--------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
by and among
THE STOCKHOLDERS
and
TEREX CORPORATION
Dated as of September 18, 2002
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
1. Definitions....................................................... 1
2. Registration Rights............................................... 3
2.1. Shelf Registration....................................... 3
3. Conditions and Limitations........................................ 3
4. Registration Procedures........................................... 4
5. Indemnification and Contribution.................................. 6
6. Registration Expenses............................................. 7
7. Miscellaneous..................................................... 7
7.1. Termination.............................................. 7
7.2. No Waivers; Amendments................................... 7
7.3. Notices.................................................. 8
7.4. Successors and Assigns................................... 8
7.5. Headings................................................. 8
7.6. Governing Law............................................ 8
7.7. WAIVER OF JURY TRIAL..................................... 9
7.8. Severability............................................. 9
7.9. Entire Agreement......................................... 9
7.10. Specific Performance..................................... 9
7.11. Action of Stockholders................................... 9
-i-
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of September 18, 2002, by and among Terex Corporation, a Delaware
corporation (together with its permitted successors and assigns, the "Company"),
and the Persons whose signatures appear on the execution pages of this Agreement
(the "Stockholders").
This Agreement is made pursuant to the Agreement and Plan of Merger, by and
among, the Company, Magic Acquisition Corp. and Genie Holdings, Inc., and the
Stockholders, dated as of July 19, 2002 hereof (the "Merger Agreement"),
pursuant to which the Stockholders will receive shares of Common Stock (as
defined below) of the Company.
The parties hereto, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, intending to be bound hereby agree
as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Acces Industrie Receivable Contingent Payment" means the Company Common
Stock issued to the Stockholders in connection with the collection of the Acces
Industrie Receivable.
"Agreement" has the meaning set forth in the recitals hereof.
"Average Qualifying Date Buyer Common Price" shall have the meaning
ascribed to it in the Merger Agreement.
"Business Day" means any day that the New York Stock Exchange is normally
open for trading for a full day and that is not a Saturday, a Sunday or a day on
which banks in the City of New York are authorized or required to close for
regular banking business.
"Buyer Indemnitee" shall have the meaning ascribed to it in the Merger
Agreement.
"Buyer Price" shall have the meaning ascribed to it in the Merger
Agreement.
"Cash Consideration" shall have the meaning ascribed to it in the Merger
Agreement.
"Closing Date" shall have the meaning ascribed to it in the Merger
Agreement.
"Common Stock" means the common stock, par value $0.01 per share, of the
Company.
"Company" has the meaning set forth in the recitals hereof.
"Delay Period" has the meaning set forth in Section 3(c) hereof.
"Effectiveness Period" has the meaning set forth in Section 2(b) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Merger Agreement" has the meaning set forth in the recitals hereof.
"Non-Competition Payments" shall have the meaning ascribed to it in the
Merger Agreement.
"Permitted Transferee" shall have the meaning set forth in Section 7.4
herein.
"Person" means an individual, corporation, limited liability company,
partnership, joint venture, joint stock company, association, trust,
unincorporated entity or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof, whether acting in
an individual, fiduciary or other capacity.
"Pro Rata Portion" shall have the meaning ascribed to it in the Merger
Agreement.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Shares covered by such Registration Statement and all other
amendments and supplements to the prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such prospectus.
"Qualifying Date" means each of (i) the twelve month anniversary, (ii) the
eighteen month anniversary, and (iii) the twenty-four month anniversary of the
Closing Date.
"Registrable Shares" means the shares of Common Stock to be issued to the
Stockholders pursuant to the Merger Agreement, including any shares of Common
Stock issued as Contingent Payment (as defined in the Merger Agreement), the
Acces Industrie Receivable Contingent Payment and any shares of Common Stock
paid, issued or distributed in respect of such shares by way of stock dividends
or distribution or stock split or in connection with a combination of shares,
recapitalization, reorganization, merger or otherwise, until in the case of any
such shares (i) a Registration Statement covering such shares has been declared
effective under the Securities Act and such shares have been disposed of
pursuant to such effective registration statement under the Securities Act, or
(ii) such shares are eligible to be transferred by their holder without
registration pursuant to Rule 144 under the Securities Act or any successor rule
and the Company has agreed to remove the restrictive legend referred to in
Section 3.4(c) of the Merger Agreement upon such sale.
"Registration Statement" shall have the meaning set forth in Section 2.1(a)
hereof.
"Restriction Period" has the meaning set forth in Section 3(a) hereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Sellers' Representative" shall have the meaning ascribed to it in the
Merger Agreement.
"Stock Consideration Per Sellers' Share" shall have the meaning ascribed to
it in the Merger Agreement.
"Stockholders" has the meaning set forth in the recitals hereof.
-2-
"Trading Restriction Period" has the meaning set forth in Section 3(g)
hereof.
2. Registration Rights.
2.1. Shelf Registration
(a) Subject to the conditions set forth in Section 3 hereof, the Company
shall prepare and file, upon the later of (i) 10 Business Days after the date
hereof and (ii) seven Business Days after the date Genie Holdings, Inc. provides
all information either requested by the Company or otherwise required by the SEC
for inclusion in such registration statement, a registration statement under the
Securities Act relating to the Registrable Shares, which registration statement
provides for the sale by the holders thereof of Registrable Shares from time to
time on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act (the "Registration Statement"). Each of the Sellers and Company shall use
commercially reasonable efforts to cause the Registration Statement to be
declared effective under the Securities Act as soon as practicable after the
filing thereof.
(b) Subject to the conditions set forth in Section 3 hereof, upon having
the Registration Statement declared effective by the SEC, the Company agrees to
use its reasonable best efforts to keep the Registration Statement continuously
effective and usable for the resale of Registrable Shares for a period ending on
the earlier of (i) two years from the anniversary of the Closing Date and (ii)
the date on which the Stockholders (or their Permitted Transferees) no longer
own Registrable Shares (the "Effectiveness Period").
3. Conditions and Limitations.
Notwithstanding anything herein to the contrary, the Stockholders agree:
(a) Unless otherwise agreed to in writing by the Company, during the
twenty-four month period immediately following the Closing Date (the
"Restriction Period") and subject to the terms of Section 3(b) below, none of
the Stockholders shall be permitted to sell, transfer, convey, pledge or
otherwise dispose of any of their Registrable Shares.
(b) Notwithstanding clause (a) of this Section 3, during the Restriction
Period, each of the Stockholders shall be permitted to sell, transfer, convey,
pledge or otherwise dispose of its Pro Rata Portion of: (i) the number of shares
of Common Stock (rounded down to the nearest whole share) equal to the quotient
of (A) the difference between $25 million less the total Cash Consideration
divided by (B) the Buyer Price, (ii) following the twelve month anniversary of
the Closing Date, up to one-half of the Stock Consideration remaining after the
release of the number of shares of Common Stock pursuant to clause (i) above,
(iii) following the eighteen month anniversary of the Closing Date, up to three
quarters of the Stock Consideration remaining after the release of the number of
shares of Common Stock pursuant to clauses (i) and (ii) above and (iv) all of
the Stock Consideration following the twenty-four month anniversary of the
Closing Date.
(c) The Company shall have the right to suspend the effectiveness of the
Registration Statement, for up to 45 consecutive days, but no more than an
aggregate of 135 days during any 365 day period (a "Delay Period") if (x)(i) an
event occurs and is continuing as a result of which the Registration Statement
would, in the Company's good faith judgment, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein not misleading and (ii) if the Company determines in good
faith that the disclosure of such event at such time would have a material
adverse effect on the business, operations or prospects of the Company or (y)
the disclosure otherwise relates to a pending material business transaction
which has not yet been publicly
-3-
disclosed. If the Company suspends the effectiveness of a Registration
Statement, the Company shall promptly provide written notice (to the extent
practicable) to the Sellers' Representative of such Delay Period. In addition,
the Company shall promptly provide notice to the Sellers' Representative of the
reinstatement of effectiveness of the Registration Statement. The holders of
Registrable Shares shall cease all disposition efforts with respect to
Registrable Shares held by them immediately upon the beginning of any Delay
Period until notified of the end of such Delay Period.
(d) The Stockholders shall not, during the period (each, a "Lock Up
Period") starting with the effective date and ending one-hundred and twenty
calendar days immediately following the effective date of any registration
statement pertaining to securities of the Company, if so requested by an
underwriter in an underwritten offering for the Company (and only for the
account of the Company), effect any public sale or distribution of any of the
Company's equity securities including a sale pursuant to Rule 144. In addition,
if requested by the Company, the Stockholders shall not effect any public sale
or distribution of any of the Registrable Shares pursuant to the Registration
Statement, during the ten-day period prior to, and during the pendency of, any
period during which an exchange ratio or similar valuation formula based upon
the trading prices of the Common Stock is being calculated.
(e) Notwithstanding anything to the contrary set forth herein, the
Stockholders shall not be subject to the restrictions set forth in Section 3(a),
and such restrictions shall terminate in their entirety if (i) the Company fails
to comply with the restrictions during the time frames set forth in Exhibit J to
the Merger Agreement and (ii) the Company has not obtained an opinion of counsel
as described in Section 8.4(d) of the Merger Agreement.
(f) Notwithstanding anything herein to the contrary, in the event that the
Stockholders are required to indemnify a Buyer Indemnitee pursuant to the Merger
Agreement, the restrictions set forth in this Section 3 shall terminate but only
with respect to the number of Registrable Shares necessary to enable the
Stockholders to pay their indemnification obligations pursuant to Section 11.2
of the Merger Agreement.
(g) Notwithstanding anything to the contrary in this Agreement, the
Stockholders agree that during the five Trading Days immediately prior to and
the ten Trading Days during each period in which the Average Qualifying Date
Buyer Common Price is calculated (the "Trading Restriction Period"), they will
not sell, transfer, assign, convey, pledge or otherwise dispose of any
Registrable Shares, or engage in any form of hedging transaction related to
Registrable Shares, including but not limited to the purchase or sale of any
puts, calls or enter into any transaction that has the effect of or is
equivalent to engaging in Short Sales. For purposes hereof, a "Short Sale" by a
Stockholder or its Affiliate or related entity shall mean a sale of Registrable
Shares by such person that is made at any time, whether or not there is an
equivalent offsetting long position in the Buyer Common Stock held by such
person. Notwithstanding the foregoing, the Stockholders may enter into hedging
transactions, including a (i) loan or (ii) pledge of such Stockholder's
Registrable Shares in connection with such hedging transaction, at any time
other than during the Trading Restriction Period.
4. Registration Procedures.
In connection with the registration obligations of the Company pursuant to
and in accordance with Section 2 hereof (and subject to the Company's rights
under Section 3), the Company will use its reasonable best efforts to effect
such registration to permit the sale of such Registrable Shares in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Company shall as expeditiously as possible:
-4-
(a) prepare and file with the SEC such amendments (including post-effective
amendments) to the Registration Statement, and such supplements to the
Prospectus, as may be required by the rules, regulations or instructions
applicable to the Securities Act or the rules and regulations thereunder during
the applicable period in accordance with the intended methods of disposition by
the Stockholders thereof (other than pursuant to any underwritten registration
or underwritten offering) and cause the Prospectus as so supplemented to be
filed pursuant to Rule 424 under the Securities Act;
(b) notify the selling Stockholders of Registrable Shares promptly and (if
requested by any such Person) confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the SEC
for amendments or supplements to the Registration Statement or related
Prospectus or for additional information regarding such holder, (iii) of the
issuance by the SEC of any stop order suspending the effectiveness of any
Registration Statement or the initiation of any proceedings for that purpose,
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Shares for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, and (v) of the happening of any event that
requires the making of any changes in the Registration Statement so that it will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading;
(c) use reasonable best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness of the Registration Statement, or the prompt
lifting of any suspension of the qualification or exemption from qualification
of any of the Registrable Shares for sale in any jurisdiction in the United
States;
(d) if requested by the selling Stockholders, furnish to counsel for the
selling holders of Registrable Shares, without charge, one conformed copy of the
Registration Statement as declared effective by the SEC and of each
post-effective amendment thereto, in each case including financial statements
and schedules and all exhibits and reports incorporated or deemed to be
incorporated therein by reference; and such number of copies of the preliminary
Prospectus, each amended preliminary Prospectus, each final Prospectus and each
post-effective amendment or supplement thereto, as the selling holders may
reasonably request in order to facilitate the disposition of the Registrable
Shares covered by the Registration Statement in conformity with the requirement
of the Securities Act (the Company hereby consenting to such use of such
documents);
(e) except during any Delay Period described in Section 3 above, upon the
occurrence of any event contemplated by paragraph 4(b)(ii) or 4(b)(v) above,
promptly prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Shares being sold
thereunder, such Prospectus will not contain an 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, in light of the circumstances under
which they were made, not misleading;
(f) cause all Registrable Shares covered by the Registration Statement to
be listed on each securities exchange, if any, on which similar securities
issued by the Company are then listed;
(g) no holders of Registrable Shares may include any of their Registrable
Shares in the Registration Statement pursuant to this Agreement unless and until
such holder furnishes to
-5-
the Company in writing, the information specified in Item 507 of S-K and such
other information which is required to be disclosed in the Registration
Statement as reasonably determined by counsel of the Company; and
(h) the Company will use its reasonable best efforts to obtain all
necessary state securities law or "Blue Sky" permits and approvals required for
the sale of the Registrable Shares.
5. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each holder of Registrable
Shares, each Person, if any, who controls such holder within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, and
the agents, employees, officers and directors of such holder and each such
controlling Person, against any losses, claims, damages or liabilities to which
such indemnified party may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or any action
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or Prospectus or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse such indemnified parties for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending against such loss, claim, damage or liability as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
information furnished in writing to the Company by such indemnified party
specifically for use in the preparation thereof; provided, further, that the
Company shall not be liable to any indemnified party hereunder with respect to
the Registration Statement or Prospectus to the extent that any such loss,
claim, damage or liability of such indemnified party results solely from an
untrue statement of a material fact contained in, or the omission of a material
fact from, the Registration Statement or Prospectus which untrue statement or
omission was corrected in an amended or supplemented Registration Statement or
Prospectus, if the Person alleging such loss, claim, damage or liability was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the amended or supplemented Registration Statement or Prospectus if the Company
had previously furnished copies thereof to such indemnified party.
(b) Each Stockholder of Registrable Shares, severally and not jointly, will
indemnify and hold harmless the Company, each Person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, and the agents, employees, officers and directors of the
Company and each such controlling Person against any losses, claims, damages or
liabilities to which each such indemnified party may become subject, under the
Securities Act or otherwise, to the same extent as the foregoing indemnity from
the Company, but only insofar as such losses, claims, damages or liabilities
arise out of or are based upon misstatements or alleged misstatements or
omissions or alleged omissions made in reliance upon and in conformity with
information furnished in writing by such holder to the Company specifically for
use in the preparation of the Registration Statement (or any amendment or
supplement thereto) and will reimburse such indemnified parties for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending against such loss, claim, damage or liability as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action, such indemnified party shall notify the indemnifying
party in writing of the commencement thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability that it may have to
any indemnified party except to the extent the indemnifying party shall have
-6-
been prejudiced as a result of such failure. In case any such action shall be
brought against any indemnified party, and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, to assume the defense
thereof, with counsel satisfactory to such indemnified party. In the event the
indemnifying party shall assume the defense thereof, any such indemnified party
shall have the right to employ separate counsel in such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (a) the indemnifying
party has agreed to pay such fees and expenses or (b) the named parties to any
such action or proceeding (including any impleaded parties) include both such
indemnified party and the indemnifying party, and such indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to such indemnified party which are different from or additional to
those available to the indemnifying party (in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action or
proceeding on behalf of such indemnified party, it being understood, however,
that the indemnifying party shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the fees and expense of more than one separate
firm of attorneys at any time for all such indemnified parties). Any such fees
and expenses payable by the indemnifying party shall be paid to the indemnified
party entitled thereto as incurred by such indemnified party. The indemnifying
party shall not be liable for any settlement of any such action or proceeding
effected without its written consent (which shall not be unreasonably withheld),
but if settled with its written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the indemnifying party agrees to
indemnify and hold harmless each such indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) The obligations of the Company and the holders of Registrable Shares
under this Section 5 shall be in addition to any liability that such Persons may
otherwise have.
6. Registration Expenses.
Except as provided below, whether or not the Registration Statement
becomes effective, the Company shall pay all costs, fees and expenses incident
to the Company's performance of or compliance with this Agreement including,
without limitation, (i) all SEC registration and filing fees, (ii) fees and
expenses of compliance with securities or Blue Sky laws, (iii) fees and
disbursements of counsel for the Company and (iv) fees and disbursements of all
independent certified public accountants of the Company and all other Persons
retained by the Company in connection with the Registration Statement. In all
cases, the Stockholders will be responsible for, if applicable, underwriters
discounts, selling commissions and fees and disbursements of counsel for such
Stockholders with respect to the Registrable Shares being sold by it and the
Company will have no obligation to pay any such amounts.
7. Miscellaneous.
7.1. Termination. This Agreement and the obligations of the Company
hereunder shall terminate on the first date on which no Registrable Shares
remain outstanding.
7.2. No Waivers; Amendments. (a) No failure or delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
-7-
(b) Any provision of this Agreement may be amended or waived if, but only
if, such amendment or waiver is in writing and is signed by all parties hereto.
7.3. Notices. All notices, requests, demands and other communications
required or permitted herein shall be in writing and shall be deemed given: when
delivered personally; one Business Day after being deposited with a next-day air
courier; five Business Days after being deposited in the mail, postage prepaid,
if mailed; when answered back if telexed and when receipt is acknowledged, if
telecopied, in each case to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice; provided that
notices of a change of address shall be effective only upon receipt thereof);
(i) if to a Stockholder, to the Sellers' Representative at the most
current address given by such representative to the Company in accordance
with the provisions of this Section 7.3, which address shall initially be
x/x Xxxxx Xxxxxxxx Xxx., 00000 N.E. 76th Street, P.O. Box 97030, Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxxx, with a copy to Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx X. Xxxxxxxx, Esq.; and
(ii) if to the Company, initially at Terex Corporation, 000 Xxxx Xxxx
Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxx X Xxxxx, Esq., with a
copy to Xxxxx Xxxx XXX, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X.
Xxxxxx, Esq.
7.4. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties; provided
that without the written consent of the Company, the Stockholders may not assign
their rights hereunder and no Person who acquires Registrable Shares from a
Stockholder shall have any rights hereunder. Notwithstanding the foregoing and
with no obligation on the part of the Company to amend the Registration
Statement, a Stockholder's right under this Agreement may be assigned, in whole
or in part, to any Permitted Transferee, and any Permitted Transferee shall be
deemed to be a Stockholder; provided that no such assignment shall be effective
or confer any right on any such assignee unless, prior to such assignment, the
assignee agrees in writing, in form and substance reasonably satisfactory to the
Company, that such assignee will be bound by all provisions binding on a
Stockholder hereunder. A "Permitted Transferee" is any member of the family of a
Stockholder, including such Stockholder's spouse and descendants and any trust,
partnership, corporation, limited liability company or other entity for the
benefit of such spouse and/or descendants to whom or which any Registrable
Shares have been transferred by such Stockholder for estate or tax planning
purposes or any charity or foundation to which Registrable Shares have been
transferred by such Stockholder, any family member of such Stockholder, for
estate or tax planning or charitable purposes; provided that such transferee
agrees to be bound by the provisions hereof in accordance with the preceding
sentence. Neither this Agreement nor any provision hereof is intended to confer
upon any Person other than the parties hereto and any Permitted Transferee any
rights or remedies hereunder.
7.5 Counterparts. This Agreement may be executed in any number of
counterparts and by fax, each of which when so executed and delivered shall be
deemed an original with the same effect as if the signatures thereto and hereto
were upon the same instrument.
7.5. Headings. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
any provisions hereof.
7.6. Governing Law. This Agreement shall be governed, enforced and
construed in accordance with the laws of the State of New York without giving
effect to any choice or conflict of laws principles or rules thereof which might
result in the application of the laws of any other jurisdiction. Each
-8-
of the parties hereto expressly and irrevocably (a) consents to submit itself to
the exclusive jurisdiction of any federal court located in the State of New York
or any New York state court in the event any dispute arises out of or relates to
this Agreement or any of the transactions contemplated by this Agreement, (b)
agrees that it will not attempt to deny or defeat such personal jurisdiction by
motion or other request or leave from any such court, including, without
limitation, a motion to dismiss on the grounds of forum non conveniens, (c)
agrees that it will not bring any action arising out of or relating to this
Agreement or any of the transactions contemplated by this Agreement in any court
other than a federal court sitting in the State of New York or a New York state
court, and (d) waives any right to a trial by jury with respect to any claim,
counterclaim or action arising out of or in connection with this Agreement or
the transactions contemplated hereby.
7.7. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
7.8. Severability. The invalidity or unenforceability of any provisions of
this Agreement in any jurisdiction shall not affect the validity, legality or
enforceability of the remainder of this Agreement in such jurisdiction or the
validity, legality or enforceability of this Agreement, including any such
provision, in any other jurisdiction, it being intended that all rights and
obligations of the parties hereunder shall be enforceable to the fullest extent
permitted by law.
7.9. Entire Agreement. This Agreement and the Merger Agreement constitute
the entire agreement and understanding among the parties hereto and supersede
any and all prior agreements and understandings among or between the parties,
both written or oral, relating to the subject matter hereof.
7.10. Specific Performance. The parties hereto agree that if any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof and immediate injunctive relief, without the necessity of proving the
inadequacy of money damages as a remedy, in addition to any other remedy at law
or equity.
7.11. Action of Stockholders. Any action of the Stockholders under this
Agreement shall be made by approval of those Stockholders holding the majority
of the Registrable Shares on the date of such action.
-9-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
TEREX CORPORATION
By:
-----------------------------------------
Name
Title:
By:
-----------------------------------------
Name: XXXXXX XXXXXXXXX
Address for
Notice:
Number of
Shares:
By:
-----------------------------------------
Name: X. XXXX BUSHNELL
Address for
Notice:
Number of
Shares:
By:
-----------------------------------------
Name: F. XXXXX XXXXX
Address for
Notice:
Number of
Shares:
XXXXXXXXX LIMITED PARTNERSHIP
By:
-----------------------------------------
Name:
Title
Address for
Notice:
Number of
Shares:
BUSHNELL LIMITED PARTNERSHIP
By:
-----------------------------------------
Name:
Title:
Address for
Notice:
Number of
Shares:
