EXECUTION COPY
STOCK PURCHASE AGREEMENT
by and among
SDC PRAGUE, S.R.O.,
TEREX CORPORATION,
and
GP OMIKRON, S.R.O.
Dated as of
August 28, 2003
TABLE OF CONTENTS
Page
----
SECTION 1. Definitions and Usage..........................................1
SECTION 2. Sale of TATRA Shares...........................................1
2.1. The TATRA Purchase; Consideration..............................1
2.2. The Closing....................................................2
2.3. Actions at the Closing.........................................4
SECTION 3. Representations and Warranties of SDC Prague...................6
3.1. Organization and Good Standing; Power and Authority;
Qualifications.................................................6
3.2. Authorization of the Documents.................................6
3.3. Capitalization.................................................7
3.4. TATRA Shares...................................................7
3.5. Litigation.....................................................7
3.6. Governmental Investigations....................................7
3.7. Consents.......................................................7
3.8. Non-Contravention..............................................8
3.9. Brokers and Finders............................................8
3.10. Prohibited Payments............................................8
3.11. Acquisition of Terex Stock for Investment; Ability to
Evaluate and Bear Risk.........................................9
3.12. Information Supplied; Disclosure...............................9
SECTION 4. Representations and Warranties of Terex........................9
4.1. Organization and Qualification.................................9
4.2. Due Authorization.............................................10
4.3. Consents......................................................11
4.4. Brokers or Finders............................................11
SECTION 5. Pre-Closing Covenants.........................................11
5.1. Negative Agreements...........................................11
5.2. Disclosure....................................................12
5.3. Notification of Material Information..........................12
5.4. Cooperation...................................................12
5.5. Access to TATRA...............................................12
5.6. No Solicitation...............................................12
SECTION 6. Termination...................................................13
6.1. General Provision.............................................13
6.2. Termination by Terex or the Purchaser.........................14
6.3. Termination by SDC Prague.....................................14
6.4. Effect of Termination.........................................15
SECTION 7. [Intentionally omitted.]......................................15
SECTION 8. Survival of Representations, Warranties, Agreements and
Covenants, Etc............................................... 16
SECTION 9. Indemnification...............................................16
9.1. General Indemnification.......................................16
9.2. Indemnification Principles....................................17
9.3. Claim Notice..................................................17
SECTION 10. Remedies......................................................18
SECTION 11. Payment of Expenses...........................................19
SECTION 12. Further Assurances............................................19
SECTION 13. Legends.......................................................19
SECTION 14. Successors and Assigns........................................20
SECTION 15. Entire Agreement..............................................20
SECTION 16. Notices.......................................................20
SECTION 17. Amendments....................................................21
SECTION 18. Counterparts..................................................21
SECTION 19. Headings......................................................21
SECTION 20. Nouns and Pronouns............................................21
SECTION 21. Governing Law.................................................21
SECTION 22. Severability..................................................22
SECTION 23. Definitions...................................................22
SECTION 24. Currency......................................................25
Exhibits
--------
Exhibit A Contract on the Transfer of Securities
Exhibit B Form of Registration Rights Agreement
Exhibit C Form of Termination Agreement
INDEX OF DEFINED TERMS
Term Section
---- -------
$.........................................................................24
2001 Stock Purchase Agreement.......................................Recitals
Acquisition Proposal......................................................23
Affiliate.................................................................23
Agreement...........................................................Preamble
Business..................................................................23
Business Day..............................................................23
Capitalink Expenses.......................................................11
Cash Consideration................................................2.1(b)(ii)
Claim Notice.............................................................9.3
Closing...............................................................2.2(a)
Closing Date..........................................................2.2(a)
Closing Price.............................................................23
Company.............................................................Recitals
Competitive Financing Transaction.....................................6.3(c)
Consideration.........................................................2.1(b)
Contract Shares...........................................................23
Czech Competition Office..........................................2.2(b)(ii)
CZK.......................................................................24
Encumbrance...............................................................23
Exchange Act..............................................................23
Executive.........................................................2.3(a)(ii)
Financing Transaction.................................................6.3(b)
Governmental Entity.......................................................23
Guarantee.................................................................23
Indemnification Agreement.................................................23
Intention Notice......................................................6.3(d)
Law.......................................................................23
Legal Fees................................................................11
Loan Agreement............................................................23
Losses...................................................................9.2
Material Adverse Change...................................................23
Material Adverse Effect...................................................23
Note......................................................................23
NYSE......................................................................23
Person....................................................................23
Pledge Agreements.........................................................23
Purchase Price......................................................Recitals
Purchaser...........................................................Preamble
Purchaser Indemnitee................................................9.1. 9.1
Registration Rights Agreement....................................2.3(a)(iii)
Registration Statement..................................................3.12
SDC Prague..........................................................Preamble
Securities Act............................................................23
Securities Center.........................................................23
Subsidiary................................................................23
Superior Proposal.........................................................23
TATRA...............................................................Recitals
TATRA Loan Agreement......................................................23
TATRA Purchase......................................................Recitals
TATRA Share Transfer..................................................2.1(a)
TATRA Shares........................................................Recitals
Taxes.....................................................................23
Terex Competitor..........................................................23
Terex Review Period...................................................6.3(d)
Terex Stock......................................................2.1(b)(iii)
Termination Agreement.............................................2.3(a)(iv)
Trading Day...............................................................23
Transaction Documents.....................................................23
Voting Securities.........................................................23
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of August
28, 2003, by and among SDC Prague, S.R.O., a company organized under the
laws of the Czech Republic ("SDC Prague"), Terex Corporation, a Delaware
corporation ("Terex") and GP Omikron, S.R.O., a company organized under the
laws of the Czech Republic (the "Purchaser").
W I T N E S S E T H:
WHEREAS, pursuant to a Stock Purchase Agreement, dated as of
December 27, 2001, by and among SDC International, Inc., a Delaware
corporation (the "Company"), SDC Prague and Terex (the "2001 Stock Purchase
Agreement"), the Company sold to Terex 8,407,161 Contract Shares
representing 40.61% of the issued and outstanding equity interest and
registered capital of TATRA a.s., a joint stock company established under
the laws of the Czech Republic ("TATRA");
WHEREAS, the Purchaser is a wholly-owned subsidiary of Terex; and
WHEREAS, SDC Prague desires to sell to the Purchaser, and the
Purchaser desires to purchase from SDC Prague (the "TATRA Purchase"),
10,555,738 Contract Shares (the "TATRA Shares"), consisting of 2,683,428
Contract Shares, ISIN CS 0005018456 and 7,872,310 Contract Shares, ISIN
770000001873, which collectively represent 51.00% of the issued and
outstanding equity interest and registered capital of TATRA, for an
aggregate purchase price of $4,789,002 (the "Purchase Price").
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties and agreements herein set forth, the parties
hereto agree as follows:
SECTION 1. Definitions and Usage. Unless the context shall
otherwise require, terms used herein and not otherwise defined have the
meanings assigned thereto in Section 23.
SECTION 2. Sale of TATRA Shares.
--------------------
2.1. The TATRA Purchase; Consideration
---------------------------------
(a) At the Closing, SDC Prague shall sell, assign, transfer,
deliver and convey to the Purchaser and the Purchaser shall purchase and
accept from SDC Prague the TATRA Shares registered in the name of the
Purchaser free and clear of all Encumbrances pursuant to the Contract on
the Transfer of Securities attached as Exhibit A hereto (the "TATRA Share
Transfer").
(b) In consideration for the TATRA Shares, at the Closing
the Purchaser shall pay the Purchase Price by delivering, or causing to be
delivered, to SDC Prague the following (collectively, the "Consideration"):
(i) 208,591 shares of Terex common stock (the "Terex
Stock");
(ii) an amount in immediately available funds equal to
$200,000; and
(iii) an amount in immediately available funds equal to
the amount, if any, by which the product of (x) 108,591 times (y) the
Closing Price on the Trading Day immediately prior to the Closing Date (as
defined below) is less than $2,389,000 (collectively, the sum of the
amounts described in clauses (ii) and (iii), the "Cash Consideration").
2.2. The Closing.
-----------
(a) Closing. The closing of the TATRA Purchase (the
"Closing") shall take place at 10:00 a.m. New York time on the Business Day
following the date on which the closing conditions set forth in Section
2.2(b) and (c) have been met, or waived, in accordance with this Agreement,
or on such other date or at such other time as is agreed to in writing by
the parties (such date, the "Closing Date"). The Closing shall take place
at the offices of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(b) Terex/Purchaser's Closing Conditions. The obligation of
Terex and the Purchaser to consummate the transactions contemplated herein
at the Closing are subject to and conditioned upon (unless waived by Terex
and the Purchaser):
(i) The registration of the TATRA Shares in the name of
the Purchaser with the Securities Center, together with the satisfaction of
such other conditions as may be imposed by Czech law or the rules and
regulations of the Securities Center in order to consummate and evidence
the consummation of the transactions contemplated by this Agreement, and
the receipt of evidence, in a form reasonably satisfactory to Terex and the
Purchaser, of such registration and the satisfaction of such other
conditions.
(ii) (A) The Office of the Protection of the Economic
Competition of the Czech Republic (the "Czech Competition Office") shall
have issued a final decision (pravomocne rozhodnuti) permitting the TATRA
Share Transfer, (B) the relevant waiting period with regard to the Czech
Competition Office shall have expired without the Czech Competition Office
prohibiting the TATRA Share Transfer, or (C) the Czech Competition Office
shall have decided that the TATRA Share Transfer is not subject to its
approval and the Purchaser shall have received a letter confirming that no
such approval is required to carryout the TATRA Share Transfer.
(iii) The representations and warranties of SDC Prague
in Section 3 hereof shall be true and correct when made and at and as of
the Closing Date with the same effect as though such representations and
warranties had been made at and as of such date except (a) that any such
representations and warranties that are given as of a specified date and
relate solely to a specified date or period shall be true and correct only
as of such date or period, and (b) to the extent any breach thereof,
individually or when aggregated with all such breaches, has not had and is
not reasonably likely to have a Material Adverse Effect on either the
Company or SDC Prague. For purposes of this Section 2.2(b)(iii), the truth
or correctness of any representation or warranty of SDC Prague in Section 3
hereof shall be determined without regard to any materiality or "Material
Adverse Effect" qualification set forth in such representation and
warranty. Terex and the Purchaser shall have received at Closing a
certificate to the foregoing effect, dated the Closing Date and signed by
the Executive (as defined below) of SDC Prague.
(iv) The representations and warranties of the Company
in Section 2 of the Indemnification Agreement shall be true and correct
when made and at and as of the Closing Date with the same effect as though
such representations and warranties had been made at and as of such date
except (a) that any such representations and warranties that are given as
of a specified date and relate solely to a specified date or period shall
be true and correct only as of such date or period, and (b) to the extent
any breach thereof, individually or when aggregated with all such breaches,
has not had and is not reasonably likely to have a Material Adverse Effect
on either the Company or SDC Prague. For purposes of this Section
2.2(b)(iv), the truth or correctness of any representation or warranty of
the Company in Section 2 of the Indemnification Agreement shall be
determined without regard to any materiality or "Material Adverse Effect"
qualification set forth in such representation and warranty. Terex and the
Purchaser shall have received at Closing a certificate to the foregoing
effect, dated the Closing Date and signed by the Chief Executive Officer of
the Company.
(v) SDC Prague shall have performed, in all material
respects, all agreements, obligations and duties to be performed by it on
or before the Closing pursuant to this Agreement, including those set forth
in Section 5.
(vi) There shall be no claim, litigation, arbitration,
investigation or hearing, pending, or, to the knowledge of SDC Prague or
the Company, threatened, against TATRA by or before any court or any
Governmental Entity, contesting the validity of issuance, or ownership by
SDC Prague, of the TATRA Shares or the transactions contemplated by this
Agreement.
(c) SDC Prague's Closing Conditions. The obligation of SDC
Prague to consummate the transactions contemplated herein at the Closing
are subject to and conditioned upon (unless waived by SDC Prague):
(i) The representations and warranties of Terex in
Section 4 hereof shall be true and correct when made and at and as of the
Closing Date with the same effect as though such representations and
warranties had been made at and as of such date except (a) that any such
representations and warranties that are given as of a specified date and
relate solely to a specified date or period shall be true and correct only
as of such date or period, and (b) to the extent any breach thereof,
individually or when aggregated with all such breaches, has not had and is
not reasonably likely to have a Material Adverse Effect on Terex or the
Purchaser. For purposes of this Section 2.2(c)(i), the truth or correctness
of any representation or warranty of Terex in Section 4 hereof shall be
determined without regard to any materiality or "Material Adverse Effect"
qualification set forth in such representation and warranty. SDC Prague
shall have received at Closing a certificate to the foregoing effect, dated
the Closing Date and signed by a senior executive officer of each of the
Purchaser and Terex.
(ii) Terex and the Purchaser shall each have performed,
in all material respects, all agreements, obligations and duties to be
performed by it on or before the Closing pursuant to this Agreement,
including those set forth in Section 5.
(iii) (A) The Czech Competition Office shall have issued
a final decision (pravomcne rozhodnuti) permitting the TATRA Share
Transfer, (B) the relevant waiting period with regard to the Czech
Competition Office shall have expired without the Czech Competition Office
prohibiting the TATRA Share Transfer, or (C) the Czech Competition Office
shall have decided that the TATRA Share Transfer is not subject to its
approval and the Purchaser shall have received a letter confirming that no
such approval is required to carryout the TATRA Share Transfer.
2.3. Actions at the Closing.
----------------------
(a) Simultaneously with, or prior to, the Closing, SDC
Prague shall cause the following actions to occur:
(i) SDC Prague shall transfer to Purchaser or its
nominee the TATRA Shares in a manner consistent with Czech law and the
rules and regulations of the Securities Center against receipt at the
Closing by SDC Prague from Purchaser of the Consideration.
(ii) SDC Prague shall deliver to the Purchaser and Terex
a certificate executed by its executive (jednatel) (the "Executive"), dated
as of the Closing Date, certifying the following matters: (A) resolutions
of the Sole Participant of SDC Prague authorizing the execution, delivery
and performance by SDC Prague of each of the Transaction Documents to which
it is a party, and any other agreement entered into or instruments
delivered by SDC Prague in connection herewith, (B) copies of each
governmental or third party consent, approval or filing required to be
obtained or made by SDC Prague and/or the Company in order to consummate
the transactions contemplated by this Agreement, (C) incumbency matters,
(D) a copy of the Founding Deed and a copy of any other organizational
documents of SDC Prague and (E) that the representations and warranties of
SDC Prague contained in this Agreement are true and correct as of the
Closing Date and that SDC Prague has performed, satisfied, and complied
with all covenants, agreements and conditions required by this Agreement to
be performed, satisfied or complied with by it at or before the Closing.
(iii) SDC Prague shall deliver to Terex a duly executed
copy of the registration rights agreement substantially in the form of
Exhibit B hereto (the "Registration Rights Agreement").
(iv) SDC Prague shall deliver to Terex a duly executed
copy of the termination agreement substantially in the form of Exhibit C
hereto, which shall terminate the 2001 Stock Purchase Agreement, the Loan
Agreement, the Guarantees, and the Pledge Agreements (the "Termination
Agreement").
(v) SDC Prague shall deliver such additional documents
and certificates required to be delivered by SDC Prague at or prior to the
Closing Date pursuant to this Agreement.
(b) Simultaneously with, or prior to, the Closing, Terex
shall cause the following actions to occur:
(i) Terex shall deliver to SDC Prague stock certificates
for Terex Stock registered in the name of SDC Prague that represents the
Terex Stock required to be delivered at the Closing pursuant to Section
2.1(b)(i) hereof.
(ii) Terex shall deliver to SDC Prague the Cash
Consideration by wire transfer of immediately available funds to the
accounts specified in advance by SDC Prague.
(iii) Terex shall deliver to the Company the Notes, each
marked "Cancelled."
(iv) Terex shall deliver to SDC Prague a copy of the
Registration Rights Agreement duly executed by Terex.
(v) Terex shall deliver to SDC Prague a copy of the
Termination Agreement duly executed by Terex.
(vi) Terex shall deliver to SDC Prague a certificate
executed by its secretary, dated as of the Closing Date, certifying the
following matters: (A) resolutions of the board of directors of Terex
authorizing the execution, delivery and performance by Terex of each of the
Transaction Documents to which it is a party, and any other agreement
entered into or instruments delivered by Terex in connection herewith, (B)
copies of each governmental or third party consent, approval or filing
required to be obtained or made by Terex and/or the Purchaser in order to
consummate the transactions contemplated by this Agreement, (C) incumbency
matters, (D) a copy of the Certificate of Incorporation and a copy of the
By-Laws of Terex and (E) that the representations and warranties of Terex
contained in this Agreement are true and correct as of the Closing Date and
that Terex has performed, satisfied, and complied with all covenants,
agreements and conditions required by this Agreement to be performed,
satisfied or complied with by it at or before the Closing.
(vii) Terex shall deliver such additional documents and
certificates required to be delivered by Terex at or prior to the Closing
Date pursuant to this Agreement.
SECTION 3. Representations and Warranties of SDC Prague. SDC
Prague represents and warrants to Terex and the Purchaser as follows:
3.1. Organization and Good Standing; Power and Authority;
Qualifications. SDC Prague (x) is a company duly established and validly
existing under the laws of the Czech Republic and (y) has the full power
and authority to conduct its business and to own or lease and operate its
properties as and in the places where such business is now conducted and
such properties are now owned or leased and operated, with such exceptions
as, individually or in the aggregate, have not had and are not reasonably
likely to have a Material Adverse Effect on SDC Prague. SDC Prague is
qualified or otherwise authorized to do business as a foreign corporation
and is in good standing in each jurisdiction in which the character of the
properties owned or held by it under lease or license or SDC Prague's
business, as presently conducted, requires such qualification or
authorization, except where the failure so to qualify or be authorized,
individually or in the aggregate, has not had and is not reasonably likely
to have a Material Adverse Effect on SDC Prague. TATRA (x) is a joint-stock
company duly established and validly existing under, and is in good
standing under, the laws of the Czech Republic and (y) has the full power
and authority to conduct its business and to own or lease and operate its
properties as and in the places where such business is now conducted and
such properties are now owned or leased and operated, with such exceptions
as, individually or in the aggregate, have not had and are not reasonably
likely to have a Material Adverse Effect on TATRA. TATRA is qualified or
otherwise authorized to do business as a foreign corporation and is in good
standing in each jurisdiction in which the character of the properties
owned or held by it under lease or license or TATRA's business, as
presently conducted, requires such qualification or authorization, except
where the failure so to qualify or be authorized, individually or in the
aggregate, has not had and is not reasonably likely to have a Material
Adverse Effect on TATRA.
3.2. Authorization of the Documents. SDC Prague has all right,
power and authority to enter into the Transaction Documents to which it is
a party and to consummate the transactions contemplated thereby. The
execution and delivery of each of the Transaction Documents to which it is
a party and the sale of the TATRA Shares by SDC Prague and compliance by
SDC Prague with all the provisions of each of the Transaction Documents to
which it is a party and consummation by SDC Prague of the transactions
contemplated thereby (i) are within the power and authority of SDC Prague;
and (ii) have been authorized by all requisite proceedings on the part of
SDC Prague, including the approval or consent of the stockholders of SDC
Prague. This Agreement has been duly executed and delivered by SDC Prague
and constitutes the valid and binding agreement of SDC Prague, enforceable
in accordance with its terms, except that (i) such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar Laws now or hereafter in effect relating to creditors' rights, and
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
3.3. Capitalization. Immediately after the Closing, the Purchaser
shall own, in the aggregate, at least 51% of the registered capital of
TATRA, and the voting power of the TATRA Shares shall represent, in the
aggregate, no less than 51% of the total number of votes able to be cast on
any matter by any Voting Securities of TATRA immediately after the Closing.
3.4. TATRA Shares. The registered capital of TATRA consists of
CZK 2,069,752,600, divided into 4,418,055 bearer shares with a nominal
value of CZK 100 (ISIN CS 0005018456), and 16,279,471 bearer shares with a
nominal value of CZK 100 (ISIN 770000001873). Except for the pledge of the
TATRA Shares pursuant to the Pledge Agreement, which Pledge Agreement shall
be terminated simultaneously with the Closing, all of the TATRA Shares are
owned beneficially and of record by SDC Prague, free and clear of any
Encumbrances. All of the TATRA Shares have been duly authorized and validly
issued and are fully paid and nonassessable. Except for rights created
pursuant to this Agreement and except for any agreement entered into by
Terex, there are no outstanding options, warrants, securities, rights
(preemptive or other), subscriptions, calls, or other agreements of any
kind that give any Person the right to purchase or otherwise receive any
shares of TATRA capital stock, including the TATRA Shares. Except for any
voting arrangements entered into by Terex, there are no voting arrangements
with respect to any shares of TATRA capital stock, including the TATRA
Shares and there are no restrictions on SDC Prague's ability to transfer
the TATRA Shares to Purchaser at the Closing free and clear of any
Encumbrances. SDC Prague owns the TATRA Shares and upon delivery of the
Consideration, Purchaser will acquire good and marketable title to the
TATRA Shares, free and clear of any Encumbrances.
3.5. Litigation. Except as set forth in Schedule 3.5 hereto,
there is no action, suit, investigation or proceeding pending or, to the
knowledge of SDC Prague, threatened against the Company or its Subsidiaries
or any of their properties or assets by or before any court, arbitrator or
other Governmental Entity.
3.6. Governmental Investigations. To the knowledge of SDC Prague,
no Governmental Entity has advised TATRA, the Company or SDC Prague of any
intention to conduct any audit, investigation or other review with respect
to TATRA, the Company or SDC Prague that would have a Material Adverse
Effect on the Company, SDC Prague, TATRA, its Business or the legal acts
contemplated hereby.
3.7. Consents. Except as set forth on Schedule 3.7, neither the
Company nor SDC Prague is required to obtain any consent, approval or
authorization of, or to make any declaration or filing with, any
Governmental Entity or any other Person as a condition to or in connection
with the valid execution and delivery of any of the Transaction Documents
to which the Company or SDC Prague is a party or the valid offer, sale or
delivery of the TATRA Shares, or the performance by the Company or SDC
Prague of their respective obligations in respect of any of the Transaction
Documents to which the Company or SDC Prague is a party.
3.8. Non-Contravention. The execution, delivery and performance
of the Transaction Documents to which it is a party by each of the Company
and SDC Prague does not and will not (a) conflict with or violate either of
their organizational documents or agreements, (b) conflict with or violate
any Law or judgment applicable to the Company or SDC Prague, (c) result in
the creation or imposition of any Encumbrance on any of the TATRA Shares or
(d) constitute a default (or an event which, with notice or lapse of time
or both, would constitute a default) under, or give rise to any right of
termination, cancellation, modification or acceleration of any right or
obligation of the Company or SDC Prague or a loss of any benefit to which
the Company or SDC Prague is entitled under any note, bond, mortgage,
indenture, deed of trust, license, agreement, lease, permit, franchise or
other instrument or obligation to which the Company or SDC Prague is a
party or by which the Company or SDC Prague or their respective properties
are bound or affected, except, in the case of clauses (b), (c) or (d) of
this Section 3.8 where the violation, conflict, breach, default,
acceleration, termination, modification, creation or imposition, would not,
individually or in the aggregate, have a Material Adverse Effect on the
Company or SDC Prague.
3.9. Brokers and Finders. Except as set forth in Schedule 3.9, no
agent, broker, investment banker or other Person is or will be entitled to
any broker's fee or any other commission or similar fee from the Company or
SDC Prague or any of their Subsidiaries in connection with any of the
transactions contemplated by this Agreement. The Company shall pay all
amounts set forth in Schedule 3.9.
3.10. Prohibited Payments. Neither the Company nor SDC Prague nor
any of their Subsidiaries has, directly or indirectly, (a) made or agreed
to make any contribution, payment or gift to any government official,
employee or agent where either the contribution, payment or gift or the
purpose thereof was illegal under the Laws of any federal, state, local or
foreign jurisdiction, (b) established or maintained any unrecorded fund
asset for any purpose or made any false entries on its records for any
reason, (c) made or agreed to make any contribution, or reimbursed any
political gift or contribution made by any other Person, to any candidate
for federal, state, local or foreign public office or (d) paid or delivered
any fee, commission or any other sum of money or item of property however
characterized to any finder, agent, government official or other party, in
the United States or any other country, which in any manner relates to the
assets, business or operations of the Company or SDC Prague or any of their
Subsidiaries, which SDC Prague knows or has reason to believe to have been
illegal under any federal, state or local Laws (or any rules or regulations
thereunder) of the United States or any other country having jurisdiction.
3.11. Acquisition of Terex Stock for Investment; Ability to
Evaluate and Bear Risk.
(a) SDC Prague is acquiring the Terex Stock for investment
and not with a view toward, or for sale in connection with, any
distribution in violation of the 1933 Act and has no present intention of
selling or engaging in any public distribution of the same except pursuant
to a registration or exemption pursuant to the 1933 Act. SDC Prague
acknowledges and agrees that the Terex Stock may not be sold, transferred,
offered for sale, pledged, hypothecated or otherwise disposed of without
registration under the 1933 Act and any applicable securities Laws, except
pursuant to an exemption from such registration under the 1933 Act and such
Laws and subject to the limitations and conditions set forth in Section 3
of the Registration Rights Agreement.
(b) SDC Prague is an "accredited investor" within the
meaning of Rule 501 of Regulation D under the 1933 Act, as presently in
effect.
(c) SDC Prague (i) is able to bear the economic risk of
holding the Terex Stock for an indefinite period, (ii) can afford to suffer
the complete loss of its investment in the Terex Stock, and (iii) has
knowledge and experience in financial and business matters such that SDC
Prague is capable of evaluating the risks of the investment in the Terex
Stock.
3.12. Information Supplied; Disclosure. None of the information
supplied or to be supplied by SDC Prague in writing specifically for
inclusion or incorporation by reference in the Registration Statement on
Form S-3 to be filed with the SEC by Terex following the Closing in
connection with the resale of shares of Terex Stock issued under this
Agreement and pursuant to the terms of the Registration Rights Agreement
(the "Registration Statement") will, at the time the Registration Statement
becomes effective under the 1933 Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
SECTION 4. Representations and Warranties of Terex. Terex
represents and warrants to SDC Prague as of the date hereof as follows.
4.1. Organization and Qualification. Terex (x) is a company duly
established and validly existing under, and is in good standing under, the
laws of Delaware and (y) has the full power and authority to conduct its
business and to own or lease and operate its properties as and in the
places where such business is now conducted and such properties are now
owned or leased and operated, with such exceptions as, individually or in
the aggregate, have not had and are not reasonably likely to have a
Material Adverse Effect on Terex. Terex is qualified or otherwise
authorized to do business as a foreign corporation and is in good standing
in each jurisdiction in which the character of the properties owned or held
by it under lease or license or Terex's business, as presently conducted,
requires such qualification or authorization, except where the failure so
to qualify or be authorized, individually or in the aggregate, has not had
and is not reasonably likely to have a Material Adverse Effect on Terex.
The Purchaser (x) is a company duly established and validly existing under
the laws of the Czech Republic and (y) has the full power and authority to
conduct its business and to own or lease and operate its properties as and
in the places where such business is now conducted and such properties are
now owned or leased and operated, with such exceptions as, individually or
in the aggregate, have not had and are not reasonably likely to have a
Material Adverse Effect on the Purchaser. The Purchaser is qualified or
otherwise authorized to do business as a foreign corporation and is in good
standing in each jurisdiction in which the character of the properties
owned or held by it under lease or license or the Purchaser's business, as
presently conducted, requires such qualification or authorization, except
where the failure so to qualify or be authorized, individually or in the
aggregate, has not had and is not reasonably likely to have a Material
Adverse Effect on the Purchaser.
4.2. Due Authorization.
-----------------
(a) Terex has all right, power and authority to enter into
the Transaction Documents to which it is a party and to consummate the
transactions contemplated thereby. The execution and delivery of the
Transaction Documents to which it is a party by Terex and the compliance by
Terex with all of the provisions of the Transaction Documents to which it
is a party and consummation by Terex of the transactions contemplated
thereby have been duly authorized by all requisite corporate proceedings on
the part of Terex. The Transaction Documents to which Terex is a party have
been duly executed and delivered by Terex and constitute the valid and
binding agreements of Terex enforceable in accordance with their terms,
except that (i) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar Laws now or hereafter in effect
relating to creditors' rights, and (ii) the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(b) The Purchaser has all right, power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and compliance by the
Purchaser with all the provisions of this Agreement and consummation by the
Purchaser of the transactions contemplated hereby (i) are within the power
and authority of the Purchaser; and (ii) have been authorized by all
requisite proceedings on the part of the Purchaser (including the approval
or consent of the stockholders of the Purchaser). This Agreement has been
duly executed and delivered by the Purchaser and constitutes the valid and
binding agreement of the Purchaser, enforceable in accordance with its
terms, except that (i) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar Laws now or
hereafter in effect relating to creditors' rights, and (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
4.3. Consents. Except as set forth on Schedule 4.3 or as may be
required by Czech Law or the rules and regulations of the Securities
Center, neither Terex nor the Purchaser is required to obtain any consent,
approval or authorization of, or to make any declaration or filing with,
any Governmental Entity or any other Person as a condition to or in
connection with the valid execution and delivery of this Agreement or the
other Transaction Documents to which Terex or the Purchaser is a party or
the performance by Terex or the Purchaser of their respective obligations
in respect hereof and thereof except for such consents, approvals or
authorizations as may be required under applicable federal and state
securities Laws and except for any approvals required by the Czech Office
for Protection of Economic Protection.
4.4. Brokers or Finders. No agent, broker, investment banker or
other Person is or will be entitled to any broker's fee or any other
commission or similar fee from Terex or the Purchaser in connection with
any of the transactions contemplated by the Transaction Documents to which
Terex or the Purchaser is a party for which the Company or SDC Prague will
be responsible.
SECTION 5. Pre-Closing Covenants.
---------------------
5.1. Negative Agreements. Before the Closing, except as otherwise
provided or contemplated herein, or as Terex and SDC Prague may otherwise
consent in writing, SDC Prague shall use its best efforts as may be
reasonably required to cause TATRA not to:
(a) declare, pay or set aside for payment any dividend or
other amounts or benefits in respect of any of its shares;
(b) directly or indirectly redeem, purchase or otherwise
acquire any shares of its capital stock;
(c) issue any shares or become a party to any subscriptions,
options, rights or commitments of any nature related to the shares of
TATRA;
(d) merge or consolidate with, or acquire all or a majority
share of the shares or assets of, any other entity;
(e) substantially change the character of the Business or
operate other than in the ordinary course of business and in the manner
consistent with past practices;
(f) execute without prior review of Terex and the Purchaser
any contract or arrangement which could have a material effect on TATRA's
future business operations; or
(g) amend the Founding Deed of TATRA.
5.2. Disclosure. Prior to the Closing Date, SDC Prague on the one
hand, and Terex and the Purchaser on the other hand, shall promptly notify
each other upon becoming aware of any material breach of any
representation, warranty or covenant contained in this Agreement or the
occurrence of any event that would cause any representation or warranty of
such party contained in this Agreement, to no longer be true and correct in
any material respect or any covenant of such party contained in this
Agreement, to be incorrect or not be complied with.
5.3. Notification of Material Information. If prior to the
Closing Date, SDC Prague receives any information with respect to TATRA
which could reasonably be expected to have a material effect on the
decision of the Purchaser to acquire the TATRA Shares hereunder (including,
without limitation, any information with respect to any litigation related
to TATRA's trademarks or trade names) it shall, without undue delay,
disclose such information to Terex and the Purchaser.
5.4. Cooperation.
-----------
(a) Prior to the Closing, SDC Prague on the one hand, and
Terex and the Purchaser on the other hand, each shall, and SDC Prague shall
use its reasonable best efforts to cause TATRA to, (i) cooperate and
consult with each other in determining which consents, approvals,
authorizations or waivers are required or permitted to be obtained prior to
the Closing Date from Governmental Entities or other Persons in connection
with the execution of this Agreement and the consummation of the
transactions contemplated hereby, and (ii) use their reasonable efforts to
take, or cause to be taken, all other action and do, or cause to be done,
all other things necessary, proper or appropriate to consummate and make
effective the legal acts contemplated by this Agreement.
(b) Subject to the terms and conditions of this Agreement,
SDC Prague on the one hand, and Terex and the Purchaser on the other hand,
shall use their reasonable best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper or
desirable under applicable Laws and agreements, to consummate as promptly
as practicable the transactions contemplated by this Agreement, and each
shall cooperate fully with the other parties hereto to that end.
5.5. Access to TATRA. Prior to the Closing, SDC Prague shall use
its reasonable efforts to cause TATRA to allow reasonable access to TATRA's
premises and persons for Terex, Purchaser, their advisors and consultants
during normal working hours.
5.6. No Solicitation.
---------------
(a) SDC Prague shall, and shall cause its directors,
officers, employees, agents, advisors and other representatives to, cease
discussions or negotiations, if any, with any parties other than Terex or
the Purchaser conducted prior to the date hereof with respect to any
Acquisition Proposal. SDC Prague shall not, and shall cause its directors,
officers, employees, agents, advisors or other representatives not to (i)
solicit or initiate the making of any proposal that constitutes an
Acquisition Proposal or (ii) participate in any discussions or negotiations
regarding an Acquisition Proposal; provided, however, notwithstanding the
prohibition set forth in clause (ii) above, if either the Executive of SDC
Prague or the Board of Directors of the Company determines in good faith,
after consultation with its respective outside counsel and financial
advisor(s), that the failure to participate in discussions or negotiations
regarding an Acquisition Proposal would be reasonably likely to constitute
a breach of its fiduciary duties to its respective stockholders or
creditors under applicable Law, then SDC Prague, subject to compliance with
Section 5.6(b), may (x) respond to a bona fide Acquisition Proposal that
the Executive of SDC Prague reasonably and in good faith determines
constitutes a Superior Proposal, (y) furnish to the Person making such
Acquisition Proposal non-public information with respect to the Company,
SDC Prague or TATRA pursuant to a confidentiality agreement, and (z)
participate in negotiations regarding such Acquisition Proposal; provided,
further, that SDC Prague shall have complied with its obligations under
this Section 5.6 and the Company shall have complied with its obligations
under Section 7 of the Indemnification Agreement.
(b) SDC Prague shall promptly advise Terex of any
Acquisition Proposal and the material terms and conditions of each such
Acquisition Proposal. SDC Prague shall, to the extent reasonably
practicable, keep Terex informed on the status and details (including
amendments or proposed amendments) of any such Acquisition Proposal.
(c) Nothing contained in this Section 5.6 shall prohibit SDC
Prague from making any disclosure to SDC Prague's stockholders or creditors
required under any applicable Law.
SECTION 6. Termination.
-----------
6.1. General Provision. This Agreement may be terminated prior to
the Closing Date:
(a) at any time, upon the mutual written consent of each of
the parties hereto;
(b) by Terex or the Purchaser if the Closing Date shall not
have occurred by September 30, 2003; provided that Terex and the Purchaser
shall not have materially breached their obligations hereunder; or
(c) by SDC Prague if the Closing Date shall not have
occurred by September 30, 2003; provided that SDC Prague shall not have
materially breached its obligations hereunder.
6.2. Termination by Terex or the Purchaser. Prior to the Closing
Date, Terex or the Purchaser may terminate this Agreement with immediate
effect by giving written notice to SDC Prague at any time in the event (i)
SDC Prague is in material breach of any of its obligations hereunder or the
Company is in material breach of any of its obligations under the
Indemnification Agreement; (ii) Terex or the Purchaser has notified SDC
Prague of such breach; and (iii) such breach has continued without cure for
a period of 15 consecutive days after written notice of such breach has
been provided to SDC Prague.
6.3. Termination by SDC Prague. Prior to the Closing Date, SDC
Prague may terminate this Agreement with immediate effect by giving written
notice to Terex and the Purchaser at any time in the event:
(a) (i) Terex and the Purchaser are in material breach of
any of their obligations hereunder; (ii) SDC Prague has notified Terex and
the Purchaser of such breach; and (iii) such breach has continued without
cure for a period of 15 consecutive days after written notice of such
breach has been provided to Terex and the Purchaser;
(b) the Company, SDC Prague and/or TATRA consummates, prior
to the Closing, a transaction or series of related transactions for the
provision of financing by a third party which is not a Terex Competitor,
the proceeds of which that are received by the Company, SDC Prague and/or
TATRA are equal to or greater than $10,000,000 in the aggregate (a
"Financing Transaction"); provided that (i) at least $10,000,000 of the
proceeds of any such Financing Transaction are used solely for the
provision of working capital to TATRA and (ii) the terms of any such
Financing Transaction are permitted by, and comply in all respects with,
the terms of each of the Loan Agreement and the TATRA Loan Agreement,
respectively;
(c) the Company, SDC Prague and/or TATRA consummates, prior
to the Closing, a transaction or series of related transactions for the
provision of financing by a third party which is a Terex Competitor, the
proceeds of which that are received by the Company, SDC Prague and/or TATRA
are equal to or greater than $10,000,000 in the aggregate (a "Competitive
Financing Transaction"); provided that (i) at least $10,000,000 of the
proceeds of any such Financing Transaction are used solely for the
provision of working capital to TATRA and (ii) the terms of any such
Competitive Financing Transaction are permitted by, and comply in all
respects with, the terms of each of the Loan Agreement and the TATRA Loan
Agreement, respectively;
(d) if, in connection with a Superior Proposal, either the
Executive of SDC Prague or the Board of Directors of the Company
determines, in its good faith judgment, after consultation with its
respective outside legal counsel and financial advisor(s), that failure to
do so would constitute a breach of its fiduciary duties to its respective
stockholders or creditors under applicable Law; provided, however, that,
(i) prior to termination of this Agreement under this Section 6.3(d), SDC
Prague shall have notified Terex in writing of SDC Prague's intention to
terminate this Agreement and of SDC Prague's and/or the Company's intention
to enter into an agreement with respect to a Superior Proposal
(collectively, the "Intention Notice"), which such Intention Notice shall
be delivered to Terex at least three Business Days before such intended
termination (the "Terex Review Period"), and shall have provided Terex with
the proposed definitive documentation for such transaction and (ii) during
the Terex Review Period SDC Prague shall have afforded Terex and Purchaser
a reasonable opportunity to make such adjustments to the terms and
conditions of this Agreement as would enable SDC Prague to proceed with the
transactions contemplated hereby in a manner consistent with its fiduciary
duties to its stockholders or creditors. The Intention Notice (including
SDC Prague's right to terminate this Agreement) shall not be effective if
Terex and Purchaser submit to SDC Prague during the Terex Review Period a
legally binding, executed offer to enter into an amendment to this
Agreement within such Terex Review Period unless the Executive of SDC
Prague or the Board of Directors of the Company shall have determined in
good faith, after consultation with its respective outside legal counsel
and financial advisor(s), that the amendment to this Agreement that Terex
and Purchaser have agreed to enter into during such Terex Review Period is
not at least as favorable to SDC Prague's or the Company's stockholders or
creditors, as applicable, as the Superior Proposal.
6.4. Effect of Termination. If this Agreement is terminated
pursuant to this Section 6, all further obligations of the parties
hereunder shall terminate and no damages or other compensation shall be
payable by any party, except that nothing in this Section 6.4 shall relieve
any party hereto of any liability pursuant to this Section 6.4 or for any
willful breach of this Agreement that occurred prior to the termination of
this Agreement.
(a) In the event of a termination by SDC Prague pursuant to
Sections 6.3(b), 6.3(c) or 6.3(d) hereof, SDC Prague shall pay in cash to
Terex, simultaneous with any such termination, (i) all accrued and unpaid
interest owed by the Company, SDC Prague and/or TATRA as of the date of
such termination, in each case, pursuant to the Loan Agreement and the
TATRA Loan Agreement and (ii) unpaid fees and expenses in the amount of
$626,468.29.
(b) In the event of a termination by SDC Prague pursuant to
Sections 6.3(c) or 6.3(d) hereof, SDC Prague shall pay in cash to Terex,
simultaneous with any such termination and in addition to any amounts owed
to Terex pursuant to Section 6.4(a), (i) the entire outstanding principal
balance and premium, if any, owed by the Company, SDC Prague and/or TATRA,
as of the date of such termination, pursuant to the Loan Agreement and the
TATRA Loan Agreement.
(c) In the event of a termination by SDC Prague pursuant to
Section 6.3(d) hereof, SDC Prague shall pay in cash to Terex, simultaneous
with any such termination and in addition to any amounts owed to Terex
pursuant to Sections 6.4(a) and 6.4(b), $500,000.
SECTION 7. [Intentionally omitted.]
SECTION 8. Survival of Representations, Warranties, Agreements
and Covenants, Etc. All representations and warranties hereunder shall be
deemed to be made solely as of the date of this Agreement and shall survive
one year. None of the representations and warranties shall be affected by
any knowledge possessed by, or investigation of the subject matter thereof
made by or on behalf of, Terex or the Purchaser. All statements contained
in any schedule to this Agreement or in any certificate or other instrument
delivered by SDC Prague pursuant to Section 2.3 shall constitute
representations and warranties by SDC Prague under this Agreement. All
covenants and agreements contained herein shall survive indefinitely until,
by their respective terms, they are no longer operative.
SECTION 9. Indemnification.
---------------
9.1. General Indemnification. SDC Prague shall indemnify, defend
and hold Terex, the Purchaser and each of their respective officers,
directors, partners, managing directors, Affiliates, employees, agents,
consultants, representatives, successors and assigns (each a "Purchaser
Indemnitee") harmless from and against all Losses incurred or suffered by a
Purchaser Indemnitee arising out of, relating to or resulting from (i) any
breach of any of the representations or warranties made by SDC Prague in
this Agreement or in any certificate or other instrument delivered pursuant
hereto including, without limitation, the Transaction Documents, and (ii)
any breach of any of the covenants or agreements made SDC Prague in this
Agreement or in any certificate or other instrument delivered pursuant
hereto including, without limitation, the Transaction Documents. Terex and
the Purchaser shall indemnify, defend and hold SDC Prague, its Affiliates
and each of their respective officers, directors, employees, agents,
consultants, representatives, successors and assigns (each a "Seller
Indemnitee") harmless against all Losses arising from the breach of any of
the covenants or agreements of the Purchaser in this Agreement or in any
certificate or other instrument delivered pursuant hereto including,
without limitation, the Transaction Documents. Notwithstanding anything to
the contrary in this Agreement, (a) any and all payments by SDC Prague
pursuant to this Section 9 with respect to breach of representations or
warranties shall be limited to, in the aggregate, an amount equal to
$10,000,000 (less any amounts paid by the Company to Terex or the Purchaser
pursuant to Section 8 of the Indemnification Agreement) and no
indemnification payment by SDC Prague with respect to any such Losses
otherwise payable hereunder shall be payable until such time as all such
Losses (exclusive of attorneys' fees or other expenses of investigation or
defense) shall aggregate to more than $250,000 (including any Losses
payable pursuant to Section 8 of the Indemnification Agreement), and then
only to the extent that such Losses (including any Losses payable pursuant
to Section 8 of the Indemnification Agreement), in the aggregate, exceed
such amount. In determining whether a Purchaser Indemnitee is entitled to
recover under this Section 9 for any Losses, the representations and
warranties of SDC Prague shall not be deemed qualified by any references to
materiality contained therein and any breaches thereof shall be determined
without regard to whether such breach constitutes a Material Adverse Effect
or Material Adverse Change. Notwithstanding anything to the contrary in
this Agreement, (a) any and all payments by Terex and the Purchaser
pursuant to this Section 9 with respect to breach of representations or
warranties shall be limited to, in the aggregate, an amount equal to
$10,000,000 and no indemnification payment by Terex and the Purchaser with
respect to any such Losses otherwise payable hereunder shall be payable
until such time as all such Losses (exclusive of attorneys' fees or other
expenses of investigation or defense) shall aggregate to more than
$250,000, and then only to the extent that such Losses, in the aggregate,
exceed such amount. In determining whether a Seller Indemnitee is entitled
to recover under this Section 9 for any Losses, the representations and
warranties of Terex and the Purchaser shall not be deemed qualified by any
references to materiality contained therein and any breaches thereof shall
be determined without regard to whether such breach constitutes a Material
Adverse Effect or Material Adverse Change
9.2. Indemnification Principles. For purposes of this Agreement,
"Losses" shall mean each and all of the following items: claims, losses
(excluding losses of earnings or similar consequential or indirect losses),
liabilities, obligations, payments, damages (excluding indirect or similar
damages), charges, judgments, fines, penalties, amounts paid in settlement,
costs and expenses (including, without limitation, interest which may be
imposed in connection therewith, reasonable costs and expenses of
investigation, actions, suits, proceedings, demands, assessments and
reasonable fees, expenses and disbursements of counsel, consultants and
other experts); provided, however, that for purposes of calculating Losses
pursuant to this Section 9, Losses of the Company shall be calculated net
of any reduction to the Tax liability of the Company actually realized as a
result of any such item giving rise to a Tax deduction to the Company. Any
indemnification payment by SDC Prague to any Purchaser Indemnitee pursuant
to this Section 9 shall include an additional amount so that the Purchaser
Indemnitee does not, directly or indirectly, bear any portion of such
payment made by SDC Prague with respect to such payment on account of the
Purchaser Indemnitee's direct or indirect investment in the Company. To the
extent permitted by Law, any payment by SDC Prague to Purchaser pursuant to
this Section 9 shall be treated for all income Tax purposes as an
adjustment to the price paid by the Purchaser for the TATRA Shares pursuant
to this Agreement.
9.3. Claim Notice. Any claim for indemnification pursuant to this
Section 9 must be made before the expiration of the survival periods set
forth in Section 8 of this Agreement. No party shall be entitled to
indemnification against a Loss arising from the breach of any
representations or warranties of any other party unless the party seeking
indemnification shall have given to the party from whom indemnification is
being sought a claim notice relating to such Loss (a "Claim Notice") prior
to expiration of the representation or warranty upon which the claim is
based. The Claim Notice shall be given reasonably promptly (but, in the
case of a third party claim against the indemnified party, within 15 days
after the indemnified party has received written notification of such
claim) after the party seeking indemnity becomes aware of the facts
indicating that a claim for indemnification may be warranted. Each Claim
Notice shall specify in reasonable detail (to the extent known) the nature
of the claim, the applicable provision(s) of this Agreement or other
instrument under which the claim for indemnity arises, and, if possible,
the amount or the estimated amount thereof. The failure of any indemnified
party to give a Claim Notice shall not relieve the indemnifying party of
its obligations under this Section 9, except to the extent that the
indemnified or indemnifying party is actually materially prejudiced by
failure to give such Claim Notice. The indemnifying party may, through
counsel of its own choosing and reasonably satisfactory to the indemnified
party, assume the defense thereof or other indemnification obligation with
respect thereto; provided, however, that (a) any indemnified party shall be
entitled to participate in any such claim with counsel of its own choice
but at its own expense and (b) any indemnified party shall be entitled to
participate in any such claim with counsel of its own choice at the expense
of the indemnifying party if representation of both parties by the same
counsel is otherwise inappropriate under applicable standards of
professional conduct or the indemnified party is otherwise adversely
affected thereby. In any event, if the indemnifying party fails to take
reasonable steps necessary to defend diligently the action or proceeding
within 20 days after receiving the notice from such indemnified party that
the indemnifying party has failed to do so, the indemnified party may
assume such defense or other indemnification obligation and the fees and
expenses of its attorneys will be covered by the indemnity provided for in
this Section 9. Notwithstanding anything in this Section 9 to the contrary,
the indemnifying party shall not, without the written consent of the
indemnified party, settle or compromise any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) or consent to the entry of any judgment (i)
which does not, to the extent that an indemnified party may have any
liability with respect to such action or claim, include as an unconditional
term thereof the delivery by the claimant or plaintiff to the indemnified
party of a written release from all liability in respect of such action or
claim, (ii) which includes any statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party,
or (iii) in any manner that involves any injunctive relief against the
indemnified party or may materially and adversely affect the indemnified
party. Notwithstanding anything in this Section 9 to the contrary, the
indemnified party may not compromise or settle any claim without the prior
written consent of the indemnifying party (which consent shall not be
unreasonably withheld or delayed), unless the sole relief granted is
equitable relief for which the indemnifying party would have no liability
or to which the indemnifying party would not be subject.
SECTION 10. Remedies. In case any one or more of the covenants
and/or agreements set forth in this Agreement shall have been breached by
SDC Prague, the Purchaser may proceed to protect and enforce its rights
either by suit in equity and/or by action at Law, including, but not
limited to, an action for damages as a result of any such breach and/or an
action for specific performance of any such covenant or agreement contained
in this Agreement; provided, however, that the indemnification provisions
set forth in Section 9 hereof shall be the sole and exclusive monetary
damages remedy for any breach of the Transaction Documents during the
period ending one year from the date hereof, other than for breaches
involving fraud or bad faith.
SECTION 11. Payment of Expenses. At any time or from time to time
after the Closing, the Company and SDC Prague may present Terex with a
written request for reimbursement for expenses and costs, accompanied by an
itemized description of such expenses and costs and by such supporting
documentation as Terex may reasonably request, incurred by SDC Prague (i)
in connection with obtaining an opinion with respect to the transactions
contemplated by this Agreement from Capitalink LLC (the "Capitalink
Expenses"), and (ii) in connection with the rendering of legal services to
the Company and SDC Prague by Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP with
respect to the transactions contemplated by this Agreement (the "Legal
Fees"). Terex agrees to reimburse SDC Prague for the Capitalink Expenses in
an amount not to exceed $150,000 in the aggregate and for the Legal Fees in
an amount not to exceed $100,000 in the aggregate, in each case within 30
days of Terex's receipt of such written request and supporting
documentation.
SECTION 12. Further Assurances. At any time or from time to time
after the Closing, SDC Prague, on the one hand, and Terex and the
Purchaser, on the other hand, agree to cooperate with each other, and at
the request of the other party, to execute and deliver any further
instruments or documents and to take all such further action as the other
party may reasonably request in order to evidence or effectuate the
consummation of the transactions contemplated hereby relating to the TATRA
Purchase and to otherwise carry out the intent of the parties hereunder.
SECTION 13. Legends. SDC Prague acknowledges and agrees that,
except for certificates representing shares of Terex Stock which are
subject to an effective Registration Statement filed by Terex or until no
longer required by applicable Law, the certificates evidencing the Terex
Stock issued pursuant to this Agreement shall contain a legend
substantially as follows (it being agreed that Terex will provide
replacement certificates without any such legend if not required by
applicable Law in Terex's reasonable judgment upon request by SDC Prague):
The shares represented by this certificate have not been
registered under the Securities Act of 1933. The shares
represented by this certificate may only be sold or
transferred if they are at the time registered under the
Securities Act of 1933 or if the sale or transfer thereof is
not required to be so registered or is made pursuant to an
exemption from registration provided by said Act or the
rules and regulations promulgated thereunder. The shares
represented by this certificate are subject to the
restrictions set forth in Stock Purchase Agreement, dated as
of August 28, 2003, by and among SDC Prague, S.R.O, Terex
Corporation, and GP Omikron, S.R.O. and the Registration
Rights Agreement, dated as of August, 28 2003, by and among
SDC Prague, S.R.O. and Terex Corporation.
SECTION 14. Successors and Assigns. This Agreement shall bind and
inure to the benefit of SDC Prague, Terex and the Purchaser and the
respective successors, assigns, heirs and personal representatives of SDC
Prague, Terex and the Purchaser. SDC Prague acknowledges that, subject to
compliance with applicable securities Laws, Purchaser may transfer, all or
part of, the TATRA Shares acquired by it hereunder and assign, all or part
of, its rights and obligations under this Agreement.
SECTION 15. Entire Agreement. This Agreement and the other
writings referred to herein or delivered pursuant hereto, including the
Transaction Documents, which form a part hereof contain the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior and contemporaneous arrangements or understandings with
respect thereto.
SECTION 16. Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by confirmed
transmission by telecopy, or five (5) days (or earlier if received) after
deposit with a nationally recognized overnight courier or first class
registered or certified mail, return receipt requested, postage prepaid,
addressed to such party at the address set forth below or such other
address as may hereafter be designated in writing by such party to the
other parties:
if to SDC Prague, to:
SDC International, Inc.
000 Xxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxx, Chairman/CEO
with a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx Xxxxx, Esq.
and
if to Purchaser or Terex, to:
Terex Corporation
000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxx X Xxxxx, Esq.
with copies to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
and
Xxxxx & Partner, v.o.s.
Palac Myslbek
Xxxxxx xxx 0
000 00 - Xxxxx 0
Telecopy: 420--2-222 444 69
Attention: Xxxxx Xxxxx, Esq.
All such notices, requests, consents and other communications
shall be deemed to have been given when received.
SECTION 17. Amendments. The terms and provisions of this
Agreement may be modified or amended, or any of the provisions hereof
waived, temporarily or permanently, pursuant to the written consent of SDC
Prague and Terex.
SECTION 18. Counterparts. This Agreement may be executed in any
number of counterparts, and each such counterpart hereof shall be deemed to
be an original instrument, but all such counterparts together shall
constitute but one agreement.
SECTION 19. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only and shall
not be deemed to be a part of this Agreement.
SECTION 20. Nouns and Pronouns. Whenever the context may require,
any pronouns used herein shall include the corresponding masculine,
feminine or neuter forms, and the singular form of names and pronouns shall
include the plural and vice versa.
SECTION 21. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
giving effect to the principles of conflicts of law. Each of the parties
hereto hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the courts of the State of New York and of the
United States of America, in each case located in the County of New York,
for any litigation arising out of or relating to this Agreement and the
transactions contemplated hereby (and agrees not to commence any litigation
relating thereto except in such courts), and further agrees that service of
any process, summons, notice or document by U.S. registered mail to its
respective address set forth in this Agreement, or such other address as
may be given by one or more parties to the other parties in accordance with
the notice provisions of Section 16, shall be effective service of process
for any litigation brought against it in any such court. Each of the
parties hereto hereby irrevocably and unconditionally waives any objection
to the laying of venue of any litigation arising out of this Agreement or
the transactions contemplated hereby in the courts of the State of New York
or the United States of America, in each case located in the County of New
York, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such litigation brought in
any such court has been brought in an inconvenient forum.
SECTION 22. Severability. If any term, provision, covenant or
restriction of this Agreement or any exhibit hereto is held by a court of
competent jurisdiction to be invalid, void or unenforceable, (i) such
provision shall be deemed to be restated to reflect as nearly as possible
the original intentions of the parties in accordance with applicable Law
and (ii) the remainder of the terms, provisions, covenants and restrictions
of this Agreement and such exhibits shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
SECTION 23. Definitions. For purposes of this Agreement:
-----------
"Acquisition Proposal" shall mean (i) any proposal or offer
from any Person relating to any direct or indirect acquisition or purchase
of any of the TATRA Shares or the direct or indirect acquisition or
purchase of any of the outstanding voting securities of the Company or SDC
Prague, (ii) any tender offer, exchange offer or other transaction that, if
consummated, would result in any Person beneficially owning (A) 20% or more
of the outstanding voting securities of TATRA or SDC Prague or (B) 35% or
more of the outstanding voting securities of the Company; or (iii) any
merger, consolidation, business combination, sale of substantially all of
the assets, recapitalization, liquidation, dissolution or similar
transaction involving the Company, SDC Prague or TATRA, other than, in each
case, the transactions contemplated by this Agreement.
"Affiliate" shall have the meaning ascribed to such term in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
"Business" means the assembly and production of motor
vehicles and further activities entered in the Commercial Register as the
subject of the business of TATRA.
"Business Day" means any day other than a Saturday, Sunday
or a day on which banks in New York City are authorized or obligated by Law
or executive order to close.
"Closing Price" means the closing sale price of Terex Stock
as supplied by the NYSE.
"Contract Shares" means bearer shares in book-entry form,
each with a current nominal value of CZK 250, with such nominal value being
decreased to CZK 100, of the registered capital of TATRA.
"Encumbrance" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), charge against or interest in property, or other
priority or preferential arrangement of any kind or nature whatsoever that
has the same practical effect as a security interest, to secure payment of
a debt or performance of an obligation.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"Governmental Entity" means any supernational, national,
foreign, federal, state or local judicial, legislative, executive,
administrative or regulatory body or authority.
"Guarantees" means (i) the guarantee, dated as of December
27, 2001, made by SDC Prague in favor of Terex, (ii) the guarantee, dated
as of February 20, 2002, made by SDC Prague in favor of Terex (as amended
on February 20, 2002) and (iii) the guarantee, dated as of February 20,
2002, made by the Company in favor of Terex.
"Indemnification Agreement" means the Indemnification
Agreement, dated as of the date hereof, by and among the Company, Terex and
Purchaser.
"Law" includes any foreign, federal, state, or local law,
statute, ordinance, rule, regulation, order, judgment or decree.
"Loan Agreement" means the loan agreement, dated as of
December 27, 2001, by and between the Company and Terex.
"Material Adverse Change" means a change, individually or in
the aggregate that has or may reasonably be expected to have a Material
Adverse Effect.
"Material Adverse Effect" means any event, change or
occurrence which has had, or is reasonably likely to have, individually or
together with any other event, change or occurrence a material adverse
effect on the business, operations, properties, assets, condition
(financial or other) or the results of operations of the applicable Person
and its Subsidiaries, if any, taken as a whole.
"Notes" means the 9.00% Convertible Note due December 31,
2004 in the aggregate principal amount of $6,069,900 and the 9.00%
Convertible Note due December 31, 2004 in the aggregate principal amount of
$2,000,000.
"NYSE" means the New York Stock Exchange.
"Person" means any individual, corporation, limited
liability company, partnership, limited partnership, syndicate, person,
trust, association or entity or government, political subdivision, agency
or instrumentality of a government.
"Pledge Agreements" means (i) the Pledge Agreement
Concerning Shares of the Company TATRA, a.s., dated December 28, 0000,
xxxxxxx XXX Xxxxxx xxx Xxxxx, (xx) the Pledge Agreement Concerning Business
Share of the Company SDC Prague, dated December 28, 2001, between the
Company and Terex, (iii) the Pledge Agreement Concerning Shares of the
Company TATRA, a.s., dated February 21, 2002, between SDC Prague and Terex
and (iv) the Pledge Agreement Concerning Business Share of the Company SDC
Prague, dated February 21, 2002, between SDC and Terex.
"Securities Act" means Act No. 591/1992 Coll. On Securities,
as amended and in force and effect from time to time.
"Securities Center" means the legal entity, established
pursuant to the Securities Act, that maintains the register of book-entry
securities and performs other activities under the Securities Act.
"Subsidiary" means, with respect to any Person, any company,
corporation, partnership, limited liability company or other entity (A) of
which shares of capital stock or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other similar
managing body of such company, corporation, partnership, limited liability
company or other entity are at the time owned or controlled, directly or
indirectly, by such Person or (B) the management of which is otherwise
controlled, directly or indirectly, through one or more intermediaries by
such Person. SDC Prague and TATRA shall each be deemed to be a Subsidiary
of the Company.
"Superior Proposal" means any bona fide, unsolicited, third
party written Acquisition Proposal obtained not in breach of this Agreement
to acquire, directly or indirectly, for consideration consisting solely of
cash or cash equivalents (including, without limitation, registered or
immediately registrable equity securities of a U.S. public company), 100%
of the outstanding equity securities of SDC Prague or 100% of the TATRA
Shares, on terms that the Executive of SDC Prague or the Board of Directors
of the Company determine in their respective good faith judgment (based,
with respect to consideration payable, upon the advice of SDC Prague's or
the Company's outside financial advisor(s), as applicable) (i) to provide
greater value from a financial point of view to SDC Prague's or the
Company's stockholders and creditors taken as a whole than the transactions
contemplated by this Agreement and the Termination Agreement, (y) to be
capable of being consummated, taking into account the Person making the
proposal and all legal, financial, regulatory and other aspects of the
Acquisition Proposal and (z) if financing is necessary in order to
consummate such Acquisition Proposal, to be supported by available
financing or a financing commitment letter; provided, however, that any
such letter not be subject to any non-traditional conditions (including,
without limitation, any due diligence condition or any condition relating
to the financial condition or operating results of any party).
"TATRA Loan Agreement" means that certain Loan Agreement,
dated as of February 20, 2002, between Terex, TATRA, the Company and SDC
Prague.
"Taxes" means all federal, state, local or foreign taxes,
including but not limited to income, gross receipts, windfall profits,
value added, severance, property, production, sales, use, license, excise,
franchise, employment, withholding or similar taxes, together with any
interest, additions or penalties with respect thereto and any interest in
respect of such additions or penalties.
"Trading Day" means a day on which the NYSE is open for
trading and a Closing Price is supplied for the Terex Stock.
"Terex Competitor" shall mean each of the following entities
and their respective Subsidiaries and Affiliates: Osh Kosh Trucks, Xxxxxxx
& Xxxxxxxxx, Caterpillar, Volvo, Komatsu, Liebherr, Xxxxxxxxx Xxxx,
Manitowoc, JLG Industries, Textron, Xxxx Deere, Altec, Moxy, Xxxx, Case/New
Holland, Euclid/Hitachi and Joy Global.
"Transaction Documents" means this Agreement, the
Registration Rights Agreement, the Termination Agreement and the
Indemnification Agreement.
"Voting Securities" means the Common Stock and any other
securities of the Company or any Subsidiary of the Company (or any other
corporation or joint stock company) which are then entitled to vote
generally in the election of directors of the Company or such Subsidiary of
the Company (or such other corporation or joint stock company).
SECTION 24. Currency. The term "$" means United States Dollars.
The term "CZK" means Czech crowns, the official currency of the Czech
Republic.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Stock Purchase Agreement as of the date first above written.
Terex Corporation
By: /s/ Xxxx X Xxxxx
--------------------------------
Name: Xxxx X Xxxxx
Title: Senior Vice President
GP OMIKRON, S.R.O.
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxx
Title: General Manager
SDC Prague, S.R.O.
By: /s/ Edita Stedra
-------------------------------
Name: Edita Stedra
Title: Executive
