2) that the Notes have not been amended to
increase the amount of indebtedness outstanding thereunder or the interest rate
thereof (other than as required by the terms of the related Indenture (defined
in paragraph (5)(ii)) as in effect on the date of issuance of the Series A
Preferred Stock) and (3) that the foregoing limitation on the payment of the
Series A Liquidation Amount shall not apply to any redemption by the
Corporation of the Series A Preferred Stock pursuant to paragraph (5) hereof.
As a result of the foregoing limitation on the payment of the Series A
Liquidation Amount and subject to the proviso to the immediately preceding
sentence, the Corporation shall have the right to pay dividends and other
distributions with respect to the Common Stock prior to the holders of the
Series A Preferred Stock receiving the Series A Liquidation Amount until such
time as all principal, interest and other amounts due under the Notes, and all
other Obligations (as defined in the Indenture referred to below) arising in
relation to the Notes, have been paid in full. The holders of the Notes are
third party beneficiaries of the provisions of this paragraph (4)(iii) and,
accordingly, until the date which is 91 days after the Notes shall no longer be
outstanding, the provisions of this paragraph (4)(iii) may not be amended or
waived without the prior written consent of the trustee under the indenture
(the "Indenture") between Terex and United States Trust Company of New York, as
trustee, pursuant to which the Notes are issued.
(5) Redemption. (i) The Corporation may redeem at its option
the Series A Preferred Stock at any time, in whole but not in part, prior to
the Mandatory Redemption Date (as defined in paragraph (5)(iii) below), at the
sole option of the Corporation, either (a) in cash in French Francs, at a
redemption price equal to one hundred twenty-seven thousand French Francs
(FF127,000) per share thereof outstanding, subject to adjustment pursuant to
paragraph (8) (the "Series A Redemption Price"), or (b) in exchange for a
number of fully paid and nonassessable shares of Common Stock calculated in
accordance with the following formula:
19.90 x Y
X = ----------
80.10 x Z
where
X = the number of fully paid and nonassessable shares of Common
Stock issuable in exchange for each share of Series A Preferred Stock,
Y = the sum of (A) all shares of Common Stock outstanding
immediately prior to such exchange, (B) all shares of Common Stock issuable
upon the exercise of any options, warrants or other rights to subscribe to or
purchase shares of Common Stock outstanding immediately prior to such exchange
and (C) all shares of Common Stock issuable upon the conversion or exchange of
any securities (other than the Series A Preferred Stock) of the Corporation
convertible into or exchangeable for shares of Common Stock outstanding
immediately prior to such exchange, and
Z = the number of shares of Series A Preferred Stock
outstanding immediately prior to such exchange;
provided, however, that, if the Corporation elects to redeem the Series A
Preferred Stock in exchange for shares of Common Stock in accordance with this
paragraph (5)(i), any holder of Series A Preferred Stock may elect to refuse
such redemption for Common Stock by so notifying the Corporation in writing
prior to the redemption date, in which case such holder's shares of Series A
Preferred Stock shall remain outstanding and shall be subject to later
redemption pursuant to paragraphs (5)(i), (ii) or (iii), as the case may be.
As used in the above formula, the ratio of 19.90 divided by
80.10 shall be referred to as the "Exchange Ratio" and shall be subject to
adjustment from time to time pursuant to paragraph (7).
(ii) Subject to the final subparagraph of this paragraph
(5)(ii), the Series A Preferred Stock shall be redeemed in full in cash in
French Francs at the Series A Redemption Price in the event that (a) the
Corporation shall acquire or own any assets other than (1) shares of capital
stock of P.P.M. S.A. and Legris Industries Inc. and (2) the capital stock of
Koehring Cranes, Inc. or the assets comprising the Koehring Cranes and Mark
Industries divisions of Terex ("Koehring") or (b) the Corporation shall create,
incur, assume, guarantee, or suffer to exist any indebtedness, liabilities
(including guarantees, direct or indirect, or other contingent liabilities), or
obligations of any kind, other than liabilities and obligations relating to (1)
the acquisition by the Corporation of the shares of capital stock of P.P.M.
S.A. and Legris Industries Inc. and the repayment of debt of P.P.M. S.A.,
Legris Industries, Inc. or PPM Cranes, Inc., (2) guarantees or other
obligations in connection with the Notes, (3) performance bonds, surety bonds,
insurance obligations or insurance bonds and other similar bonds or obligations
as may be incurred by the Corporation, Terex or their respective subsidiaries
in connection with the conduct of their business, (4) guarantees or pledges of
assets in connection with any indebtedness of Terex or any Restricted
Subsidiary (as defined in the Indenture) permitted under the Indenture, as in
effect at the date of the closing of the transactions contemplated by the Share
Purchase Agreement, dated October 19, 1994, among the Corporation, Legris
Industries S.A. and Potain S.A., as amended (the "Share Purchase Agreement"),
(5) indebtedness to Terex in connection with the acquisition pursuant to the
Share Purchase Agreement and security therefor, or (6) any extension,
refinance, renewal or replacement (collectively, "Refinance") of any of the
foregoing, provided that the principal amount of such Refinanced indebtedness
does not exceed the principal amount of the indebtedness so Refinanced.
Nothing contained herein shall prohibit or limit the ability of the Corporation
to receive dividends or distributions from any subsidiaries of the Corporation
or pay dividends or distributions to the holders of the shares of its capital
stock.
Subject to the final subparagraph of this paragraph (5)(ii), the
Corporation shall redeem the Series A Preferred Stock in full in cash in French
Francs at the Series A Redemption Price prior to the happening of any of the
following events: (A) the consolidation or merger of the Corporation with or
into, or the sale, conveyance, lease or other transfer, directly or indirectly,
by the Corporation of all or a substantial portion of its assets (in one
transaction or a series of related transactions) to, any person other than a
direct or indirect subsidiary of the Corporation, (B) a Change of Control, (C)
the adoption by the Corporation of a plan of complete or partial liquidation or
of a resolution or resolutions providing for the complete or partial
liquidation or dissolution of the Corporation, (D) a change in the principal
business of the Corporation and its subsidiaries taken as a whole as carried on
immediately after the acquisition by the Corporation of the shares of capital
stock of P.P.M. S.A. and Legris Industries, Inc. and the acquisition of
Koehring.
For purposes of this paragraph (5)(ii), a "Change of Control"
shall be deemed to occur (i) in the event that (A) Terex or any of its direct
or indirect subsidiaries shall cease to have beneficial ownership, directly or
indirectly, of voting stock of the Corporation (including through the grant of
any option to acquire voting stock of the Corporation without regard to the
period in which such option may be exercised) representing at least 30% of the
combined voting power of all voting stock of the Corporation (including, for
purposes of such calculation, all voting stock of the Corporation issuable upon
the exercise of any outstanding options, warrants or rights to purchase voting
stock of the Corporation or upon the conversion or exchange of any outstanding
securities convertible into or exchangeable for voting stock of the
Corporation), (B) any person or group (as such term is used in Section 13(d)(3)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
acquires or has beneficial ownership, directly or indirectly, of voting stock
of the Corporation (including through the acquisition or possession of any
option to acquire voting stock of the Corporation without regard to the period
in which such option may be exercised) representing a greater percentage of the
combined voting power of all voting stock of the Corporation (calculated in
accordance with the parenthetical in clause (A) above) than the percentage
thereof beneficially held, directly or indirectly, by Terex and its direct or
indirect subsidiaries, or (C) individuals voted for by Terex shall fail to
constitute a majority of the Board of Directors of the Corporation, or (ii) in
the event of (1) the sale, assignment, lease, transfer or conveyance (in one
transaction or a series of transactions) of all or substantially all of Terex's
assets to any person or group (as such term is used in Section 13(d)(3) of the
Exchange Act), (2) the liquidation or dissolution of Terex or the adoption of a
plan by the stockholders of Terex relating to the dissolution or liquidation of
Terex, (3) the acquisition by any person or group (as such term is used in
Section 13(d)(3) of the Exchange Act), except for any person or group owning in
excess of 40% of the combined voting power of all voting stock of Terex on the
date hereof, of a direct or indirect majority in interest (more than 50%) of
the combined voting power of all voting stock of Terex by way of purchase,
merger or consolidation or otherwise, or (4) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors of Terex (which includes any new directors whose
election by such Board of Directors or whose nomination for election by the
stockholders of Terex was approved by a vote of at least 66 2/3% of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of Terex.
Notwithstanding anything to the contrary contained in this
subparagraph (5)(ii), in the event that the Corporation is required to redeem
the Series A Preferred Stock pursuant to this paragraph (5)(ii) and (a) such
redemption or any payment made pursuant to such redemption would constitute or
otherwise result in a Default or Event of Default under the Indenture or (b)
immediately after such redemption or any payment made pursuant to such
redemption a Default or Event of Default would exist under the Indenture, then
the Corporation shall be obligated to redeem the Series A Preferred Stock at
the Series A Redemption Price, subject to adjustment as hereinafter provided,
(x) on the first date on which the Series A Preferred Stock may be redeemed
without causing either of the events described in clauses (a) and (b) above to
occur and (y) if the Series A Preferred Stock has not been redeemed prior to or
on the Mandatory Redemption Date, in no event later than the earlier of (1) 91
days after the Notes have been paid in full and (2) the Default Redemption Date
(as defined below). In the event that any such payment is deferred until on or
after the Mandatory Redemption Date, each holder shall have the right to elect
to exchange its shares of Series A Preferred Stock for such holder's pro rata
share of the number of fully paid and nonassessable shares of Common Stock
calculated in accordance with the formula set forth in paragraph (5)(i)
(subject to adjustment as provided herein and therein) on the terms and to the
extent permitted by the first subparagraph of paragraph (5)(iii). In addition
to any adjustment pursuant to paragraph (8), the Series A Redemption Price of
each share of Series A Preferred Stock subject to deferred redemption pursuant
to the first sentence of this subparagraph shall be adjusted so that it
increases, after giving effect to the adjustment pursuant to paragraph (8), at
a compounded rate of 15% per annum, calculated on the basis of the actual
number of days elapsed from (and excluding) the earliest date of the happening
of any of the events described in the first two subparagraphs of this paragraph
(5)(ii) through (and including) the date on which the Series A Redemption Price
of such share is actually paid in full. The holders of the Notes are third
party beneficiaries of the provisions of this subparagraph and, accordingly,
until the date which is 91 days after the Notes shall no longer be outstanding,
the provisions of this subparagraph may not be amended or waived without the
prior written consent of the trustee under the Indenture.
(iii) Subject to the second subparagraph of this paragraph
(5)(iii), unless theretofore redeemed pursuant to paragraphs (5)(i) or (ii)
above, the Series A Preferred Stock shall be redeemed in full for cash in
French Francs on August 14, 2002 (the "Mandatory Redemption Date") at the
Series A Redemption Price; provided, however, that any holder of Series A
Preferred Stock may elect (a "Stock Election") to exchange such holder's shares
of Series A Preferred Stock for, in lieu of the Series A Redemption Price, such
holder's pro rata share of the number of fully paid and nonassessable shares of
Common Stock calculated as of the Mandatory Redemption Date in accordance with
the formula set forth in paragraph (5)(i) (subject to adjustment as provided
herein and therein) by providing written notice of such Stock Election to the
Corporation not later than five business days prior to the Mandatory Redemption
Date; and provided, further, that the Corporation may, at its sole option,
disregard any Stock Election made by any holder of Series A Preferred Stock by
providing written notice to such holder no later than three business days prior
to the Mandatory Redemption Date, in which event such holder's shares of Series
A Preferred Stock shall be redeemed at the Series A Redemption Price on the
Mandatory Redemption Date.
Notwithstanding anything to the contrary contained in this
paragraph (5)(iii), in the event that the Corporation is required to redeem the
Series A Preferred Stock on the Mandatory Redemption Date pursuant to this
paragraph (5)(iii) and (1) the Notes have not been amended to extend the date
of their final maturity or to increase the amount of indebtedness outstanding
thereunder or the interest rate thereof (other than as required by the terms of
the related Indenture as in effect on the date of issuance of the Series A
Preferred Stock), (2) there is then a default in payment of the Notes and such
default has not been waived or cured and (3) the holders of the Series A
Preferred Stock do not elect to exchange their shares of Series A Preferred
Stock for Common Stock (and the Corporation has not disregarded such election),
then the Series A Redemption Price otherwise payable on the Mandatory
Redemption Date shall not be paid until the date (the "Default Redemption
Date") that is the earlier of (x) 91 days after the payment default described
in clause (2) above has been cured or waived and (y) the first date as of which
either of the conditions set forth in clauses (1) and (3) above shall no longer
be satisfied, provided that, in the case of clause (3) above, if the holder and
the Corporation so agree, such redemption shall be in exchange for Common
Stock. Otherwise, the Series A Redemption Price shall be due and payable on
the Mandatory Redemption Date in accordance with the first subparagraph of this
paragraph (5)(iii). In addition to any adjustment pursuant to paragraph (8),
the Series A Redemption Price of each share of Series A Preferred Stock that is
not redeemed on the Mandatory Redemption Date shall be adjusted so that it
increases, after giving effect to the adjustment pursuant to paragraph (8), at
a compounded rate of 15% per annum, calculated on the basis of the actual
number of days elapsed from (and excluding) the Mandatory Redemption Date
through (and including) the Default Redemption Date. The holders of the Notes
are third party beneficiaries of the provisions of this subparagraph and,
accordingly, until the date which is 91 days after the Notes shall no longer be
outstanding, the provisions of this subparagraph may not be amended or waived
without the prior written consent of the trustee under the Indenture.
(6) Procedure for Redemption. (i) In the event the Corporation
shall redeem the Series A Preferred Stock, whether on the Mandatory Redemption
Date or otherwise, written notice of such redemption shall be given by
commercial express courier, courier fees prepaid, sent not less than 30 days
nor more than 60 days prior to the redemption date, to each holder of record of
the shares of Series A Preferred Stock at such holder's address as the same
appears on the stock register of the Corporation; provided, however, that no
failure to give such notice nor any defect therein shall affect the validity of
the proceeding for the redemption of the shares of Series A Preferred Stock
except as to the holder to whom the Corporation has failed to give said notice
or except as to the holder whose notice was defective. Each such notice shall
state: (a) the redemption date; (b) in the case of an optional redemption
pursuant to paragraph (5)(i), whether such redemption is to be in cash or in
exchange for shares of Common Stock; (c) in the case of a cash redemption, the
Series A Redemption Price (as adjusted pursuant to the final subparagraph of
paragraph (5)(ii) or the second subparagraph of paragraph (5)(iii), if
applicable, and paragraph (8)); (d) in the case of a redemption for Common
Stock, the number of fully paid and nonassessable shares of Common Stock to be
issued for each share of Series A Preferred Stock of such holder; and (e) the
place or places where certificates for shares of Series A Preferred Stock are
to be surrendered for payment of such redemption price or in exchange for such
shares of Common Stock, as the case may be. In the event that the Corporation
is required to defer the redemption of any shares of Series A Preferred Stock
pursuant to the final subparagraph of paragraph (5)(ii) or the second
subparagraph of paragraph (5)(iii), the Chief Financial Officer or the
Treasurer of the Corporation shall prepare a certificate setting forth in
reasonable detail the facts upon which such deferral is based. A copy of such
certificate shall be mailed promptly to each holder of Series A Preferred Stock
at such holder's last address as shown on the stock books of the Corporation.
(ii) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in providing
for the payment of the redemption price or less than all of the outstanding
shares of Series A Preferred Stock are to be redeemed pursuant to the final
subparagraph of paragraph (5)(ii)) the shares of Series A Preferred Stock shall
no longer be deemed to be outstanding, and all rights of the holders thereof as
preferred stockholders of the Corporation (except the right to receive the
redemption price or shares of Common Stock, as the case may be) shall cease.
Upon surrender in accordance with said notice of the certificates for shares of
Series A Preferred Stock, such shares shall be redeemed by the Corporation, in
the case of a cash redemption, at the Series A Redemption Price, without
interest thereon, or, in the case of a non-cash redemption, in exchange for the
number of fully paid and nonassessable shares of Common Stock determined in
accordance with paragraph (5).
(iii) In the event the Corporation shall redeem the Series A
Preferred Stock in exchange for shares of Common Stock, as promptly as
practicable after the redemption date, the Corporation shall deliver or cause
to be delivered to the former holders of Series A Preferred Stock (excluding
any holders who have notified the Corporation in writing of their refusal to
accept shares of Common Stock pursuant to paragraph (5)(i)) a certificate or
certificates representing the number of fully paid and nonassessable shares of
Common Stock for which each such holders' shares of Series A Preferred Stock
have been exchanged, and any cash payable in respect of fractional shares as
provided in paragraph (6)(iv). In the event that the Corporation shall redeem
the Series A Preferred Stock in cash, the Corporation shall, on the redemption
date, pay or cause to be paid to each holder of Series A Preferred Stock an
amount equal to the product of (a) the Series A Redemption Price and (b) the
number of such holder's shares of Series A Preferred Stock. So long as the
initial holders of the Series A Preferred Stock or any of their affiliates
shall continue to hold all of the shares of Series A Preferred Stock
outstanding, such payment shall be made by electronic wire transfer of
immediately available funds to the bank account of such holder notified to the
Corporation in writing by such holder at least three business days prior to the
redemption date.
(iv) (a) No fractional shares or scrip representing fractional
shares of Common Stock shall be issued upon the exchange of shares of Series A
Preferred Stock. Instead of any fractional interest in a share of Common Stock
which would otherwise be deliverable upon the exchange of a share of Series A
Preferred Stock, the Corporation shall, at the sole option of the Corporation,
either (i) pay to the holder of such share (a "Fractional Shareholder") an
amount in cash (computed to the nearest cent) equal to the current market price
per share (as defined in paragraph (7)(i)(d) below) thereof on the business day
next preceding the redemption date or (ii) follow the procedures set forth in
paragraph (6)(iv)(b) below. The number of full shares of Common Stock issuable
upon exchange of each holder's shares of Series A Preferred Stock shall be
computed on the basis of the aggregate number of such holder's shares of Series
A Preferred Stock.
(b) The Corporation may, at its sole option, in lieu of
paying cash to Fractional Shareholders as provided in paragraph (6)(iv)(a),
issue, in full payment of the Corporation's obligation with respect to such
fractional interests, shares of Common Stock equal to the aggregate of such
fractional interests of such Fractional Shareholder and other Fractional
Shareholders (aggregated over a reasonable period of time, but not in any event
more than 20 business days, and rounded upwards to the nearest whole share) to
an agent appointed by the Corporation for such Fractional Shareholders, for
sale promptly by such agent on behalf of the Fractional Shareholders. The
agent shall remit promptly to such Fractional Shareholders their proportionate
interest in the net proceeds (following the deduction of applicable transaction
costs and computed to the nearest cent) from such sale.
(7) Adjustment of Exchange Ratio. (i) The Exchange Ratio shall be
subject to adjustment as follows:
(a) If the Corporation shall issue by reclassification of
its shares of Common Stock other securities of the Corporation, then the
Exchange Ratio in effect immediately prior thereto shall be adjusted so that
the holder of any shares of Series A Preferred Stock thereafter exchanged shall
be entitled to receive the number and kind of shares of other securities that
the holder would have owned or have been entitled to receive after such
issuance had such shares of Series A Preferred Stock been exchanged immediately
prior thereto or any record date with respect thereto. An adjustment made
pursuant to this paragraph (7)(i)(a) shall become effective immediately after
the record date for such issuance, or, if there is no such record date, then on
the date of such issuance. Such adjustment shall be made successively.
(b) In case the Corporation shall distribute to all
holders of its outstanding Common Stock any shares of capital stock of the
Corporation other than Common Stock or evidences of its indebtedness or assets
(including shares of capital stock of a subsidiary of the Corporation, but
excluding ordinary cash dividends and dividends or distributions referred to in
paragraph (7)(i)(a) above) or rights or warrants to subscribe for or purchase
any of its securities or shall repurchase shares of its outstanding Common
Stock for per share consideration that is greater than the then current market
price per share of Common Stock (as defined in paragraph (7)(i)(c) below)
immediately prior to such repurchase (in which event the aggregate amount so
paid in excess of the current market price of all the Common Stock divided by
the number of outstanding shares of Common Stock prior to such repurchase shall
be considered a distribution of assets to all holders of Common Stock pursuant
to this paragraph (7)(i)(b)) (any of the foregoing being hereinafter in this
paragraph (7)(i)(b) referred to as the "Securities or Assets"), then in each
such case, unless the Corporation elects to reserve shares or other units of
such Securities or Assets for distribution to the holders of the Series A
Preferred Stock upon the exchange of the shares of Series A Preferred Stock so
that any such holder exchanging shares of Series A Preferred Stock will receive
upon such exchange, in addition to the shares of Common Stock to which such
holder is entitled, the amount and kind of such Securities or Assets which such
holder would have received if such exchange had occurred immediately prior to
the record date for the distribution of the Securities or Assets, the Exchange
Ratio shall be adjusted so that the same shall equal the ratio determined by
multiplying the Exchange Ratio in effect immediately prior to the date of such
distribution by a fraction of which the numerator shall be the current market
price per share of the Common Stock on such record date and of which the
denominator shall be the current market price per share (as defined in
paragraph (7)(i)(c) below) of the Common Stock on the record date mentioned
below less the then fair market value (as determined by the Board of Directors,
whose determination shall, if made in good faith, be conclusive) of the portion
of the capital stock or assets or evidences of indebtedness so distributed or
of such rights or warrants applicable to one share of Common Stock. Such
adjustment shall become effective immediately after the record date for the
determination of stockholders entitled to receive such distribution, except as
provided in paragraph (7)(i)(g) below.
(c) For the purposes of any computation under paragraphs
(7)(i)(b) and for the purposes of paragraph (6)(iv)(a), the current market
price per share of Common Stock at any date shall be deemed to be the average
of the daily closing prices for the 20 consecutive trading days commencing on
the 30th trading day prior to the date in question. The closing price for each
day shall be (x) if the Common Stock is listed or admitted to trading on a
national securities exchange, the closing price on the New York Stock Exchange
Consolidated Tape (or any successor composite tape reporting transactions on
national securities exchanges) or, if such a composite tape shall not be in use
or shall not report transactions in the Common Stock, the last reported sales
price regular way on the principal national securities exchange on which the
Common Stock is listed or admitted to trading (which shall be the national
securities exchange on which the greatest number of shares of Common Stock has
been traded during such 20 consecutive trading days), or, if there is no
transaction on any such day in any such situation, the mean of the bid and
asked prices on such day or, (y) if the Common Stock is not listed or admitted
to trading on any such exchange, the closing price, if reported, or, if the
closing price is not reported, the average of the closing bid and asked prices
as reported by the National Association of Securities Dealers Automated
Quotation System (NASDAQ) or a similar source selected from time to time by the
Corporation for the purpose. In the event such closing prices are unavailable,
the current market price shall be deemed to be the fair market value as
determined in good faith by the Board of Directors, on the basis of such
relevant factors as it in good faith considers, in the reasonable judgment of
the Board of Directors, appropriate.
(d) No adjustment in the Exchange Ratio shall be required
unless such adjustment would require an increase or decrease of at least 1% of
such ratio; provided, however, that any adjustments which by reason of this
paragraph (7)(i)(d) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
paragraph (7)(i) shall be made to the nearest one-hundredth of a cent or to the
nearest one-hundredth of a share, as the case may be.
(e) If the Corporation is a party to a consolidation or
merger transaction with a direct or indirect subsidiary of the Corporation, the
shares of Series A Preferred Stock will thereafter no longer be exchangeable
into shares of Common Stock of the Corporation, but instead will be
exchangeable into the kind and amount of securities or assets which the holder
of such shares of Series A Preferred Stock would have owned immediately after
the consolidation or merger if such shares had been exchanged immediately
before the effective date of such transaction. If this paragraph (7)(i)(e)
applies, then no adjustment in respect of the same transaction shall be made
pursuant to the other provisions of this paragraph (7)(i).
(f) For the purposes of this paragraph (7)(i) and
paragraph (7)(iv), the term "shares of Common Stock" shall mean (x) the class
of stock designated as the Common Stock of the Corporation at the date hereof
or (y) any other class of stock resulting from successive changes or
reclassifications of such shares consisting solely of changes in par value, or
from no par value to par value. In the event that at any time, as a result of
an adjustment made pursuant to paragraphs (7)(i)(a), (b) or (e) above, the
holders of Series A Preferred Stock shall become entitled to receive any
securities other than shares of Common Stock, thereafter the number of such
other securities so issuable upon exchange of the shares of Series A Preferred
Stock shall be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to the
shares of Series A Preferred Stock contained in this paragraph (7)(i).
(g) Notwithstanding the foregoing, in any case in which
this paragraph (7)(i) provides that an adjustment shall become effective
immediately after a record date for an event, the Corporation may defer until
the occurrence of such event (A) issuing to the holder of any shares of Series
A Preferred Stock exchanged after such record date and before the occurrence of
such event the additional shares of Common Stock issuable upon such exchange
after giving effect to such adjustment and (B) paying to such holder any amount
in cash in lieu of any fraction pursuant to paragraph (6)(iv).
(ii) Whenever the Exchange Ratio is adjusted as herein
provided, the Chief Financial Officer or Treasurer of the Corporation shall
compute the adjusted Exchange Ratio in accordance with the foregoing provisions
and shall prepare a certificate setting forth such adjusted Exchange Ratio and
the date on which such adjustment becomes effective and showing in reasonable
detail the facts upon which such adjustment is based. A copy of such
certificate shall be mailed promptly to the holder of each share of Series A
Preferred Stock at such holder's last address as shown on the stock books of
the Corporation.
(iii) The Corporation shall pay any and all documentary, stamp
or similar issue or transfer taxes payable in respect of the issue or delivery
of shares of Common Stock on the exchange of shares of Series A Preferred
Stock; provided, however, that the Corporation shall not be required to pay any
tax which may be payable in respect of any registration of
transfer involved in the issue or delivery of shares of Common Stock in a name
other than that of the registered holder of Series A Preferred Stock exchanged
or to be exchanged, and no such issue or delivery shall be made unless and
until the person requesting such issue has paid to the Corporation the amount
of any such tax or has established, to the satisfaction of the Corporation,
that such tax has been paid.
(iv) The Corporation shall at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its authorized
but unissued Common Stock or its issued Common Stock held in its treasury, or
both, for the purpose of effecting the exchange of the Series A Preferred
Stock, the full number of shares of Common Stock then deliverable upon the
exchange of all outstanding shares of the Series A Preferred Stock.
(8) Adjustment of Series A Liquidation Amount and Series A
Redemption Price. (i) Effective from issuance, the Series A Liquidation
Amount and the Series A Redemption Price, to the extent paid in cash, shall
each be equal to the quotient "V" as follows:
(FF119,000,000 x 1.2) + FF8,000,000
V = -----------------------------------
1,000
(ii) Effective as of August 1, 1998, the Series A Liquidation
Amount and the Series A Redemption Price shall each be equal to the quotient
"V" as follows:
((X1 + X2) - 1954
(----------------- x FF119,000,000 x 1.2) + FF8,000,000
( 1010
V = -----------------------------------------------------------
1,000
with 0 less than or equal to V less than or equal to FF119,000,000 adjusted as
provided in clause (iii) below,
where
X1 = number of new Cranes sold in the European market in
1996 as reflected in the following statistical sources: CIMA/CEM/FEM.
X2 = number of new Cranes sold in the European market in
1997 as reflected in the following statistical sources: CIMA/CEM/FEM.
For purposes of the above formula, the term "Cranes" shall mean (i) all terrain
cranes up to 299 metric tons in weight, (ii) rough terrain cranes weighing from
25 to 110 metric tons and (iii) truck cranes weighing up to 1,000 metric tons,
and shall exclude (x) lattice boom trucks, (y) lattice boom self prop and (z)
industrial cranes.
(iii) As used in each of the above formulas, the number
119,000,000 shall be adjusted in accordance with (a) the results of the audit
to be performed pursuant to Articles III and IV of the Share Purchase Agreement
and (b) Schedule 14(a) of the Share Purchase Agreement. Such adjustment shall
not be made until such number is finally determined pursuant to the Share
Purchase Agreement.
(9) Voting Rights. (i) The holders of record of shares of
Series A Preferred Stock shall not be entitled to any voting rights except as
set forth in paragraph (9)(ii) or as otherwise provided by law.
(ii) So long as any shares of Series A Preferred Stock are
outstanding, the Corporation shall not, without first obtaining the affirmative
vote or written consent of the holders of not less than a majority of the then
outstanding shares of Series A Preferred Stock, given in person or by proxy,
either in writing or by resolution adopted at an annual or special meeting
called for the purpose, at which the holders of Series A Preferred Stock shall
vote separately as a class: (a) amend or repeal any provision of, or add any
provision to, the Certificate of Incorporation or By-laws of the Corporation if
such action would alter adversely or change the preferences, rights, privileges
or powers of, or the restrictions provided for the benefit of, any Series A
Preferred Stock, or increase or decrease the number of shares of Series A
Preferred Stock authorized; (b) authorize or issue any class of Senior
Securities; (c) reclassify any class or series of Junior Securities into Senior
Securities or reclassify any class or series of Parity Securities into Senior
Securities; (d) authorize, enter into or consummate any transaction that would
constitute a deemed dividend to holders of the Series A Preferred Stock under
United States federal tax laws; or (5) consolidate with or merge with or into
another corporation, other than in a transaction in which the Corporation is
the surviving corporation.
(10) Limitations. Except as may otherwise be required by law,
the shares of Series A Preferred Stock shall not have any powers, preferences
or relative, participating, optional or other special rights other than those
specifically set forth in this resolution (as such resolution may be amended
from time to time) or otherwise in the Certificate of Incorporation of the
Corporation. A copy of any document referenced herein shall be furnished by
the Corporation, on request and without cost, to any stockholder of the
Corporation.
(11) Transfer and Legend. No transfer of shares of the Series
A Preferred Stock shall be effective until such transfer is registered on the
books of the Corporation. Any shares so transferred must bear the following
legend:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD
EXCEPT IN COMPLIANCE THEREWITH."
The Corporation shall remove the foregoing legend upon any sale of the shares
of Series A Preferred Stock pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "Securities Act") or upon
such shares being sold or becoming freely saleable pursuant to Rule 144 under
the Securities Act. The Corporation shall refuse to register any attempted
transfer of shares of Series A Preferred Stock not in compliance with this
paragraph (12).
IN WITNESS WHEREOF, Terex Cranes, Inc. has caused this
certificate to be duly executed as of this 8th day of May, 1995.
TEREX CRANES, INC.
By: /s/ Marvin B. Rosenberg
Marvin B. Rosenberg
Vice President
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT, dated as of May 9, 1995, by and among
Terex Corporation, a corporation organized under the laws of the State of
Delaware ("Terex"), Terex Cranes, Inc., a corporation organized under the laws
of the State of Delaware and a wholly owned subsidiary of Terex (the
"Company"), Legris Industries S.A., a corporation organized under the laws of
France ("Legris"), and Potain S.A., a corporation organized under the laws of
France and a subsidiary of Legris ("Potain").
WHEREAS, pursuant to the Share Purchase Agreement, dated as of
October 19, 1994, by and among the Company, Legris and Potain S.A., as amended
(the "Share Purchase Agreement"), Legris and Potain have agreed to subscribe
for 640 shares and 360 shares, respectively, of Series A Redeemable
Exchangeable Preferred Stock (the "Series A Preferred Stock") of the Company;
WHEREAS, the terms of the Series A Preferred Stock provide that,
subject to the conditions thereof, the Company may elect to redeem the Series A
Preferred Stock in exchange for the issuance of a specified number of fully
paid and nonassessable shares of Common Stock, par value $.01 per share (the
"Common Stock"), of the Company; and
WHEREAS, the parties hereto wish to enter into certain agreements
with respect to these investments;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized terms shall have
the following respective meanings:
Acceptable Drag-Along Consideration: Cash, bona fide
non-convertible indebtedness and/or publicly traded securities with an
established trading market which are freely publicly resalable within nine
months of the closing date of the transaction in respect of which such
securities are issued.
Affiliate: With respect to any Person, any other Person
controlling, controlled by or under common control with such Person. As used
herein, "control" shall mean the beneficial ownership of at least a majority of
the equity
interests of a Person entitling the owner of such interests to direct the
policies and operations of such Person.
Change of Control: Any of the following events: (i) Terex or
any of its direct or indirect subsidiaries shall cease to have beneficial
ownership, directly or indirectly, of voting stock of the Company (including
through the grant of any option to acquire voting stock of the Company without
regard to the period in which such option may be exercised) representing at
least 30% of the combined voting power of all voting stock of the Company
(including, for purposes of such calculation, all voting stock of the Company
issuable upon the exercise of any outstanding options, warrants or rights to
purchase voting stock of the Company or upon the conversion or exchange of any
outstanding securities convertible into or exchangeable for voting stock of the
Company), (ii) any person or group (as such term is used in Section 13(d)(3) of
the Exchange Act) acquires or has beneficial ownership, directly or indirectly,
of voting stock of the Company (including through the acquisition or possession
of any option to acquire voting stock of the Company without regard to the
period in which such option may be exercised) representing a greater percentage
of the combined voting power of all voting stock of the Company (calculated in
accordance with the parenthetical in clause (i) above) than the percentage
thereof beneficially held, directly or indirectly, by Terex and its direct or
indirect subsidiaries, (iii) individuals voted for by Terex shall fail to
constitute a majority of the Board of Directors of the Company, (iv) the sale,
assignment, lease, transfer or conveyance (in one transaction or a series of
transactions) of all or substantially all of Terex's assets to any person or
group (as such term is used in Section 13(d)(3) of the Exchange Act), (v) the
liquidation or dissolution of Terex or the adoption of a plan by the
stockholders of Terex relating to the dissolution or liquidation of Terex, (vi)
the acquisition by any person or group (as such term is used in Section
13(d)(3) of the Exchange Act), except for any person or group owning in excess
of 40% of the combined voting power of all voting stock of Terex on the date
hereof, of a direct or indirect majority in interest (more than 50%) of the
combined voting power of all voting stock of Terex by way of purchase, merger
or consolidation or otherwise, or (vii) during any period of two consecutive
years, individuals who at the beginning of such period constituted the Board of
Directors of Terex (which includes any new directors whose election by such
Board of Directors or whose nomination for election by the stockholders of
Terex was approved by a vote of at least 66 2/3% of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of Terex.
Demand Date: The earlier of (i) 270 days from the effective
date of the registration statement relating to an incidental registration which
is subject to pro rata adjustment pursuant to Section 2(c) (the "Incidental
Effective Date") and (ii) the date upon which any "lock-up" restrictions
applicable to the Company and its Affiliates in connection with such
registration terminate; provided that the Company will use its best efforts to
cause any such "lock-up" restrictions to terminate no later than six months
after the Incidental Effective Date.
Exchange Act: The Securities Exchange Act of 1934, as amended,
or any similar federal statute then in effect, and a reference to a particular
section thereof shall be deemed to include a reference to the comparable
section, if any, of any such similar federal statute.
Holder: Legris and Potain to the extent they hold shares of
Common Stock received in exchange for shares of Series A Preferred Stock, and
any successor holder of Common Stock who agrees in writing to be bound by the
provisions of this Agreement.
Person: Any individual, partnership, joint venture,
corporation, association, trust, unincorporated organization or government or
any department or agency thereof.
Public Offering: The offer for sale of Common Stock pursuant to
an effective registration statement filed under the Securities Act.
Registrable Securities: Any Common Stock issued in redemption
of the Company's Redeemable Preferred Stock pursuant to the terms thereof. As
to any particular Registrable Securities, once issued such Securities shall
cease to be Registrable Securities when (i) a registration statement with
respect to the sale by the Holder 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, (ii) they shall be
distributable in a single calendar quarter to the public pursuant to Rule 144
(or any successor provision) under the Securities Act without registration
pursuant to Section 5 of the Securities Act, (iii) they shall have been
otherwise transferred and subsequent disposition of them shall not require
registration or qualification of them under the Securities Act or any state
securities or blue sky law then in force, or (iv) they shall have ceased to be
outstanding.
Registration Expenses: Any and all expenses incident to
performance of or compliance with the registration provisions of this
Agreement, including, without limitation, (i) all SEC and stock exchange or
National Association of Securities Dealers, Inc. ("NASD") registration and
filing fees (including, if applicable, the fees and expenses of any "qualified
independent underwriter" as such term is defined in Schedule E to the By-laws
of the NASD, and of its counsel), (ii) all fees and expenses of complying with
securities or blue sky laws (including fees and disbursements of counsel for
the underwriters in connection with blue sky qualifications of the Registrable
Securities), (iii) all printing, messenger and delivery expenses, (iv) all fees
and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange pursuant to clause (viii) of Section 2(d)
hereof and all rating agency fees, (v) the fees and disbursements of counsel
for the Company and of its independent public accountants, including the
expenses of any special audits and/or "cold comfort" letters required by or
incident to such performance and compliance, and (vi) any fees and
disbursements of underwriters customarily paid by the issuers or sellers of
securities, provided that, in the event a registration is being undertaken
pursuant to Section 2 hereof, the Holders retain the same managing underwriters
as the Company, including liability insurance if the Company so desires or if
the underwriters so require, and the reasonable fees and expenses of any
special experts retained in connection with the requested registration, but
excluding underwriting discounts and commissions and transfer taxes, if any.
Securities Act: The Securities Act of 1933, as amended, or any
similar federal statute then in effect, and a reference to a particular section
thereof shall be deemed to include a reference to the comparable section, if
any, of any such similar federal statute.
SEC: The Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act or the Exchange
Act.
Taxes: All federal, state, local and foreign taxes, duties,
levies, charges and assessments of any nature, including all interest,
penalties and additions imposed with respect to such amounts.
Transfer: Any transfer, sale, assignment, exchange, mortgage,
pledge, hypothecation or other disposition of any Common Stock (or the common
stock of any Affiliate of Terex which directly or indirectly holds any Common
Stock) or any interest therein.
2. Incidental Registrations.
(a) Right to Include Registrable Securities. If the Company at
any time after the date hereof proposes to register its Common Stock under the
Securities Act (other than a registration on Form S-4 or S-8, or any successor
or other forms promulgated for similar purposes), whether or not for sale for
its own account, in a manner which would permit registration of Registrable
Securities for sale to the public under the Securities Act, it will, at each
such time, give written notice to all Holders of Registrable Securities of its
intention to do so and of such Holders' rights under this Section 2. Upon the
written request of any such Holder made within 15 business days after the
receipt of any such notice (which request shall specify the Registrable
Securities intended to be disposed of by such Holder), the Company 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 by
the Holders thereof, to the extent requisite to permit the disposition of the
Registrable Securities so to be registered; provided that (i) if, at any time
after giving written notice of its intention to register any securities and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
proceed with the proposed registration of the securities to be sold, the
Company may, at its election, give written notice of such determination to each
Holder of Registrable Securities and, thereupon, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith), and (ii) if such registration involves an underwritten
offering, all Holders of Registrable Securities requesting to be included in
the Company's registration must sell their Registrable Securities to the
underwriters selected by the Company on the same terms and conditions as apply
to the Company, with such differences, including any with respect to
indemnification and liability insurance, as may be customary or appropriate in
combined primary and secondary offerings. If a registration requested pursuant
to this Section 2 involves an underwritten public offering, any Holder of
Registrable Securities requesting to be included in such registration may
elect, in writing prior to the effective date of the registration statement
filed in connection with such registration, not to register such securities in
connection with such registration.
(b) Expenses. The Company shall pay all Registration Expenses
in connection with each registration of Registrable Securities requested
pursuant to this Section 2.
(c) Allocation in Incidental Registrations. If a registration
pursuant to this Section 2 involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering, so as to be likely to have an adverse
effect on the price, timing or distribution of the securities offered in such
offering as contemplated by the Company (other than the Registrable
Securities), then the total number of securities which the managing underwriter
has advised the Company can be sold in such offering (including the securities
to be sold by the Company) without having such adverse effect shall be
allocated pro rata among the securities the Company proposes to register for
others and the Registrable Securities which the Holders have requested to be
included in such registration (provided that any shares thereby allocated to
any Holder that exceed such Holder's request will be reallocated among the
remaining requesting Holders and the other selling security holders in like
manner), but shall not reduce the amount to be offered by the Company. In the
event the Company is faced with a conflict between its obligations under this
Section 2 and preexisting obligations to persons who are not Holders hereunder
with respect to the priority of securities to be included in a registration
pursuant to this Section 2, the Company shall at such time endeavor to arrange
with the Holder or Holders and such other persons to allocate fairly the shares
of such securities to be sold by the Company, such Holder or Holders and such
other persons pursuant to such registration.
3. Registration on Request.
(a) Request by the Demand Party. In the event that the Holders
are unable to include all of their shares of Registrable Securities in any
incidental registration as a result of a pro rata allocation pursuant to
Section 2(c), then at any time after the Demand Date, upon the written request
of any Holder (a "Demand Party") requesting that the Company effect the
registration under the Securities Act of all of such Holder's Registrable
Securities and specifying the amount and intended method of disposition
thereof, the Company shall promptly give written notice of such requested
registration to all other Holders of Registrable Securities, and thereupon
shall, as expeditiously as possible, use its best efforts to effect the
registration under the Securities Act of:
(i) the Registrable Securities which the Company has been
so requested to register by the Demand Party; and
(ii) all other Registrable Securities which the Company has
been requested to register by any other Holder thereof by written request given
to the Company within 15 business days after the giving of such written notice
by the Company (which request shall specify the amount and intended method of
disposition of such Registrable Securities),
all to the extent necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Registrable Securities so to be
registered. Subject to Section 3(d), the Holders as a group shall have only
one demand registration right pursuant to this Section 3 with respect to each
of the first two incidental registrations which are subject to pro rata
allocation pursuant to Section 2(c). The Holders requesting a registration
pursuant to this Section 3 may, at any time prior to the effective date of the
registration statement relating to such registration, revoke such request by
providing a written notice to the Company revoking such request. If the
Holders revoke their request prior to the effective date of the registration
statement, then the Holders shall either (x) pay all of the costs and expenses
incurred by the Company in connection with the preparation and filing of such
registration statement, including, without limitation, legal and accounting
fees, SEC registration fees, printing fees, and NASD fees or (y) the Holders
shall have no further demand registration rights hereunder with respect to the
incidental registration which gave rise to such demand registration rights.
(b) Registration Statement Form. If any registration requested
pursuant to this Section 3 which is proposed by the Company to be effected by
the filing of a registration statement on Form S-3 (or any successor or similar
short-form registration statement) shall be in connection with an underwritten
Public Offering, and if the managing underwriter shall advise the Company in
writing that, in its opinion, the use of another form of registration statement
is of material importance to the success of such proposed offering, then such
registration shall be effected on such other form, provided that the Holders
undertake to pay the incremental additional costs of preparing such other form.
(c) Expenses. Except as provided in subsection (b) above, the
Company shall pay all Registration Expenses in connection with any registration
of Registrable Securities pursuant to this Section 3.
(d) Effective Registration Statement. A registration requested
pursuant to this Section 3 will not be deemed to have been effected unless the
registration statement relating thereto has become effective under the
Securities Act and all the Registrable Securities included in such registration
pursuant to this Section 3 have been sold thereunder; provided, however, that
the Company shall not be required to keep any such registration statement in
effect for a period longer than that set forth in Section 4(ii).
(e) Selection of Underwriters. If a requested registration
pursuant to this Section 3 involves an underwritten offering, the Holders of a
majority of the shares of Registrable Securities which the Company has been
requested to register shall have the right to select the investment banker or
bankers and managers to administer the offering, subject to the reasonable
approval of the Company.
(f) Priority in Requested Registrations. If a requested
registration pursuant to this Section 3 involves an underwritten offering and
the managing underwriter advises the Company in writing that, in its opinion,
the number of securities requested to be included in such registration
(including securities of the Company which are not Registrable Securities)
exceeds the number which can be sold in such offering, the Company will give
first priority in such registration to the Registrable Securities requested to
be included in such registration. In the event that the number of Registrable
Securities requested to be included in such registration exceeds the number
which, in the opinion of such managing underwriter, can be sold, the number of
such Registrable Securities to be included in such registration shall be
allocated pro rata among all requesting Holders on the basis of the relative
number of shares of Registrable Securities then held by each such Holder
(provided that any shares thereby allocated to any such Holder that exceed such
Holder's request shall be reallocated among the remaining requesting Holders in
like manner). In the event that the number of Registrable Securities requested
to be included in such registration is less than the number which, in the
opinion of the managing underwriter, can be sold, the Company may include in
such registration the securities the Company proposes to sell up to the number
of securities that, in the opinion of the underwriters, can be sold. The
Holders as a group shall not be entitled to any further demand registration
right in respect of any Registrable Securities not included in such
registration pursuant to the allocation provided for herein; provided, however,
that the Holders shall continue to have demand registration rights pursuant to
this Section 3 with respect to one subsequent incidental registration which is
subject to pro rata allocation pursuant to Section 2(c).
4. Registration Procedures. If and whenever the Company is
required to use its best efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in Section 2 or 3
hereof, the Company will, as expeditiously as possible:
(i) prepare and file as soon as practicable with the SEC a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective;
provided, however, that the Company may discontinue any registration of its
securities which is being effected pursuant to Section 2 at any time prior to
the effective date of the registration statement relating thereto;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for a period of not less than 180 days or such shorter period which
will terminate when all Registrable Securities covered by such registration
statement have been sold (but not before the expiration of the 90-day period
referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if
applicable) and to comply with the provisions of the Securities Act, the
Exchange Act and the rules and regulations of the SEC thereunder with respect
to the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition by
the seller or sellers thereof set forth in such registration statement;
provided, however, that before filing a registration statement or prospectus,
or any amendments or supplements thereto, the Company will furnish to counsel
selected pursuant to Section 7 hereof by the Holders of the Registrable
Securities covered by such registration statement to represent such Holders,
copies of all documents proposed to be filed, which documents will be subject
to the review of such counsel;
(iii) furnish to each seller of such Registrable Securities
such number of copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits filed therewith and any
documents incorporated by reference), such number of copies of the prospectus
included in such registration statement (including each preliminary prospectus
and summary prospectus), in conformity with the requirements of the Securities
Act, as such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities by such seller;
(iv) use its best efforts to register or qualify such
Registrable Securities covered by such registration statement in such
jurisdictions as each seller shall reasonably request, and do any and all other
acts and things which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller, except that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction where, but for the requirements of this clause
(iv), it would not be obligated to be so qualified, to subject itself to
taxation in any such jurisdiction, or to consent to general service of process
in any such jurisdiction;
(v) use its best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(vi) notify each seller of any such Registrable Securities
covered by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act within the
appropriate period mentioned in clause (ii) of this Section 4, of the Company's
becoming aware that the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the request of any such seller, prepare and furnish to such
seller a reasonable number of copies of an amended or supplemental prospectus
as may be necessary so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing;
(vii) otherwise 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 twelve months, beginning with the first month after the
effective date of the registration statement (as the term "effective date" is
defined in Rule 158(c) under the Securities Act), which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder or any successor provisions thereto;
(viii) use its best efforts to list or cause to be quoted
such Registrable Securities on any securities exchange or quotation system on
which the Common Stock is then listed or is contemplated to be listed or quoted
in connection with such offering;
(ix) enter into such customary agreements (including an
underwriting agreement in customary form) and take such other actions as
sellers of a majority of shares of such Registrable Securities or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities; provided, however, that in the
event a registration is being undertaken pursuant to Section 2 hereof, if the
Company retains a managing underwriter or underwriters in connection with the
disposition of the Common Stock which it proposes to register, the Company
shall not be required to enter into any such agreements with separate managing
underwriters on behalf of the Holders of Registrable Securities;
(x) to the extent that the proposed offering of Common
Stock is an underwritten offering or to the extent that any seller of
Registrable Securities covered by such registration statement concludes, on
written advice of counsel, that it may be subject to liability under the
Securities Act as an "underwriter" (as such term is defined in Section 2(11) of
the Securities Act) in connection with the offering and sale of Registrable
Securities, obtain a "cold comfort" letter or letters from the Company's
independent public accountants in customary form and covering matters of the
type customarily covered by "cold comfort" letters as the seller or sellers of
a majority of shares of such Registrable Securities shall reasonably request;
provided, however, that, if the Company retains a managing underwriter or
underwriters in connection with the disposition of the Common Stock which it
proposes to register, the form of such "cold comfort" letter or letters shall
be the form of "cold comfort" letter or letters delivered to such managing
underwriter or underwriters;
(xi) to the extent that the proposed offering of Common
Stock is an underwritten offering or to the extent that any seller of
Registrable Securities covered by such registration statement concludes, on
written advice of counsel, that it may be subject to liability under the
Securities Act as an underwriter (as such term is defined in Section 2(11) of
the Securities Act) in connection with the offering and sale of Registrable
Securities, make available for inspection by any seller of such Registrable
Securities, by any underwriter participating in any disposition to be effected
pursuant to such registration statement and by any attorney, accountant or
other agent retained by any such seller or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and properties of
the Company, and cause all of the Company's officers, directors and employees
to supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement;
(xii) immediately notify the Holders of Registrable
Securities included in such registration statement and the managing underwriter
or agent and confirm the notice in writing (i) when the registration statement,
or any post-effective amendment to the registration statement, shall have
become effective, or any supplement to the prospectus or any amendment
prospectus shall have been filed, (ii) of the receipt of any comments from the
SEC, (iii) of any request of the SEC to amend the registration statement or
amend or supplement the prospectus or for additional information, and (iv) of
the issuance by the SEC of any stop order suspending the effectiveness of the
registration statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
registration statement for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for any of such purposes;
(xiii) make every reasonable effort to prevent the issuance
of any stop order suspending the effectiveness of the registration statement or
of any order preventing or suspending the use of any preliminary prospectus
and, if any such order is issued, to obtain the withdrawal of any such order at
the earliest possible moment;
(xiv) if requested by the managing underwriter or agent or
any Holder of Registrable Securities covered by the registration statement,
promptly incorporate in a prospectus supplement or post-effective amendment
such information as the managing underwriter or agent or such Holder reasonably
requests to be included therein in order to comply with the United States
federal securities laws, including, without limitation, with respect to the
number of Registrable Securities being sold by such Holder to such underwriter
or agent, the purchase price being paid therefor by such underwriter or agent
and with respect to any other terms of the underwritten offering of the
Registrable Securities to be sold in such offering, and make all required
filings of such prospectus supplement or post-effective amendment as soon as
practicable after being notified of the matters incorporated in such prospectus
supplement or post-effective amendment;
(xv) cooperate with the Holders of Registrable Securities
covered by the registration statement and the managing underwriter or agent, if
any, to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing securities to be sold under the
registration statement, and enable such securities to be in such denominations
and registered in such names as the managing underwriter or agent, if any, or
such Holders may request;
(xvi) obtain for delivery to the Holders of Registrable
Securities being registered and to the underwriter or agent an opinion or
opinions from counsel for the Company in customary form and in form, substance
and scope reasonably satisfactory to such Holders, underwriters or agents and
their counsel; provided, however, that, if the Company retains a managing
underwriter or underwriters in connection with the disposition of the Common
Stock which it proposes to register, the form of such opinion or opinions shall
be the form of opinion or opinions delivered to such managing underwriter or
underwriters; and
(xvii) cooperate with each seller of Registrable Securities
and each underwriter or agent participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD.
The Company may require each seller of Registrable Securities as
to which any registration is being effected to furnish the Company with such
information regarding such seller and pertinent to the disclosure requirements
relating to the registration and the distribution of such securities as the
Company may from time to time reasonably request in writing.
Each Holder of Registrable Securities agrees that, upon receipt
of any notice from the Company of the happening of any event of the kind
described in clause (vi) of this Section 4, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by clause
(vi) of this Section 4, and, if so directed by the Company, such Holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the period
mentioned in clause (ii) of this Section 4 shall be extended by the number of
days during the period from and including the date of the giving of such notice
pursuant to clause (vi) of this Section 4 and including the date when each
seller of Registrable Securities covered by such registration statement shall
have received the copies of the supplemented or amended prospectus contemplated
by clause (vi) of this Section 4.
5. Indemnification.
(a) Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act pursuant
to Section 2 or 3 hereof, the Company will, and it hereby does, indemnify and
hold harmless, to the extent permitted by law, the seller of any Registrable
Securities covered by such registration statement, each affiliate of such
seller and their respective directors and officers or general and limited
partners (including any director, officer, affiliate, employee, agent and
controlling Person of any of the foregoing), each Person who participates as an
underwriter in the offering or sale of such securities and each other Person,
if any, who controls such seller or any such underwriter within the meaning of
the Securities Act (collectively, the "Indemnified Parties"), against any and
all losses, claims, damages or liabilities, joint or several, and expenses
(including reasonable attorney's fees and reasonable expenses of investigation)
to which such Indemnified Party may become subject under the Securities Act,
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof, whether or not such Indemnified
Party is a party thereto) arise out of or are based upon (a) any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act, any preliminary, final or summary prospectus contained therein,
or any amendment or supplement thereto or a document incorporated by reference
into any of the foregoing, or (b) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in light of the circumstances
under which they were made) not misleading, and the Company will reimburse such
Indemnified Party for any legal or any other expenses reasonably incurred by it
in connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided, however, that the Company shall not be liable
to any Indemnified Party in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement
or amendment or supplement thereto or in any such preliminary, final or summary
prospectus in reliance upon and in conformity with written information that is
(1) furnished to the Company through an instrument duly executed by such seller
specifically stating that it is for use in the preparation thereof or (2) to
the extent that such information is limited to a description of the seller,
such seller's plan of distribution or such other information regarding the
seller, contained in a writing presented to such seller stating explicitly that
such information is for use in the preparation of a prospectus and requesting
that such seller confirm such information within a reasonable specified period
of time; and provided, further, that the Company will not be liable to any
Person who participates as an underwriter in the offering or sale of
Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, under the indemnity
agreement in this Section 5(a) with respect to any preliminary prospectus or
the final prospectus or the final prospectus as amended or supplemented, as the
case may be, to the extent that any such loss, claim, damage or liability of
such underwriter or controlling Person results from the fact that such
underwriter sold Registrable Securities to a person to whom there was not sent
or given, at or prior to the written confirmation of such sale, a copy of the
final prospectus (including any documents incorporated by reference therein) or
of the final prospectus as then amended or supplemented (including any
documents incorporated by reference therein), whichever is most recent, if the
Company has previously furnished copies thereof to such underwriter. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such seller or any Indemnified Party and shall survive
the transfer of such securities by such seller.
(b) Indemnification by the Seller. The Company may require, as
a condition to including any Registrable Securities in any registration
statement filed in accordance with Section 2 or 3 hereof, that the Company
shall have received an undertaking reasonably satisfactory to it from the
prospective seller of such Registrable Securities or any underwriter to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 5(a)) the Company and all other prospective sellers with
respect to (a) any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereto or a
document incorporated by reference into any of the foregoing, or (b) any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading, if such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written information
that is (1) furnished to the Company through an instrument duly executed by
such seller or underwriter specifically stating that it is for use in the
preparation of such registration statement, preliminary, final or summary
prospectus or amendment or supplement thereto, or a document incorporated by
reference into any of the foregoing or (2) to the extent that such information
is limited to a description of such seller or underwriter, such seller's or
underwriter's plan of distribution or such other information regarding the
seller, contained in a writing presented to such seller or underwriter
explicitly stating that such information is for use in the preparation of a
prospectus and requesting that such seller or underwriter confirm such
information within a reasonable specified period of time. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company or any of the prospective sellers, or any of their
respective affiliates, directors, officers or controlling Persons and shall
survive the transfer of such securities by such seller. In no event shall the
liability of any selling Holder of Registrable Securities hereunder be greater
in amount than the dollar amount of the proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any action
or proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 5, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; provided, however, that the failure
of the indemnified party to give notice as provided herein shall not relieve
the indemnifying party of its obligations under this Section 5, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified party and indemnifying parties may exist in respect of
such claim, the indemnifying party will be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel selected by the
indemnifying party which is reasonably satisfactory to such indemnified party,
and after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof, the giving by the claimant or plaintiff to such
indemnified party a release with respect to such claim or litigation from any
monetary or criminal liability and from any liability for specific performance
or other equitable or injunctive relief.
(d) Other Indemnification. Indemnification similar to that
specified in the preceding subdivisions of this Section 5 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
securities under any federal or state law or regulation or governmental
authority other than the Securities Act.
6. Rule 144. If the Company shall have filed a registration
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act
(except to the extent filed solely as a guarantor of the Notes), the Company
covenants that it will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder (or, if the Company is not required to file such reports, it
will, upon the request of any Holder of Registrable Securities, make publicly
available such information), and it will take such further action as any Holder
of Registrable Securities may reasonably request, all to the extent required
from time to time to enable such Holder to sell shares of Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the SEC. 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. Notwithstanding anything
contained in this Section 6, the Company may deregister under Section 12 of the
Exchange Act if it then is permitted to do so pursuant to the Exchange Act and
the rules and regulations thereunder.
7. Selection of Counsel. In connection with any registration of
Registrable Securities pursuant to Section 2 or 3 hereof, the Holders of a
majority of the Registrable Securities covered by any such registration may
select one counsel to represent all Holders of Registrable Securities covered
by such registration. In such event, the Holders of Registrable Securities
shall notify the Company in writing of the name and address of the counsel
selected pursuant to this Section 7.
8. Tag-along Rights. With respect to any proposed Transfer of any
shares of Common Stock (or the common stock of any Affiliate of Terex which
directly or indirectly holds any Common Stock) owned by Terex or any of its
Affiliates other than (i) a Transfer of such shares to an Affiliate of Terex
who agrees to be bound by the terms of this Agreement as if it were Terex and
(ii) offers and sales of shares of Common Stock in a Public Offering, Terex and
its Affiliates shall have the obligation, and each Holder shall have the right,
to require the proposed transferee to purchase from each such Holder (A) in the
event that, immediately following such Transfer, Terex and its Affiliates would
have beneficial ownership of voting stock of the Company representing more than
50% of the combined voting power of all voting stock of the Company (including,
for purposes of such calculation, all voting stock of the Company issuable upon
the exercise of any outstanding options, warrants or rights to purchase voting
stock of the Company or upon the conversion or exchange of any outstanding
securities convertible into or exchangeable for voting stock of the Company),
the Pro Rata Number (defined below) of shares of Common Stock or (B) in the
event that Terex and its Affiliates have, or would have immediately following
such Transfer, beneficial ownership of voting stock of the Company representing
50% or less of the combined voting power of all voting stock of the Company
(calculated in accordance with the parenthetical in clause (A) above), the
Equivalent Number (defined below) of shares of Common Stock; provided, however,
that if any such Transfer shall constitute a Change of Control, then Terex and
its Affiliates shall have the obligation, and each Holder shall have the right,
to require the proposed transferee to purchase from each such Holder all shares
of Common Stock held by such Holder. Any sale of Common Stock by the Holders
pursuant to this Section 8 shall be at the same gross price per share (provided
that in the case of the transfer of common stock of an Affiliate of Terex, such
gross price per share shall be adjusted as determined by an independent
mutually satisfactory investment banking firm to take into account the
percentage interest of the Holders in the Company) and upon the same terms and
conditions as to be paid and given to Terex and/or its Affiliates, as the case
may be; provided that the Holders shall not be required to make any
representations, warranties, covenants, indemnities or other agreements to the
proposed transferee except for customary representations and warranties with
respect to each such Holder's ownership of, good and valid title to, and such
other customary and reasonable representations and warranties as the proposed
transferee shall request as to, the shares of Common Stock to be sold by such
Holder; and provided, further, that in no event shall the Holders be required
to give any representation or warranty relating to the business, assets,
liabilities, operations or financial condition or prospects of the Company.
Terex shall give written notice, together with access (solely for the purpose
of the Holders making their decision whether to exercise the tag-along rights
set forth in this Section 8) to the same due diligence information, subject to
a the execution of a mutually reasonably acceptable confidentiality agreement,
as is provided to the proposed transferee, to the Holders of each proposed
Transfer giving rise to the rights of the Holders set forth in the first
sentence of this Section 8, at least 40 days prior to the proposed consummation
of such Transfer, setting forth the number of shares proposed to be so
transferred, the name and address of the proposed transferee, the terms and
conditions of payment offered by the proposed transferee, the number of shares
each Holder may sell to such proposed transferee (in accordance with the first
sentence of this Section 8), the proposed amount and form of consideration, the
proposed closing date (which shall be reasonable) and a reproduction of the
calculations made to arrive at such number. The tag-along rights provided by
this Section 8 must be exercised by a Holder within 20 days following the later
of the date of (x) the execution of a mutually reasonably acceptable
confidentiality agreement and (y) receipt of the notice required by the
preceding sentence (the earlier of such dates, the "Trigger Date"), by delivery
of a written notice to Terex indicating such Holder's desire to exercise its
rights and specifying the number of shares (up to the maximum number of shares
owned by such Holder required to be purchased by the proposed transferee
pursuant to the first sentence of this Section 8) it desires to sell; provided
that if such due diligence information is not available within 10 days of the
Trigger Date, the Holders shall have 10 additional days in which to exercise
such tag-along rights (and in any event shall have at least 20 days from the
time such information is made available in which to exercise such rights). If
the proposed transferee fails or refuses to purchase shares from any Holder
that has exercised its tag-along rights in accordance with the preceding
sentence, or if Terex fails to give any notice specified herein, then Terex and
its Affiliates shall not be permitted to make the proposed Transfer, and any
such attempted Transfer shall be void and of no effect. If the Holders
exercise their rights under this Section 8, the closing of the purchase of the
shares with respect to which such rights have been exercised shall take place
concurrently with the closing of the sale of the shares of Terex and/or its
Affiliates, as the case may be. If the Holders elect not to exercise their
rights under this Section 8 and the closing of the sale of the shares of Terex
and/or its Affiliates, as the case may be, shall not have taken place within 90
days following the proposed closing date set forth in the notice referred to
above, then the Holders' rights under this Section 8 shall be reactivated and
the proposed Transfer shall again be subject to all of the terms and conditions
of this Section 8.
As used in this Section 8, "Pro Rata Number" shall mean, with respect
to any Holder, the number of shares of Common Stock equal to the lesser of (i)
the total number of shares of Common Stock held by such Holder or (ii) the
product of (a) the total number of shares of Common Stock proposed to be sold
by Terex and its Affiliates (or in the case of the sale of common stock of an
Affiliate of Terex, the percentage interest proposed to be sold by Terex and
its Affiliates multiplied by the number of shares of Common Stock owned by
Terex and its Affiliates) multiplied by (b) a fraction of which the numerator
shall be the number of shares of Common Stock held by such Holder and of which
the denominator shall be the number of shares of Common Stock held by all
Holders plus the number of shares of Common Stock held by Terex and its
Affiliates.
As used in this Section 8, "Equivalent Number" shall mean, with
respect to any Holder, a number of shares of Common Stock equal to the lesser
of (i) the total number of shares of Common Stock held by such Holder or (ii)
the product of (a) the total number of shares of Common Stock proposed to be
sold by Terex and its Affiliates (or in the case of the sale of common stock of
an Affiliate of Terex, the percentage interest proposed to be sold by Terex and
its Affiliates multiplied by the number of shares of Common Stock owned by
Terex and its Affiliates) multiplied by (b) a fraction of which the numerator
shall be the number of shares of Common Stock held by such Holder and of which
the denominator shall be the number of shares of Common Stock held by all
Holders.
9. Additional Rights. With respect to any proposed issuance and
sale by the Company of shares of Common Stock of the Company (or by an
Affiliate of Terex, which directly or indirectly holds Common Stock, of shares
of common stock of such Affiliate) in any transaction or series of related
transactions (other than a Public Offering) which would result in a Change of
Control, Terex shall have the obligation, and each Holder shall have the right,
to require the proposed purchaser to purchase from each such Holder all shares
of Common Stock held by such Holder. Any sale of Common Stock by the Holders
pursuant to this Section 9 shall be at the same gross price per share (provided
that in the case of the proposed issuance and sale of common stock of an
Affiliate of Terex, such gross price per share shall be adjusted as determined
by an independent mutually satisfactory investment banking firm to take into
account the percentage interest of the Holders in the Company) and upon the
same terms and conditions as to be paid and given to the Company or any such
Affiliate, provided that the Holders shall not be required to make any
representations, warranties, covenants, indemnities or other agreements to the
proposed purchaser except for customary representations and warranties with
respect to each such Holder's ownership of, good and valid title to, and such
other customary and reasonable representations and warranties as the proposed
purchaser shall request as to, the shares of Common Stock to be sold by such
Holder and provided, further, that in no event shall the Holders be required to
give any representation or warranty to such purchaser relating to the business,
assets, liabilities, operations or financial condition or prospects of the
Company. The Company or such Affiliate shall give written notice, together
with access (solely for the purpose of the Holders making their decision
whether to exercise the additional rights provided for in this Section 9) to
the same due diligence information, subject to the execution of a mutually
reasonably acceptable confidentiality agreement, as is provided to the proposed
purchaser, to the Holders of each proposed issuance giving rise to the rights
of the Holders set forth in the first sentence of this Section 9, at least 40
days prior to the proposed consummation of such issuance and sale, setting
forth the number of shares proposed to be so issued, the name and address of
the proposed purchaser and the proposed amount and form of consideration, the
proposed closing date (which shall be reasonable) and the terms and conditions
of payment offered by the proposed purchaser. The rights provided by this
Section 9 must be exercised by a Holder within 20 days following the later of
(x) the date of the execution of a mutually reasonably acceptable
confidentiality agreement and (y) receipt of the notice required by the
preceding sentence (the earlier of such dates, the "Section 9 Trigger Date"),
by delivery of a written notice to the Company or such Affiliate, as the case
may be, indicating such Holder's desire to exercise its rights; provided that
if such due diligence information is not available within 10 days of the
Section 9 Trigger Date, the Holders shall have 10 additional days in which to
exercise the additional rights provided for herein (and in any event shall have
at least 20 days from the time such information is made available in which to
exercise such rights). If the proposed purchaser fails or refuses to purchase
shares from any Holder that has exercised its rights in accordance with the
preceding sentence, or if the Company or such Affiliate, as the case may be,
fails to give any notice specified herein, then the Company or such Affiliate,
as the case may be, shall not be permitted to issue any shares to such
purchaser, and any such attempted issuance shall be void and of no effect. If
the Holders exercise their rights under this Section 9, the closing of the
purchase of the Holders' shares of Common Stock shall take place concurrently
with the closing of the issuance and sale of shares by the Company or any such
Affiliate, as the case may be, to such purchaser. If the Holders elect not to
exercise their rights under this Section 9 and the closing of the issuance and
sale of shares by the Company or any such Affiliate shall not have taken place
within 90 days following the proposed closing date set forth in the notice
referred to above, then the Holders' rights under this Section 9 shall be
reactivated and the proposed issuance and sale of shares of Common Stock shall
again be subject to all of the terms and conditions of this Section 9.
10. Drag-along Rights. (i) If Terex together with all of its
Affiliates (Terex and all such Affiliates taken together being referred to
herein as the "Terex Group") propose to sell for Acceptable Drag-Along
Consideration all shares of Common Stock held by it in a bona fide arms-length
transaction other than a Public Offering to a purchaser who is not an Affiliate
of Terex (the "Third Party Purchaser"), then (in addition to the right of the
Holders to participate in such sale pursuant to Section 8 hereof) the Terex
Group may, at its option, require the Holders to sell all shares of Common
Stock held by them to the Third Party Purchaser for the same consideration per
share and otherwise on the same terms and conditions upon which the Terex Group
sells its shares of Common Stock; provided, however, that the Holders shall not
be required to make any representation, warranty, covenant, indemnity or other
agreement of any kind in connection with such sale of Common Stock, except for
customary representations and warranties with respect to each such Holder's
ownership of, good and valid title to, and such other customary and reasonable
representations and warranties as the proposed transferee shall request as to,
the shares of Common Stock to be sold by such Holder; and, provided, further,
that in no event shall the Holders be required to give any representation or
warranty relating to the business, assets, liabilities, operations or financial
condition or prospects of the Company.
(ii) The Terex Group shall send written notice of the exercise
of its rights pursuant to this Section 10 to each of the Holders, setting forth
the consideration per share to be paid by the Third Party Purchaser and the
other terms and conditions of the transaction, including the date scheduled for
the closing thereof. At the closing, each of the Holders shall deliver to a
representative of the Terex Group designated in the notice certificates
representing all shares of Common Stock held by such Holder, duly endorsed,
together with all other documents required to be executed in connection with
such transactions. In the event that a Holder shall fail to deliver such
certificates to the Terex Group, the Company shall cause the books and records
of the Company to show that such shares are bound by the provisions of this
Section 10 and that such shares shall be transferred only to the Third Party
Purchaser upon surrender for transfer by the Holder thereof. In the event that
the closing of the sale of all of the shares of Common Stock of the Holders
does not occur within 90 days of the scheduled closing date as set forth in the
aforementioned notice, the Terex Group shall return to each of the Holders all
certificates representing shares of Common Stock that such Holder delivered for
sale pursuant hereto.
(iii) If the Terex Group does not complete the sale of all the
shares of Common Stock of the Holders in accordance herewith, all the
provisions contained in this Agreement shall remain in effect.
(iv) At the closing of the sale of all of the shares of Common
Stock of the Holders and upon the surrender of the certificates representing
the Holders' shares of Common Stock, the Terex Group shall cause the Third
Party Purchaser to remit directly to each of the Holders (to the extent the
initial Holders of the Series A Preferred Stock or any their Affiliates are
then the Holders of the Common Stock, by electronic wire transfer of
immediately available funds to the bank account of each Holder notified in
writing to the Third Party Purchaser by such Holder at least three business
days prior to the closing) the total gross sales price of the shares of Common
Stock of such Holder sold pursuant thereto.
11. Legend. As of the date that Legris and Potain become Holders,
in addition to any legend required by the Certificate of Designation for the
Series A Preferred Stock, Terex and the Company shall cause substantially the
following legend to be placed on all certificates (including those held by
Terex) representing any shares of Common Stock:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
STOCKHOLDERS AGREEMENT, DATED MAY 9, 1995, A COPY OF WHICH IS ON FILE AT THE
OFFICE OF THE SECRETARY OF THE COMPANY. ANY PROPOSED TRANSFER OF SHARES OF
COMMON STOCK WHICH IS NOT IN COMPLIANCE WITH THE TERMS OF SUCH AGREEMENT SHALL
BE VOID AND WITHOUT EFFECT."
12. Adjustment of Series A Redemption Price and Series A Liquidation
Amount. If the Company is unable as a matter of law to adjust the Series A
Redemption Price and the Series A Liquidation Value in accordance with the
terms of the Series A Preferred Stock, the Company shall (i) issue to the
holders thereof, for each share then outstanding, a number of fully paid and
nonassessable shares of Series A Preferred Stock equal to the quotient of (a)
the excess of (1) the Series A Redemption Price or the Series A Liquidation
Amount, as the case may be (as each of such terms is defined in the terms of
the Series A Preferred Stock), after giving effect to such adjustment, over (2)
FF127,000 divided by (b) FF127,000, (ii) if permitted by law, redeem the Series
A Preferred Stock in full at the Series A Redemption Price, as adjusted, or
(iii) engage in such other transaction or transactions in such amounts and in
such a manner so as to achieve the substantially equivalent economic result as
the adjustment provided for in the terms of the Series A Preferred Stock,
provided that, in the case of each of clauses (i), (ii) and (iii) of this
Section 12, the holders of the Series A Preferred Stock shall not be subject to
any incremental amount of Taxes as a result of such transaction or
transactions. Any issuance of new shares of Series A Preferred Stock pursuant
to clause (i) above and any transaction or transactions effected pursuant to
clause (iii) above shall be deemed in consideration of the transactions
contemplated by the Share Purchase Agreement.
13. Information Rights. From and after the date hereof, the Company
shall furnish each holder of Series A Preferred Stock and each Holder with
consolidated quarterly and annual balance sheets, income statements and
statements of cash flows of the Company and annual budgets of the Company. At
least 30 days prior to any redemption of the Series A Preferred Stock in Common
Stock pursuant to paragraph (5) of the Certificate of Designation with respect
thereto, the Company shall enter into a mutually reasonably acceptable
confidentiality agreement and shall provide, subject to such confidentiality
agreement, to the holders of Series A Preferred Stock an opportunity to perform
a due diligence investigation of the Company solely for the purpose of making
their decision whether to convert or accept conversion into Common Stock,
including, without limitation, the review of three-year consolidated financial
statements and unconsolidated financial statements for the Company and each of
its subsidiaries, three-year projected financial information regarding the
Company including (without limitation) information with respect to backlog, a
description of the consolidated indebtedness of the Company, a description of
all equity securities of the Company and its subsidiaries, and a list of the
liabilities of the Company and its subsidiaries (including contingent or
conditional liabilities) including a description of litigation involving the
Company and/or any of its subsidiaries.
14. Adjustment of Series A Redemption Price and Series A Liquidation
Amount. Notwithstanding anything to the contrary contained in the Share
Purchase Agreement, in the event of any adjustment of the Series A Redemption
Price and Series A Liquidation Amount pursuant to paragraph (8) of the
Certificate of Designation with respect thereto, no adjustment shall be made to
the number of shares of Series A Preferred Stock issued and outstanding.
15. Miscellaneous.
(a) Amendments and Waivers. This Agreement may not be amended
except pursuant to an instrument in writing signed by all of the parties
hereto.
(b) Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
(c) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
telecopy, telegram or telex or by commercial express courier (courier fees
prepaid) to the respective parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(i) if to Terex, to:
Terex Corporation
500 Post Road East
Westport, CT 06880
Attention: Marvin B. Rosenberg
Telecopy: (203) 222-7976
Telephone: (203) 222-5955
(ii) if to the Company, to:
Terex Cranes, Inc.
500 Post Road East
Westport, CT 06880
Attention: Marvin B. Rosenberg
Telecopy: (203) 222-7976
Telephone: (203) 222-5955
(iii)if to Legris or Potain, to:
Legris Industries S.A.
74, rue de Paris
BP1105
35014 Rennes Cedex
FRANCE
Attention: Emmanuel Faber
Telecopy: (33) 99.25.56.88
Telephone: (33) 99.25.55.82
with a copy to:
Gide Loyrette Nouel
26, Cours Albert 1er
75008 Paris
FRANCE
Attention: Thierry Vassogne
Telecopy: (33)(1) 45.62.84.31
Telephone: (33)(1) 45.75.61.23
(iv) if to any other holder of Common Stock, to the address
of such other holder as shown in the stock record book of the Company, or to
such other address as any of the above shall have designated in writing to all
of other above.
(d) Descriptive Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
(e) Severability. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the remaining provisions, paragraphs,
words, clauses, phrases or sentences hereof shall not be in any way impaired,
it being intended that all rights, powers and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.
(f) Counterparts. This Agreement may be executed in one or
more counterparts, and by different parties on separate counterparts, each of
which shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
(g) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
applicable to contracts made and to be
performed therein without regard to the principles of conflicts of laws
thereof.
(h) Specific Performance. The parties hereto acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, it is agreed that they
shall be entitled to an injunction or injunctions to prevent breaches of the
provision of this Agreement and to enforce specifically the terms and
provisions hereof in any court of competent jurisdiction in the United States
or any state thereof, in addition to any other remedy to which they may be
entitled at law or equity.
IN WITNESS WHEREOF, each of the undersigned has
executed this Agreement or caused this Agreement to be executed on its behalf
as of the date first written above.
TEREX CORPORATION
By: /s/ Marvin B. Rosenberg
Marvin B. Rosenberg
Senior Vice President
TEREX CRANES, INC.
By: /s/ Marvin B. Rosenberg
Marvin B. Rosenberg
Vice President
LEGRIS INDUSTRIES S.A.
By: /s/ Emmanuel Faber
Name:
Title:
POTAIN S.A.
By: /s/ Emmanuel Faber
Name:
Title:
