EXHIBIT 3
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this "Agreement"), dated as of August
21, 1997, by and among American Industrial Partners Acquisition Company, LLC, a
Delaware limited liability company ("Parent"), Bucyrus Acquisition Corp., a
Delaware corporation and a wholly owned subsidiary of Parent ("the Purchaser")
and Xxxxxxx National Life Insurance Company, a Michigan corporation (the
"Stockholder").
WHEREAS, the Stockholder is, as of the date hereof, the record
and beneficial owner of 4,228,382 shares of common stock, par value $0.01 per
share (the "Common Stock") of Bucyrus International, Inc., a Delaware
corporation (the "Company") and, together with PPM America, Inc., a Delaware
Corporation, shares voting power and dispositive power with respect to such
shares; and
WHEREAS, the Stockholder is, as of the date hereof, the record
and beneficial owner of $63,963,000 in principal amount of the Company's 10.5%
Secured Notes due December 14, 1999 (the "Secured Notes"), which Secured Notes
are governed by that certain Indenture, dated December 14, 1994, between
Bucyrus-Erie Company, predecessor to the Company, and Xxxxxx Trust and Savings
Bank, as Trustee (the "Indenture") and by that certain Security Agreement, dated
December 14, 1994, between Bucyrus-Erie Company and Xxxxxx Trust and Savings
Bank, as Collateral Agent (the "Security Agreement"); and
WHEREAS, Parent, the Purchaser and the Company concurrently
herewith are entering into an Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), which provides, among other things, for the
acquisition of the Company by Parent by means of a cash tender offer (the
"Offer") for any and all of the outstanding shares of Common Stock and for the
subsequent merger (the "Merger") of the Purchaser with and into the Company upon
the terms and subject to the conditions set forth in the Merger Agreement; and
WHEREAS, the Company and the Stockholder concurrently herewith
are entering into a Settlement Agreement, dated as of the date hereof, (the
"Settlement Agreement"), which provides, among other things, for the settlement
and release of certain claims that the Stockholder has asserted against the
Company and for the allocation, as between the Company and the Stockholder, of
amounts that the Company may recover in respect of certain claims against third
parties; and
WHEREAS, as a condition to the willingness of Parent and the
Purchaser to enter into the Merger Agreement, and in order to induce Parent and
the Purchaser to enter into the Merger Agreement, the Stockholder has agreed to
enter into this Agreement and the Settlement Agreement.
NOW, THEREFORE, in consideration of the execution and delivery
by Parent and the Purchaser of the Merger Agreement and the foregoing and the
mutual representations, warranties, covenants and agreements set forth herein
and therein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Representations and Warranties of the Stockholder.
The Stockholder hereby represents and warrants, to Parent and the Purchaser as
follows:
(a) The Stockholder is the record and beneficial
owner of 4,228,382 shares of Common Stock (as may be adjusted from time to time
pursuant to Section 6 hereof, the "Shares"), and the Stockholder is the record
and beneficial owner of $63,963,000 in principal amount of the Secured Notes (as
may be adjusted from time to time pursuant to Section 6 hereof, the
"Stockholder's Secured Notes").
(b) The Stockholder is a corporation duly organized,
validly existing and in good standing under the laws of its respective
jurisdiction, has all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby,
and has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement.
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(c) This Agreement has been duly authorized, executed
and delivered by the Stockholder and constitutes the legal, valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally, and (ii) the availability of the
remedy of specific performance or injunctive or other forms of equitable relief
may be subject to equitable defenses and would be subject to the discretion of
the court before which any proceeding therefor may be brought.
(d) Neither the execution and delivery of this
Agreement nor the consummation by the Stockholder of the transactions
contemplated hereby will result in a violation of, or a default under, or
conflict with, any contract, trust, commitment, agreement, understanding,
arrangement or restriction of any kind to which the Stockholder is a party or
bound or to which the Shares or the Secured Notes are subject. Consummation by
the Stockholder of the transactions contemplated hereby will not violate, or
require any consent, approval, or notice under, any provision of any judgment,
order, decree, statute, law, rule or regulation applicable to the Stockholder,
the Shares or the Stockholder's Secured Notes, except for any necessary filing
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") or
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), or state takeover laws.
(e) The Shares and the certificates representing the
Shares and the Stockholder's Secured Notes are now and at all times during the
term hereof will be held by the Stockholder, or by a nominee or custodian for
the benefit of the Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or arrangements
or any other encumbrances whatsoever, except for any such encumbrances or
proxies arising hereunder; provided, however, that the Stockholder may transfer
all or a portion of the Shares or the Secured Notes to be a person or entity
who, by written instrument reasonably acceptable in form and substance to
Parent, agrees to be bound by each of the terms of this Agreement.
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(f) To the best knowledge of the Stockholder, without
independent investigation, the representations of the Company set forth in
Section 3.6 (with respect to such matters as have been disclosed to the
Stockholder or any of its affiliates in writing prior to the date hereof), 3.7
(with respect to liabilities or indebtedness owed to the Stockholder or any of
its affiliates), 3.8 (with respect to such matters in which the Stockholder or
any of its affiliates is a party) 3.15 (with respect to such matters as to which
the Stockholder or any of its affiliates have received written notice), and 3.20
(with respect to such matters involving the Stockholder or any of its
affiliates) of the Merger Agreement, as modified by the Company Disclosure
Schedule (as defined in the Merger Agreement), are true and correct in all
material respects as of the date of this Agreement. The representations and
warranties of the Stockholder set forth in this paragraph (f) shall terminate
upon the earlier to occur of the Effective Time (as defined in the Merger
Agreement) and the Termination Date.
SECTION 2. Representations and Warranties of Parent and the
Purchaser. Each of Parent and the Purchaser hereby, jointly and severally,
represents and warrants to the Stockholder as follows:
(a) Parent is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware, has all requisite corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby, and has
taken all necessary corporate action to authorize the execution, delivery and
performance of this Agreement. The Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
has all requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby, and has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Agreement.
(b) This Agreement has been duly authorized, executed
and delivered by each of Parent and the Purchaser and constitutes the legal,
valid and binding obligation of each of Parent and the Purchaser, enforce-
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able against each of them in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors' rights generally and
(ii) the availability of the remedy of specific performance or injunctive or
other forms of equitable relief may be subject to equitable defenses and would
be subject to the discretion of the court before which any proceeding therefor
may be brought.
(c) Neither the execution and delivery of this
Agreement nor the consummation by each of Parent and the Purchaser of the
transactions contemplated hereby will result in a violation of, or a default
under, or conflict with, any contract, trust, commitment, agreement,
understanding, arrangement or restriction of any kind to which each of Parent
and the Purchaser is a party or bound. The consummation by each of Parent and
the Purchaser of the transactions contemplated hereby will not violate, or
require any consent, approval, or notice under, any provision of any judgment,
order, decree, statute, law, rule or regulation applicable to either Parent or
the Purchaser, except for any necessary filing under the HSR Act or state
takeover laws.
SECTION 3. Purchase and Sale of the Shares. The Stockholder
hereby agrees that it shall tender the Shares into the Offer promptly, and in
any event no later than the fifth business day following the commencement of the
Offer, or, if the Stockholder has not received the offering materials by such
time, within two business days following receipt of such materials, and that it
shall not withdraw any Shares so tendered. The Purchaser hereby agrees to
purchase all the Shares so tendered at a price per Share equal to $18.00 per
Share, or such higher price per Share as may be offered by the Purchaser in the
Offer; provided that the Purchaser's obligation to accept for payment and pay
for the Shares in the Offer is subject to all the terms and conditions of the
Offer set forth in the Merger Agreement and Annex I thereto.
SECTION 4. Transfer of the Shares and the Stockholder's
Secured Notes. Prior to the termination of this Agreement, except as otherwise
provided herein, the Stockholder shall not: (i) transfer (which term shall
include, without limitation, for the purposes of this Agreement, any sale, gift,
pledge or other disposition),
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or consent to any transfer of, any or all of the Shares or the Stockholder's
Secured Notes or any interest therein; (ii) enter into any contract, option or
other agreement or understanding with respect to any transfer of any or all of
the Shares or the Stockholder's Secured Notes or any interest therein; (iii)
except as provided in Section 8(b) hereto, grant any proxy, power-of-attorney or
other authorization or consent in or with respect to the Shares or the
Stockholder's Secured Notes; (iv) deposit the Shares or the Stockholder's
Secured Notes into a voting trust or enter into a voting agreement or
arrangement with respect to the Shares or the Stockholder's Secured Notes; or
(v) take any other action with respect to the Shares or the Secured Notes that
would in any way restrict, limit or interfere with the performance of their
obligations hereunder or the transactions contemplated hereby; provided,
however, that the Stockholder may transfer all or a portion of the Shares or the
Secured Notes to a person or entity who, by written instrument reasonably
acceptable in form and substance to Parent, agrees to be bound by each of the
terms of this Agreement.
SECTION 5. Voting of Shares; Grant of Irrevocable Proxy;
Appointment of Proxy.
(a) The Stockholder hereby agrees that, during the
term of this Agreement, at any meeting (whether annual or special and whether or
not an adjourned or postponed meeting) of the holders of Common Stock, however
called, or in connection with any written consent of the holders of Common
Stock, the Stockholder will appear at the meeting or otherwise cause the Shares
to be counted as present thereat for purposes of establishing a quorum and vote
or consent (or cause to be voted or consented) the Shares (i) in favor of the
Merger, (ii) against any action or agreement which would impede, interfere with
or prevent the Merger, including any other extraordinary corporate transaction,
such as a merger, reorganization or liquidation involving the Company and a
third party or any other proposal of a third party to acquire the Company, and
(iii) if requested by Parent, in favor of a shareholder resolution proposed by
Parent pursuant to Section 180.1150(4) of the Wisconsin Business Corporation
Law.
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(b) The Stockholder hereby irrevocably grants to, and
appoints, Parent and any nominee thereof, its proxy and attorney-in-fact (with
full power of substitution) during the term of this Agreement, for and in the
name, place and stead of the Stockholder, to vote the Shares, or grant a consent
or approval in respect of the Shares, in connection with any meeting of the
stockholders of the Company (i) in favor of the Merger, and (ii) against any
action or agreement which would impede, interfere with or prevent the Merger,
including any other extraordinary corporate transaction, such as a merger,
reorganization or liquidation involving the Company and a third party or any
other proposal of a third party to acquire the Company.
(c) The Stockholder represents that any proxies
heretofore given in respect of the Shares, if any, are not irrevocable, and that
such proxies are hereby revoked.
(d) The Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 5 is given in connection with the
execution of the Merger Agreement, and that such irrevocable proxy is given to
secure the performance of the duties of the Stockholder under this Agreement.
The Stockholder hereby further affirms that the irrevocable proxy is coupled
with an interest and, except as set forth in Section 8 hereof, is intended to be
irrevocable in accordance with the provisions of Section 212(e) of the Delaware
General Corporation Law (the "DGCL").
SECTION 6. Certain Events. In the event of any stock split,
stock dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Common Stock, the Secured Notes
or the acquisition of additional shares of Common Stock, additional Secured
Notes or other securities or rights of the Company by the Stockholder, the
number of Shares and the aggregate principal amount of the Stockholder's Secured
Notes shall be adjusted appropriately, and this Agreement and the obligations
hereunder shall attach to any additional shares of Common Stock, additional
Secured Notes or other securities or rights of the Company issued to or acquired
by the Stockholder.
SECTION 7. Grant of Option.
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(a) The Stockholder hereby grants to Parent an
irrevocable option (the "Option") to purchase the Shares at a purchase price per
share of $18.00 per Share (the "Exercise Price"), in the manner set forth in
this Section.
(b) At any time or from time to time prior to the
termination of the Option granted hereunder in accordance with the terms of this
Agreement, Parent (or its designee) may exercise the Option, in whole but not in
part (except as expressly permitted by Section 7(d)), if on or after the date
hereof:
(i) any corporation, partnership, individual, trust,
unincorporated association, or other entity or "person" (as defined in
Section 13(d)(3) of the Exchange Act) other than Parent or any of its
"affiliates" (as defined in the Exchange Act) (a "Third Party"), shall
have:
(A) commenced or announced an
intention to commence a bona fide tender offer or exchange offer for
any shares of Common Stock, the consummation of which would result in
"beneficial ownership" (as defined under the Exchange Act) by such
Third Party (together with all such Third Party's affiliates and
"associates" (as such term is defined in the Exchange Act)) of 50% or
more of the then outstanding voting equity of the Company (either on a
primary or a fully diluted basis);
(B) acquired beneficial ownership of
shares of Common Stock which, when aggregated with any shares of Common
Stock already owned by such Third Party, its affiliates and associates,
would result in the aggregate beneficial ownership by such Third Party,
its affiliates and associates of 15% or more of the then outstanding
voting equity of the Company (either on a primary or a fully diluted
basis), provided, however, that "Third Party" for purposes of this
clause (ii) shall not include any corporation, partnership, person,
other entity or group which beneficially owns more than 15% of the
outstanding voting equity of the Company (either on a primary or a
fully diluted basis) as of the date hereof and that does not, after the
date hereof, increase such ownership percentage by more
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than an additional 1% of the outstanding voting equity of the Company
(either on a primary or a fully diluted basis);
(C) filed a Notification and Report
Form under the HSR Act, reflecting an intent to acquire the Company or
any assets or securities of the Company;
(D) acquired assets constituting
15% or more of the total assets or earning power of the Company taken
as a whole;
(E) entered into an agreement with
the Company which contemplates the acquisition of (x) assets
constituting 15% or more of the total assets or earning power of the
Company taken as a whole or (y) beneficial ownership of 15% or more of
the outstanding voting equity of the Company;
(F) solicited "proxies" in a
"solicitation" subject to the proxy rules under the Exchange Act,
executed any written consent or become a "participant" in any
"solicitation" (as such terms are defined in Regulation 14A under the
Exchange Act), in each case with respect to the Common Stock; or
(ii) any of the events described in Section 8.1(g) or
(h) of the Merger Agreement that would allow Parent to terminate the
Merger Agreement has occurred (but without the necessity of Parent
having terminated the Merger Agreement).
In the event that Parent wishes to exercise all or any part of
the Option, Parent shall give written notice (the "Option Notice", with the date
of the Option Notice being hereinafter called the "Notice Date") to the
Stockholder specifying the number of Shares it will purchase and a place and
date (not earlier than three (3) nor later than twenty (20) business days from
the Notice Date) for closing such purchase (a "Closing"). Parent's obligation to
purchase Shares upon any exercise of the Option, and the Stockholder's
obligation to sell Shares upon any exercise of the Option, is subject (at the
election of each of Parent or the Stockholder) to the conditions that (i) no
preliminary or permanent injunction or
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other order against the purchase, issuance or delivery of the Shares issued by
any federal, state or foreign court of competent jurisdiction shall be in effect
(and no action or proceeding shall have been commenced or threatened for
purposes of obtaining such an injunction or order) and (ii) any applicable
waiting period under the HSR Act shall have expired. The Parent's obligation to
purchase Shares upon any exercise of the Option is further subject (at its
election) to the condition that there shall have been no material breach of the
representations, warranties, covenants or agreements of the Stockholder
contained in this Agreement or of the Company contained in the Merger Agreement.
Notwithstanding the foregoing, any failure by Parent to purchase Shares upon
exercise of the Option at any Closing as a result of the non-satisfaction of any
of the foregoing conditions shall not affect or prejudice Parent's right to
purchase such Shares upon the subsequent satisfaction of such conditions. The
Stockholder's obligation to sell Shares upon any exercise of the Option (and the
Stockholder's obligations under Section 5 of this Agreement) is subject (at its
election) to the further conditions that there shall have been no material
breach of the representations, warranties, covenants or agreements of the
Purchaser or the Parent contained in this Agreement or contained in the Merger
Agreement, which breach has not been cured within thirty days of the receipt of
written notice thereof from the Stockholder.
(c) At any Closing, (i) the Stockholder will deliver
to Parent the certificate or certificates representing the number of Shares
being purchased in proper form for transfer upon exercise of the Option in the
denominations designated by Parent in the Option Notice, and, if the Option has
been exercised in part, a new Option evidencing the rights of Parent to purchase
the balance of the Shares subject thereto, and (ii) Parent shall pay the
aggregate purchase price for the Shares to be purchased by wire transfer of
immediately available funds to an account, which account shall be designated in
writing to Parent within five days after execution of this Agreement in the
amount of the Exercise Price times the number of Shares to be purchased.
(d) Notwithstanding any other provision of this
Agreement, in the event that the Merger Agreement is terminated and at any time
prior to the Termination
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Date (as hereinafter defined) a person other than Parent or any of its
affiliates acquires a majority of the outstanding shares of Common Stock at a
price higher than the Exercise Price (an "Alternative Transaction"), then Parent
shall promptly either reduce the number of Shares subject to the Option, pay
cash to the Stockholder or do both such that the actual Total Profit (as
hereinafter defined) realized or to be realized by Parent upon the consummation
of an Alternative Transaction does not exceed 50% of the Total Profit that
Parent would otherwise realize had it not taken the foregoing actions; provided
that, in the event that Parent elects to reduce the number of Shares subject to
the Option, there shall be pending, at the time Parent makes such election, a
transaction involving the Company that, if consummated, would allow the
Stockholder to dispose of any remaining Shares that would not otherwise be
purchased by Parent upon the exercise of the Option; provided, further, that in
the event such transaction is not consummated within three months following the
time Parent makes such election, Parent shall, at the option of the Stockholder,
purchase any remaining Shares held by the Stockholder such that Parent and the
Stockholder each retain 50% of the Total Profit following such purchase. As used
herein, the term "Total Profit" shall mean the aggregate amount (before taxes)
of the net cash amounts and the fair market value (as reasonably determined by a
nationally recognized investment banking firm acceptable to each of Parent and
the Stockholder or, if one cannot be agreed upon, by Salomon Brothers, Inc.) of
all other forms of consideration received or to be received by Parent pursuant
to the sale of the aggregate number of Shares subject to the Option (or any
other securities into which such Shares are converted or exchanged) in any
Alternative Transaction, less the aggregate Exercise Price of all of such
Shares.
(e) In the event that Parent or the Purchaser pays a
price higher than $18.00 per share for Shares tendered into the Offer, the
Exercise Price shall be increased to equal such higher price.
(f) The Stockholder has granted the Option to the
Parent in order to induce Parent to enter into and consummate the transactions
contemplated by the Merger Agreement. Parent covenants and agrees that it will
perform its obligations under the Merger Agreement.
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The provisions of this Section 7(f) are intended both for the benefit of the
Stockholder and for the benefit of the Company and the other stockholders of the
Company, and may not be modified, waived or amended without the consent of the
Company.
SECTION 8. Certain Other Agreements.
(a) The Stockholder will notify the Purchaser
immediately if any proposals are received by, any information is requested from,
or any negotiations or discussions are sought to be initiated or continued with
the Stockholder or its officers, directors, employees, investment bankers,
attorneys, accountants or other agents, in each case in connection with any
Takeover Proposal or Takeover Proposal Interest (as such terms are defined in
the Merger Agreement) indicating, in connection with such notice, the name of
the person indicating such Takeover Proposal Interest and the terms and
conditions of any proposals or offers. The Stockholder agrees that it will
immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any Takeover Proposal Interest. The Stockholder agrees that it shall keep
Parent informed, on a current basis, of the status and terms of any Takeover
Proposal Interest. The Stockholder agrees that it will not, and will use its
best efforts to ensure that its officers, directors, employees, investment
bankers, attorneys, accountants and other agents do not, directly or indirectly:
(i) initiate, solicit or encourage, or take any action to facilitate the making
of, any offer or proposal which constitutes or is reasonably likely to lead to
any Takeover Proposal, (ii) enter into any agreement with respect to any
Takeover Proposal, or (iii) in the event of an unsolicited written Takeover
Proposal engage in negotiations or discussions with, or provide any information
or data to, any person (other than Parent, any of its affiliates or
representatives and except for information which has been previously publicly
disseminated by the Company) relating to any Takeover Proposal. The obligations
provided for in this Section 8(a) shall become effective immediately following
the execution and delivery of this Agreement by the parties hereto.
(b) The Stockholder hereby agrees, if requested by
Parent, to take all action necessary to waive
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compliance by the Company with the provisions of Section 1105 of the Indenture
relating to the timely issuance of a notice of redemption prior to the
Redemption Date (as defined in the Indenture) in connection with the Company's
redemption of the Secured Notes, pursuant to Section 106 of the Indenture;
provided, however, that Parent shall indemnify and hold the Stockholder harmless
in connection with the foregoing; provided, further that Parent's maximum
liability in connection therewith shall be $14,500.
SECTION 9. Further Assurances; Stockholder Capacity. (a) Each
of the Stockholder shall, upon request of Parent or the Purchaser, execute and
deliver any additional documents and take such further actions as may reasonably
be deemed by Parent or the Purchaser to be necessary or desirable to carry out
the provisions hereof and to vest the power to vote the Shares as contemplated
by Section 5 hereof in Parent.
(b) Nothing in this Agreement shall be construed to
prohibit any affiliate of the Stockholder who is a member of the Board of
Directors of the Company from taking any action solely in his capacity as a
member of the Board of Directors of the Company to the extent specifically
permitted by the Merger Agreement.
SECTION 10. Termination. This Agreement, and all rights and
obligations of the parties hereunder, shall terminate immediately upon the
earlier of (a) the date (the "Termination Date") that is six months following
the date upon which the Merger Agreement is terminated in accordance with its
terms or (b) the Effective Time (as defined in the Merger Agreement); provided,
however, that (i) in the event that an Option Notice is delivered prior to the
Termination Date, the provisions set forth in Section 7 shall survive any
termination of this Agreement, (ii) in the event that the Merger is consummated,
the provisions set forth in Section 11 shall survive any termination of this
Agreement.
SECTION 11. Expenses. Except as provided in Section 7 hereof,
all fees and expenses incurred by any one party hereto shall be borne by the
party incurring such fees and expenses.
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SECTION 12. Public Announcements. Each of Parent, the
Purchaser and the Stockholder agrees that it will not issue any press release or
otherwise make any public statement with respect to this Agreement or the
transactions contemplated hereby without the prior consent of the other party,
which consent shall not be unreasonably withheld or delayed; provided, however,
that such disclosure can be made without obtaining such prior consent if (i) the
disclosure is required by law or by obligations imposed pursuant to any listing
agreement with the Nasdaq National Market and (ii) the party making such
disclosure has first used its best efforts to consult with the other party about
the form and substance of such disclosure.
SECTION 13. Miscellaneous.
(a) Capitalized terms used and not otherwise defined
in this Agreement shall have the respective meanings assigned to such terms in
the Merger Agreement.
(b) All notices and other communications hereunder
shall be in writing and shall be deemed given upon (i) transmitter's
confirmation of a receipt of a facsimile transmission, (ii) confirmed delivery
by a standard overnight carrier or when delivered by hand or (iii) the
expiration of five business days after the day when mailed in the United States
by certified or registered mail, postage prepaid, addressed at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(A) if to the Parent or Purchaser, to:
c/o American Industrial Partners
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxx, Xx.
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with a copy to:
Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
and
(B) if to the Stockholder, to:
PPM America, Inc.
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: F. Xxxx Xxxxx, III
with a copy to:
Xxxxxxxx Kill & Olick, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: J. Xxxxxx Xxxx, Xx.
(c) The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(d) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
be considered one and the same agreement.
(e) This Agreement (including the Merger Agreement
and any other documents and instruments referred to herein) constitutes the
entire agreement, and supersedes all prior agreements and understandings,
whether written and oral, among the parties hereto with respect to the subject
matter hereof.
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(f) This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware without giving
effect to the principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by, the parties
and their respective successors and assigns, and the provisions of this
Agreement are not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
(h) If any term, provision, covenant or restriction
herein is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable or against its regulatory policy, the remainder
of the terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
(i) Each of the parties hereto acknowledges and
agrees that in the event of any breach of this Agreement, each non-breaching
party would be irreparably and immediately harmed and could not be made whole by
monetary damages. It is accordingly agreed that the parties hereto (i) will
waive, in any action for specific performance, the defense of adequacy of a
remedy at law and (ii) shall be entitled, in addition to any other remedy to
which they may be entitled at law or in equity, to compel specific performance
of this Agreement in any action instituted in any state or federal court sitting
in Wilmington, Delaware. The parties hereto consent to personal jurisdiction in
any such action brought in any state or federal court sitting in Wilmington,
Delaware and to service of process upon it in the manner set forth in Section
13(b) hereof.
(j) No amendment, modification or waiver in respect
of this Agreement shall be effective against any party unless it shall be in
writing and signed by such party.
16
IN WITNESS WHEREOF, Parent, the Purchaser and the Stockholder
has caused this Agreement to be duly executed and delivered as of the date first
written above.
AMERICAN INDUSTRIAL PARTNERS ACQUI-
SITION COMPANY, LLC
By /s/ Xxxxxxxx X. Xxxx, Xx.
________________________________
Name: Xxxxxxxx X. Xxxx, Xx.
Title:
BUCYRUS ACQUISITION CORP.
By /s/ Xxxxxxxx X. Xxxx, Xx.
________________________________
Name: Xxxxxxxx X. Xxxx, Xx.
Title:
XXXXXXX NATIONAL LIFE INSURANCE
COMPANY
By: PPM AMERICA, INC.
As Attorney-In-Fact
By /s/ F. Xxxx Xxxxx, III
________________________________
Name: F. Xxxx Xxxxx, III
Title: Senior Vice President
and General Counsel
17
