EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
by and among
TEREX CORPORATION
and
SDC PRAGUE, S.R.O.
Dated as of August 28, 2003
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TABLE OF CONTENTS
Page
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1. Definitions............................................................1
2. Registration Rights....................................................2
3. Conditions and Limitations.............................................3
4. Registration Procedures................................................4
5. Indemnification and Contribution.......................................5
6. Registration Expenses..................................................7
7. Miscellaneous..........................................................7
7.1. Termination.....................................................7
7.2. No Waivers; Amendments..........................................7
7.3. Notices.........................................................7
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
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of August 28, 2003, by and among Terex Corporation, a
Delaware corporation (the "Company") and SDC Prague, S.R.O., a company
organized under the laws of the Czech Republic ("SDC Prague").
WHEREAS, this Agreement is made pursuant to the Stock Purchase
Agreement, dated as of August [28], 2003, by and among the Company, GP
Omikron, S.R.O., and SDC Prague, dated as of the date hereof (the "Stock
Purchase Agreement"); and
WHEREAS, pursuant to the Stock Purchase Agreement, SDC Prague
will receive shares of Common Stock (as defined below) of the Company.
NOW, THEREFORE, 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.
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As used in this Agreement, the following terms shall have the
following meanings:
"Agreement" has the meaning set forth in the recitals hereof.
"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.
"Closing Date" shall have the meaning ascribed to it in the Stock
Purchase Agreement.
"Common Stock" means the common stock, par value $0.01 per share,
of the Company.
"Company" has the meaning set forth in the preamble.
"Competition Office Approval Date" means the date on which (A)
the Office of the Protection of the Economic Competition of the Czech
Republic (the "Czech Competition Office") shall have issued a final
decision (pravomocne rozhodnuti) permitting the TATRA Share Transfer, (B)
the relevant waiting period with regard to the Czech Competition Office
shall have expired without the Czech Competition Office prohibiting the
TATRA Share Transfer, or (C) the Czech Competition Office shall have
decided that the TATRA Share Transfer is not subject to its approval and
the Purchaser shall have received a letter confirming that no such approval
is required to carryout the TATRA Share Transfer.
"Delay Period" has the meaning set forth in Section 3(c) hereof.
"Effectiveness Period" has the meaning set forth in Section 2.2
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"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.
"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 430(A), as amended
or supplemented by any prospectus supplement, with respect to the terms of
the offering of any portion of the Registrable Securities 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.
"Registrable Securities" means the shares of Common Stock to be
issued to SDC Prague pursuant to the Stock Purchase Agreement, including
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 of Common Stock
(x) a Registration Statement covering such shares of Common Stock has been
declared effective under the Securities Act and such shares of Common Stock
have been disposed of pursuant to such effective registration statement
under the Securities Act, or (y) such shares of Common Stock 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 12 of the Stock
Purchase Agreement upon such sale.
"Registration Statement" shall have the meaning set forth in
Section 2.1(a) hereof.
"SDC Prague" has the meaning set forth in the preamble.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Stock Purchase Agreement" has the meaning set forth in the
recitals hereof.
"TATRA Share Transfer" shall have the meaning ascribed to it in
the Stock Purchase Agreement.
2. Registration Rights.
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2.1. Shelf Registration. Subject to the conditions set forth in
Section 3 hereof, the Company shall, as soon as practicable but in any
event by the later of (x) 30 days after the Closing Date and (y) the
Competition Office Approval Date, file a registration statement under the
Securities Act relating to the Registrable Securities, which registration
statement provides for the sale by SDC Prague of Registrable Securities
from time to time on a delayed or continuous basis pursuant to Rule 415
under the Securities Act (the "Registration Statement"). The Company shall
use commercially reasonable efforts to cause the Registration Statement to
be declared effective as soon as practicable following such filing. The
Company hereby represents and warrants that, as of the date hereof, the
Company meets the requirements for use of Form S-3 for registration of the
resale of Registrable Securities and does not have any actual knowledge of
any fact which would reasonably result in its not meeting such
requirements.
2.2. Effectiveness Period. 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 Securities for a period ending on the earlier of (i) the
first anniversary of the Closing Date (such date to be extended by the
number of days beginning on the date the Company gives notice to SDC Prague
of any Delay Period (defined below) to and including the date on which SDC
Prague receives notice from the Company of the reinstatement of
effectiveness of the Registration Statement); and (ii) the date on which
Registrable Securities are no longer owned by SDC Prague or SDC
International (the "Effectiveness Period").
3. Conditions and Limitations.
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Notwithstanding anything herein to the contrary, SDC Prague
agrees:
(a) 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 (i) (A) 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 (B) 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 (ii) the
disclosure otherwise relates to a pending material business transaction
which has not yet been publicly disclosed. If the Company suspends the
effectiveness of a Registration Statement, the Company shall promptly
provide notice (to the extent practicable) to SDC Prague of such Delay
Period. In addition, the Company shall promptly provide notice to SDC
Prague of the reinstatement of effectiveness of the Registration Statement.
The holders of Registrable Securities shall cease all disposition efforts
with respect to Registrable Securities held by them immediately upon the
beginning of any Delay Period until notified of the end of such Delay
Period. The Company hereby represents and warrants that, as of the date
hereof, no business transaction of the type referred to in subsection (ii)
above exists or is pending.
(b) SDC Prague shall not, during the period starting with
the Company's date of filing of, and ending 120 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, SDC Prague shall not effect any public sale or
distribution of any of the Registrable Securities 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.
(c) SDC Prague acknowledges and agrees that no Registrable
Securities may be included in the Registration Statement pursuant to this
Agreement unless and until SDC Prague furnishes to 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;
4. Registration Procedures.
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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 commercially
reasonable efforts to effect such registration to permit the sale of such
Registrable Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall as
expeditiously as possible:
(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 SDC Prague 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) 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 Securities for sale
in any jurisdiction in the United States;
(c) if requested by SDC Prague, furnish to counsel for SDC
Prague, 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 SDC Prague may reasonably request in
order to facilitate the disposition of the Registrable Securities covered
by the Registration Statement in conformity with the requirement of the
Securities Act (the Company hereby consenting to such use of such
documents);
(d) except during any Delay Period described in Section 3
above, upon the occurrence of any event contemplated by Sections 3(a)(i)(A)
or 3(a)(ii) 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 Securities 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;
(e) cause all Registrable Securities 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; and
(f) 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 Securities.
5. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each holder
of Registrable Securities, 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 holder of Registrable Securities, 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 Prospectus 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. Notwithstanding anything to the
contrary in this Agreement, any and all payments by all holders of
Registrable Securities, collectively, pursuant to this Section 5 shall be
limited to, in the aggregate, an amount equal to the proceeds from the sale
thereof.
(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 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 (i) the indemnifying party has
agreed to pay such fees and expenses or (ii) 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 Securities under this Section 5 shall be in addition to any
liability that such Persons may otherwise have.
6. Registration Expenses.
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Except as provided in the last sentence of this Section 6
and except as provided in Section 5, 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, SDC Prague will be
responsible for, if applicable, underwriters discounts, selling commissions
and fees and disbursements of counsel for SDC Prague with respect to the
Registrable Securities being sold by it and the Company will have no
obligation to pay any such amounts.
7. Miscellaneous.
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7.1. Termination. This Agreement and the obligations of the
Company hereunder shall terminate on the first date on which no Registrable
Securities 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.
(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):
(a) if to SDC Prague, initially at SDC Prague, S.R.O., c/o
SDC International, Inc., 00 Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000 with a
copy to Xxxxxx, Xxxxx Naftalis & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, Esq.; and
(b) if to the Company, initially at Terex Corporation, 000
Xxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxx X Xxxxx, Esq.,
with a copy to Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxxxxxx, 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, including without limitation, subsequent holders of Registrable
Securities. If any Person shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, but in compliance with
the Securities Act, such transferee shall promptly notify the Company and
such Registrable Securities acquired from such Person shall be held subject
to all of the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be entitled to receive the
benefits of and be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement. Any such
successor or assign shall agree in writing to acquire and hold the
Registrable Securities acquired from such Person subject to all of the
terms hereof.
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.
7.6. 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.
7.7. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without
giving effect to the principles of conflicts of law. Each of the parties
hereto hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the courts of the State of New York and of the
United States of America, in each case located in the County of New York,
for any litigation arising out of or relating to this Agreement and the
transactions contemplated hereby (and agrees not to commence any litigation
relating thereto except in such courts), and further agrees that service of
any process, summons, notice or document by U.S. registered mail to its
respective address set forth in this Agreement, or such other address as
may be given by one or more parties to the other parties in accordance with
the notice provisions of Section 7.3, shall be effective service of process
for any litigation brought against it in any such court. Each of the
parties hereto hereby irrevocably and unconditionally waives any objection
to the laying of venue of any litigation arising out of this Agreement or
the transactions contemplated hereby in the courts of the State of New York
or the United States of America, in each case located in the County of New
York, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such litigation brought in
any such court has been brought in an inconvenient forum.
7.8. 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.
7.9. 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.
7.10. Entire Agreement. This Agreement constitutes the entire
agreement and understanding among the parties hereto relating to the
subject matter hereof and supersedes any and all prior agreements and
understandings among or between the parties, both written or oral, relating
to the subject matter hereof.
7.11. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
TEREX CORPORATION
By: /s/ Xxxx X Xxxxx
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Name: Xxxx X Xxxxx
Title: Senior Vice President
SDC PRAGUE, S.R.O.
By: /s/ Edita Stedra
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Name: Edita Stedra
Title: Executive
