Exhibit 3
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of June 27, 2001,
among TEREX CORPORATION, a Delaware corporation ("Parent"), CLAUDIUS
ACQUISITION CORP., an Oklahoma corporation and a direct wholly owned
subsidiary of Parent ("Merger Sub"), CMI CORPORATION, an Oklahoma
corporation (the "Company"), the XXXXXX XXXXXXX XXXXXXX, XX. and XXXXX
XXXXX XXXXXXX CHARITABLE REMAINDER UNITRUST, the XXXXXX XXXXXXX XXXXXXX,
XX. and XXXXX XXXXX XXXXXXX CHARITABLE REMAINDER UNITRUST II, the XXXXXX
XXXXXXX XXXXXXX, XX. TRUST, and the XXXXXX X. XXXXXXX, XX. TRUST
(collectively, the "Xxxxxxx Trusts"), and XXXXXX XXXXXXX XXXXXXX, XX. a/k/a
Xxxx Xxxxxxx ("Xxxxxxx"), in an individual capacity and in his capacity as
trustee of the Xxxxxxx Trusts.
W I T N E S S E T H:
WHEREAS, Parent, Merger Sub and the Company are executing an Agreement
and Plan of Merger, dated as of the date hereof (the "Merger Agreement"),
which provides for, among other things, the merger of Merger Sub with and
into the Company and the exchange of all shares of Company Common Stock
outstanding immediately prior to the Effective Time for the Merger
Consideration.
WHEREAS, pursuant to Sections 1081 and 1082 of the OGCA and the
Certificate of Incorporation, the vote of a majority of the outstanding
shares of Company Common Stock is required to adopt the Merger Agreement
and approve the Merger and the other transactions contemplated by the
Merger Agreement.
WHEREAS, the Xxxxxxx Trusts are the record owners of and Xxxxxxx is
the beneficial owner and has the power to direct the vote of 2,066,883
shares of Company Common Stock (such shares, together with any shares of
Company Common Stock subsequently acquired by the Xxxxxxx Trusts and/or
Xxxxxxx, the "Xxxxxxx Securities").
WHEREAS, in order to induce Parent and Merger Sub to enter into the
Merger Agreement and for other good and valuable consideration, Parent,
Merger Sub, the Company, the Xxxxxxx Trusts and Xxxxxxx are entering into
this Agreement pursuant to which the Xxxxxxx Trusts and Xxxxxxx agree to
vote the Subject Securities (as defined below) in favor of the adoption and
approval of the Merger Agreement, the Merger and the transactions
contemplated by the Merger Agreement.
NOW, THEREFORE, in consideration of the promises and the respective
representations, warranties, covenants and agreements set forth herein, the
parties agree as follows:
1. Definitions. All capitalized terms, unless otherwise defined
herein, shall have the meaning ascribed to such terms in the Merger
Agreement.
2. Agreement to Vote. The Xxxxxxx Trusts and Xxxxxxx hereby
irrevocably agree that, from and after the date hereof until the Expiration
Date (as defined below), at any annual, special or any other meeting of the
shareholders of the Company (or adjournment or postponement thereof),
however called or in respect of which the Xxxxxxx Trusts and/or Xxxxxxx are
or may be entitled to act by written consent, the Xxxxxxx Trusts and
Xxxxxxx shall vote (or cause to be voted) all of the Xxxxxxx Securities and
any other shares of Company Common Stock, that pursuant to any voting trust
agreement or other contract, agreement, arrangement, commitment or
understanding, the Xxxxxxx Trusts and/or Xxxxxxx may direct the vote
thereof with respect to matters similar to those set forth in the following
clauses (i) and (ii) (such shares, the "Other Securities" and together with
the Xxxxxxx Securities, the "Subject Securities"), (i) in favor of adoption
and approval of the Merger Agreement, the Merger and the transactions
contemplated by the Merger Agreement and (ii) except as otherwise agreed to
in writing in advance by Parent, against (a) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company (other than the Merger and the transactions
contemplated by the Merger Agreement), (b) a sale, lease or transfer of all
or substantially all of the assets of the Company, or (c) a reorganization,
recapitalization, dissolution or liquidation of the Company. The Xxxxxxx
Trusts and Xxxxxxx shall not enter into any agreement or understanding with
any Person prior to the Expiration Date to vote in any manner inconsistent
herewith. In furtherance of the transactions contemplated hereby, on the
date hereof, the Xxxxxxx Trusts and Xxxxxxx will execute and deliver to
Parent an irrevocable proxy in the form of Exhibit A hereto (the "Proxy")
and irrevocably appoint Parent or its designees, its attorney-in-fact and
proxy to vote all of the Subject Securities to the extent provided in the
Proxy, with full power of substitution. The Xxxxxxx Trusts and Xxxxxxx
acknowledge that the Proxy (a) shall be coupled with an interest, (b)
constitutes, among other things, an inducement for Parent and Merger Sub to
enter into the Merger Agreement, and (c) shall be irrevocable and shall not
be terminated upon the occurrence of any event; provided that the Proxy
shall terminate upon the Expiration Date. The Xxxxxxx Trusts and Xxxxxxx
hereby revoke all other proxies and powers of attorney with respect to the
Subject Securities that they may have heretofore appointed or granted, and
no subsequent proxy or power of attorney shall be granted (and if granted,
shall not be effective) by the Xxxxxxx Trusts and/or Xxxxxxx with respect
thereto prior to the Expiration Date.
3. Further Agreements of the Xxxxxxx Trusts and Xxxxxxx.
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(a) The Xxxxxxx Trusts and Xxxxxxx hereby agree, while this
Agreement is in effect, and except as contemplated hereby, not to (i) sell,
transfer, pledge, hypothecate, encumber, assign or otherwise dispose of,
enforce or permit the execution of the provisions of any redemption
agreement with the Company or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, pledge, hypothecation, encumbrance, assignment or
other disposition of, the Subject Securities, or any interest in any of the
foregoing, except to Parent, or (ii) grant any proxies or powers of
attorney, deposit any of the Subject Securities into a voting trust or
enter into a voting agreement with respect to any of the Subject
Securities, or any interest in any of the foregoing, except to Parent or in
accordance with this Agreement.
(b) The Xxxxxxx Trusts and Xxxxxxx hereby irrevocably waive any
appraisal or dissenters rights that the Xxxxxxx Trusts and/or Xxxxxxx may
have in connection with the Merger.
(c) Neither the Xxxxxxx Trusts nor Xxxxxxx, nor any of their
respective partners, employees, agents, affiliates, accountants, counsel,
investment bankers, financial advisors or other representatives shall (i)
directly or indirectly, initiate, solicit or encourage, or take any action
to facilitate the making of, any Takeover Proposal, (ii) directly or
indirectly engage in any discussions or negotiations with, or provide any
information or data to or otherwise assist, facilitate or encourage, any
person (other than Parent) in connection with any Takeover Proposal or
(iii) approve any letter of intent, agreement in principle, acquisition
agreement or similar agreement relating to any Takeover Proposal. From and
after the date hereof, the Xxxxxxx Trusts and Xxxxxxx and all
representatives of the Xxxxxxx Trusts and Xxxxxxx shall cease any
activities with respect to the foregoing.
(d) Prior to or at the Effective Time, Xxxxxxx agrees to enter
into an agreement to terminate, as of the Effective Time, that certain
Shareholders Agreement, dated as of August 19, 1991, among Recovery Equity
Investors, L.P., the Company, Xxxxxxx and certain other parties (the
"Shareholders Agreement").
4. Representations and Warranties of Parent and Merger Sub.
Parent and Merger Sub hereby represent and warrant as follows:
(a) Organization and Good Standing. Parent and Merger Sub are
corporations duly organized, validly existing and in good standing under
the laws of the State of Delaware and Oklahoma, respectively.
(b) Authorization; Binding Agreement. Parent and Merger Sub each
have all requisite corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. This
Agreement, the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of each of Parent and Merger
Sub and by Parent in its capacity as sole stockholder of Merger Sub, and no
other corporate proceedings on the part of Parent or Merger Sub are
necessary to authorize the execution and delivery of this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by each of Parent and Merger Sub
and, assuming the due authorization, execution and delivery of this
Agreement by the Company, the Xxxxxxx Trusts and Xxxxxxx, constitutes the
legal, valid and binding agreement of Parent and Merger Sub, enforceable
against Parent and Merger Sub in accordance with its terms.
(c) No Conflicts. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby and compliance
by each of Parent and Merger Sub with any of the provisions hereof will not
(i) conflict with or result in any breach of any provision of the
certificates of incorporation or bylaws of Parent or Merger Sub, (ii)
require any Consent under or result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation or acceleration or
augment the performance required) under any of the terms, conditions or
provisions of any material obligation to which Parent or Merger Sub is a
party or by which any of them or any of their properties or assets may be
bound, (iii) result in the creation or imposition of any Lien upon any of
the assets of Parent or Merger Sub, or (iv) conflict with or violate any
applicable provision of any Law currently in effect to which Parent or
Merger Sub or any of their respective assets or properties are subject.
5. Representations and Warranties of the Xxxxxxx Trusts and
Xxxxxxx. The Xxxxxxx Trusts and Xxxxxxx hereby represent and warrant as
follows:
(a) Due Formation; Valid Existence. The Xxxxxxx Trusts have been
duly formed and are validly existing as trusts under the laws of the State
of Oklahoma pursuant to (i) the Xxxxxx Xxxxxxx Xxxxxxx, Xx. and Xxxxx Xxxxx
Xxxxxxx Charitable Remainder Unitrust Agreement, dated December 22, 1994,
by and between Xxxxxxx, Xxxxx Xxxxx Xxxxxxx, as trustors, and Xxxxxxx, as
trustee, (ii) the Xxxxxx Xxxxxxx Xxxxxxx, Xx. and Xxxxx Xxxxx Xxxxxxx
Charitable Remainder Unitrust II Agreement, dated December 21, 1998, by and
between Xxxxxxx and Xxxxx Xxxxx Xxxxxxx, as trustors, and Xxxxxxx, as
trustee, (iii) the Xxxxxx Xxxxxxx Xxxxxxx, Xx. Trust Agreement, dated
December 31, 1993, by and between Xxxxxxx, as settlor, and Xxxxxxx, as
trustee and (iv) the Xxxxxx X. Xxxxxxx, Xx. Trust Agreement, dated October
26, 1994, by and between Xxxxxx X. Xxxxxxx, Xx., as settlor, and Xxxxxx X.
Xxxxxxx, Xx., Swisher and Xxxxxxxx Xxxxx, as co-trustees, as amended by the
First Amendment to Xxxxxx X. Xxxxxxx, Xx. Trust Agreement, dated March 14,
1995 (collectively, the "Xxxxxxx Trust Agreements"). The Xxxxxxx Trust
Agreements remain in full force and effect.
(b) Authorization; Binding Agreement. The Xxxxxxx Trusts and
Xxxxxxx have all requisite power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This
Agreement, the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized and no other proceedings on the part of the Xxxxxxx
Trusts are necessary to authorize the execution and delivery of this
Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by Xxxxxxx and
the Xxxxxxx Trusts and, assuming the due authorization, execution and
delivery of this Agreement by Parent, Merger Sub and the Company,
constitutes the legal, valid and binding agreement of Xxxxxxx and the
Xxxxxxx Trusts, enforceable against Xxxxxxx and the Xxxxxxx Trusts in
accordance with its terms.
(c) No Conflicts. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby and compliance
by Xxxxxxx and the Xxxxxxx Trusts with any of the provisions hereof will
not (i) conflict with or result in any breach of any provision of the
Xxxxxxx Trust Agreements, (ii) require any Consent under or result in a
violation or breach of, or constitute (with or without due notice or lapse
of time or both) a default (or give rise to any right of termination,
cancellation or acceleration or augment the performance required) under any
of the terms, conditions or provisions of any material obligation to which
Xxxxxxx or the Xxxxxxx Trusts is a party or by which they or any of their
respective properties or assets may be bound, (iii) result in the creation
or imposition of any Lien upon any of the assets of Xxxxxxx or the Xxxxxxx
Trusts, or (iv) conflict with or violate any applicable provision of any
Law currently in effect to which Xxxxxxx or the Xxxxxxx Trusts or their
respective assets or properties are subject.
(d) Ownership of Securities; Voting Rights. Schedule 5(d) sets
forth a list of the Xxxxxxx Securities and the record owners thereof. The
Xxxxxxx Trusts are the record owners of the Xxxxxxx Securities. Xxxxxxx is
the beneficial owner of the Xxxxxxx Securities. Xxxxxxx, individually
and/or as a trustee of the Xxxxxxx Trusts, has the power to vote the
Subject Securities and no other person or entity may prevent or otherwise
restrict Xxxxxxx from voting the Subject Securities in accordance with this
Agreement. Except (i) pursuant to this Agreement and (ii) as otherwise
restricted pursuant to Section 3 of the Shareholders Agreement, the Xxxxxxx
Securities are not subject to any voting trust agreement or other contract,
agreement, arrangement, commitment or understanding restricting or
otherwise relating to the voting, dividend rights or disposition of the
Xxxxxxx Securities. The Other Securities are not subject to any voting
trust agreement or other contract, agreement, arrangement, commitment or
understanding restricting or otherwise relating to the voting, dividend
rights or disposition of the Other Securities that would prevent or
restrict the Xxxxxxx Trusts and Xxxxxxx from voting the Other Securities in
accordance with this Agreement.
(e) Good Title. Upon consummation of the Merger, Parent will
receive good, valid and marketable title to the Xxxxxxx Securities, free
and clear of all security interests, liens, claims, pledges, options,
rights of first refusal, agreements, limitations on Parent's voting rights,
charges and other encumbrances of any nature whatsoever.
(f) Finders and Investment Bankers. The Xxxxxxx Trusts and
Xxxxxxx have not employed any broker or finder or incurred any liability
for any brokerage fees, commissions or finders' fees in connection with the
transactions contemplated hereby.
6. Representations and Warranties of the Company. The Company
hereby represents and warrants as follows:
(a) Organization and Good Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Oklahoma.
(b) Authorization; Binding Agreement. The Company has all
requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This
Agreement, the execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby, have been duly and
validly authorized by the Board of Directors of the Company, and no other
corporate proceedings on the part of the Company are necessary to authorize
the execution and delivery of this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Company and, assuming the due authorization,
execution and delivery of this Agreement by Parent, Merger Sub, the Xxxxxxx
Trusts and Xxxxxxx, constitutes the legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms.
(c) No Conflicts. Except as set forth on the Company Disclosure
Schedule to the Merger Agreement, the execution and delivery of this
Agreement, the consummation by the Company of the transactions contemplated
hereby and compliance by the Company with any of the provisions hereof will
not (i) conflict with or result in any breach of any provision of the
Certificate of Incorporation or Bylaws, (ii) require any Consent under or
result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation or acceleration or augment the performance
required) under any of the terms, conditions or provisions of any Material
Contract or other material obligation to which the Company is a party or by
which it or any of its properties or assets may be bound, (iii) result in
the creation or imposition of any Lien upon any of the assets of the
Company, or (iv) conflict with or violate any applicable provision of any
Law currently in effect to which the Company or its assets or properties
are subject.
(d) Finders and Investment Bankers. Neither the Company nor any
of its officers or directors has employed any broker or finder or incurred
any liability for any brokerage fees, commissions or finders' fees in
connection with the transactions contemplated hereby (other than pursuant
to the agreements with Credit Suisse First Boston Corporation).
7. Termination. This Agreement shall terminate on the earlier of
(a) the Effective Time or (b) the termination of the Merger Agreement (the
date on which this Agreement terminates, the "Expiration Date").
8. Miscellaneous.
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8.1. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided that no party
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of the other parties hereto.
8.2. Amendments; No Waivers. Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by the Company, Parent and
Merger Sub, Xxxxxxx and the Xxxxxxx Trusts, or in the case of a waiver, by
the party against whom the waiver is to be effective.
8.3. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile or similar
writing) and shall be given,
if to Parent or Merger Sub, to:
Terex Corporation
000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxx X Xxxxx, Senior Vice President,
Secretary and General Counsel
Facsimile No.: (000) 000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxx, Esq.
Xxxxxx X. Xxxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
if to the Company, to:
CMI Corporation
X-00 & Xxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxxx, Senior Vice President, Treasurer
and Chief Financial Officer
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx
000 Xxxxxx X. Xxxx Xxx., Xxxxx 0000
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Xxxxxx Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
if to the Xxxxxxx Trusts and Xxxxxxx, to:
Xxxxxx X. Xxxxxxx, Xx.
0000 Xxxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
with a copy to:
Xxxxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx & Price
000 Xxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
or such other address or facsimile number as such party may hereafter
specify for the purpose by notice to the other parties. Each such notice,
request or other communication shall be effective (a) if given by
facsimile, when such facsimile is transmitted to the facsimile number
specified in this Section 8.3 and the appropriate facsimile confirmation is
received or (b) if given by any other means, when delivered at the address
specified in this Section 8.3.
8.4. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware, without
regard to principles of conflict of laws.
8.5. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, 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 so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such a determination, the parties shall
negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the fullest extent possible.
8.6. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument. This Agreement shall become effective when each party
hereto shall have received counterparts hereof signed by all of the other
parties hereto.
8.7. Fees and Expenses. Except as otherwise provided in the
Merger Agreement, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne by the
party incurring such expenses.
8.8. Jurisdiction. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby or
thereby may be brought in any federal or state court located in the State
of Delaware, and each of the parties hereby consents to the jurisdiction of
such courts (and of the appropriate appellate courts therefrom) in any such
suit, action or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such
court or that any such suit, action or proceeding which is brought in any
such court has been brought in an inconvenient forum. Process in any such
suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court.
8.9. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
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.
8.10. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
8.11. Specific Performance. Each party acknowledges and
agrees that the other party could be irreparably damaged in the event that
its obligations contained in this Agreement are not performed in accordance
with their specific terms or are otherwise breached in each case on or
prior to the Expiration Date. Accordingly, each party agrees that the other
party will be entitled to an injunction or injunctions to enforce
specifically any covenants in any action in any court having personal and
subject matter jurisdiction, in addition to any other remedy to which that
party may be entitled at law or in equity.
8.12. Shareholder Capacity. Nothing in this Agreement,
including without limitation Section 3(c) hereof, shall limit or restrict
Xxxxxxx in acting in his capacity as a director of the Company and
exercising his fiduciary duties and responsibilities, it being understood
that this Agreement shall apply to Xxxxxxx solely in his capacity as a
shareholder of the Company and shall not apply to Xxxxxxx'x actions,
judgments or decisions as a director of the Company.
IN WITNESS WHEREOF, the Company, Parent, Merger Sub and
Xxxxxxx have caused this Agreement to be duly executed as of the day and
year first above written.
TEREX CORPORATION
By: /s/ Xxxx X Xxxxx
------------------------------------
Name: Xxxx X Xxxxx
Title: Senior Vice President
CMI CORPORATION
By: /s/ Xxx X. Xxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxx
Title: Senior Vice President
CLAUDIUS ACQUISITION CORP.
By: /s/ Xxxx X Xxxxx
------------------------------------
Name: Xxxx X Xxxxx
Title: Vice President
XXXXXX XXXXXXX XXXXXXX, XX. & XXXXX
XXXXX XXXXXXX CHARITABLE
REMAINDER UNITRUST
By: /s/ Xxxxxx Xxxxxxx Xxxxxxx, Xx.
------------------------------------
Name: Xxxxxx Xxxxxxx Xxxxxxx, Xx.
Title: Trustee
XXXXXX XXXXXXX XXXXXXX, XX. & XXXXX
XXXXX XXXXXXX CHARITABLE
REMAINDER UNITRUST II
By: /s/ Xxxxxx Xxxxxxx Xxxxxxx, Xx.
------------------------------------
Name: Xxxxxx Xxxxxxx Xxxxxxx, Xx.
Title: Trustee
XXXXXX XXXXXXX XXXXXXX, XX. TRUST
By: /s/ Xxxxxx Xxxxxxx Xxxxxxx, Xx.
------------------------------------
Name: Xxxxxx Xxxxxxx Xxxxxxx, Xx.
Title: Trustee
XXXXXX XXXXXXX XXXXXXX, XX. TRUST
By: /s/ Xxxxxx Xxxxxxx Xxxxxxx, Xx.
------------------------------------
Name: Xxxxxx Xxxxxxx Xxxxxxx, Xx.
Title: Trustee
/s/ Xxxxxx Xxxxxxx Xxxxxxx, Xx.
------------------------------------
Xxxxxx Xxxxxxx Xxxxxxx, Xx.
SCHEDULE 5(d)
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Record Holder No. of Shares
-------------------------------------------------- ----------------------------
Xxxxxx Xxxxxxx Xxxxxxx, Xx. and Xxxxx Xxxxx 500,000
Xxxxxxx Charitable Remainder Unitrust u/t/a
dated 12/22/94
-------------------------------------------------- ----------------------------
Xxxxxx Xxxxxxx Xxxxxxx, Xx. and Xxxxx Xxxxx 100,000
Xxxxxxx Charitable Remainder Unitrust II u/t/a
dated 12/21/98
-------------------------------------------------- ----------------------------
Xxxxxx Xxxxxxx Xxxxxxx, Xx. Trust u/t/a dated 1,466,434
12/31/93
-------------------------------------------------- ----------------------------
Xxxxxx X. Xxxxxxx, Xx. Trust u/t/a dated 449
10/26/94, as amended
-------------------------------------------------- ----------------------------
EXHIBIT A
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IRREVOCABLE PROXY
-----------------
Pursuant to the Voting Agreement, dated as of June 27, 2001,
among Terex Corporation, a Delaware corporation ("Parent"), Claudius
Acquisition Corp., an Oklahoma corporation and a direct wholly owned
subsidiary of Parent ("Merger Sub"), CMI Corporation, an Oklahoma
corporation (the "Company"), and the undersigned (the "Voting Agreement"),
the undersigned hereby irrevocably appoints, subject to the proviso to this
sentence, designees of Parent, the attorneys, agents and proxies, with full
power of substitution, for the undersigned and in the name, place and stead
of the undersigned to vote in such manner as such attorneys, agents and
proxies or their substitutes shall in their sole discretion deem proper and
otherwise act, including the execution of written consents, with respect to
all voting securities (the "Securities") of the Company, which the
undersigned is or may be entitled to vote with respect to the Specified
Issues (as defined below), whether such vote shall take place at an annual
or special meeting of the Company or whether or not at an adjourned or
postponed meeting, or in respect of which the undersigned is or may be
entitled to act by written consent; provided, however, that (a) with
respect to any of the actions described in clause (i) of the next
succeeding sentence, such designees (and any substitutes thereof) are so
appointed only to vote in favor of any such actions, and (b) with respect
to any of the actions described in clause (ii) of the next succeeding
sentence, such designees (and any substitutes thereof) are so appointed
only to vote against any such actions. For purposes hereof, "Specified
Issues" shall mean a vote concerning (i) the adoption and approval of the
Agreement and Plan of Merger dated as of June 27, 2001 among Parent, the
Company and Merger Sub (the "Merger Agreement") and the merger pursuant
thereto and approval of the terms thereof and each of the other actions
contemplated by the Merger Agreement and (ii) any of the following actions
(other than the Merger and the transactions contemplated by the Merger
Agreement): (a) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company; and (b)
a sale, lease or transfer of all or substantially all of the assets of the
Company, or a reorganization, recapitalization, dissolution or liquidation
of the Company. This Proxy is coupled with an interest and shall be
irrevocable and binding on any successor in interest of the undersigned.
This Proxy shall operate to revoke any prior proxy as to the Securities
heretofore granted by the undersigned. This Proxy shall be effective as of
the date of the Voting Agreement and shall terminate upon the Expiration
Date (as defined in the Voting Agreement).
