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