EXHIBIT 10.3
SHAREHOLDERS' AGREEMENT
between
Bucyrus Holdings GmbH
and
HMS Hamburg Trust GmbH
Dated
December 16, 2006
Table of Contents
Exhibits ................................................................... 3
Definitions ................................................................ 4
Preamble ................................................................... 5
1. Articles of Association .............................................. 6
2. Corporate Bodies of the Company ...................................... 6
3. Shareholdings in the Company ......................................... 6
4. Shareholders' Meeting ................................................ 7
5. Management Board ..................................................... 8
6. Disposition of Shares in the Company ................................. 9
7. Redemption of Class A Share .......................................... 10
8. Financing of the Company; Pledges .................................... 11
9. Right of Inspection .................................................. 12
10. Profit and Loss Transfer Agreements .................................. 12
11. Delivery of Confirmations ............................................ 12
12. Forward Purchase ..................................................... 13
13. Voting in DBT, Merger ................................................ 13
14. Term and Termination ................................................. 14
15. Confidentiality and Public Announcements ............................. 14
16. Notices .............................................................. 15
17. Costs ................................................................ 16
18. Miscellaneous ........................................................ 16
2
Exhibits
Exhibit 1 Articles of Association
Exhibit 12 Forward Purchase Agreement
Exhibit 13.1.4 R&D Agreement
3
Definitions
Acquisition Financing ..................................................... 9
Agreement ................................................................. 6
Articles of Association ................................................... 6
Bucyrus ................................................................... 5
Business Days ............................................................. 15
Class A Share ............................................................. 6
Class B Share ............................................................. 6
Company ................................................................... 5
Compensation .............................................................. 10
DBT ....................................................................... 5
Forward Purchase Agreement ................................................ 12
Hamburg Trust ............................................................. 5
HT Interest ............................................................... 6
Management Board .......................................................... 6
Professor Xx. Xxxxxxx'x Confirmation ...................................... 12
Purchaser's Confirmation .................................................. 11
R&D Agreement ............................................................. 12
RCI ....................................................................... 5
Shareholder ............................................................... 5
Shareholders .............................................................. 5
Shareholders' Meeting ..................................................... 6
Social Charter ............................................................ 7
SPA ....................................................................... 5
Transaction ............................................................... 5
Transferee ................................................................ 9
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SHAREHOLDERS' AGREEMENT
By and between
1. Bucyrus Holdings GmbH, c/o Rechtsanwalte Freshfields Bruckhaus
Xxxxxxxx, Xxxxxxxxxxxxxx 0, 00000 Xxxxxxxxxx,
- "Bucyrus" -
2. HMS Hamburg Trust GmbH (currently still operating under the name of
,,Ad acta" 676. Vermogensverwaltungsgesellschaft mbH),
Xxxxxxxxxxx(xxxx)x 0, 00000 Xxxxxxx,
- "Xxxxxxx Trust" -
- Bucyrus and Hamburg Trust hereinafter individually, a "Shareholder"
and collectively, the "Shareholders" -
Preamble
A. WHEREAS, the Shareholders established a limited liability company
(Gesellschaft mit beschrankter Haftung) pursuant to German law,
registered with the commercial register (Handelsregister) maintained
at the local court (Amtsgericht) of Dusseldorf, Germany, under the
name DBT Holdings GmbH (the "Company") under registration number HRB
55323. The Shareholders are the sole shareholders of the Company and
participate in the share capital (Stammkapital) of the Company as
follows:
--------------------------------------------------------------------
Nominal amount of share in EUR Share in %
--------------------------------------------------------------------
Bucyrus 24,950 49.9
--------------------------------------------------------------------
Hamburg Trust 25,050 50.1
--------------------------------------------------------------------
TOTAL 50,000 100
--------------------------------------------------------------------
B. WHEREAS, by virtue of a share purchase agreement (the "SPA")
between, inter alia, the Company and RAG Coal International
Aktiengesellschaft ("RCI") the Company will acquire all shares in
DBT GmbH, a corporation organized under the laws of Germany as
limited liability company (GmbH) and registered with the commercial
register maintained at the local court of Dortmund under HRB 17120
("DBT") from RCI (the "Transaction");
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C. WHEREAS, in order to regulate their internal relationship as
shareholders of the Company, the Shareholders intend to enter into
this shareholders' agreement including its exhibits (the
"Agreement").
Now, therefore, the Parties agree as follows:
1. Articles of Association
If any provisions of the Articles of Association (Satzung) of the
Company (the "Articles of Association") which are attached hereto as
Exhibit 1 at any time conflict with any provisions of this
Agreement, the provisions of this Agreement shall, as far as legally
permitted, prevail and the Shareholders shall exercise all rights
conferred upon them to procure the amendment of the Articles of
Association to the extent necessary to permit the Company and its
affairs to be administered as provided for in this Agreement.
2. Corporate Bodies of the Company
2.1 Corporate Bodies. The Company shall have the following corporate
bodies:
2.1.1 the "Shareholders' Meeting" (Gesellschafterversammlung); and
2.1.2 the "Management Board" (Geschaftsfuhrung).
2.2 Employee Co-determination. It is the Shareholders' understanding
that the Company will not be subject to employee co-determination
(Arbeitnehmermitbestimmung).
3. Shareholdings in the Company
3.1 Shareholdings. The only shareholders in the Company shall be Bucyrus
and Hamburg Trust.
3.2 Categories of Shares. The Articles of Association shall provide for
two categories of shares in the Company: The share to be subscribed
by Hamburg Trust (the "HT Interest") shall be qualified as A-class
share (the "Class A Share"), the share to be subscribed by Bucyrus
shall be qualified as B-class share (the "Class B Share").
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3.3 Class A Share. The Class A Share shall confer upon its holder no
voting rights and shall not entitle its holder to dividend rights.
The participation of the Class A Share in liquidation proceeds shall
be limited to a maximum amount of EUR 8,000,000. The Class A Share
shall confer upon its holder the consent rights described in Section
4.3 and 8.3 and such other rights attached to such share under
applicable mandatory law and the Articles of Association.
3.4 Class B Share. The Class B Share shall confer upon its holder such
rights as if it were the owner of shares conferring 100 % of the
voting rights subject only to the limitations resulting from the
stipulations contained in Section 4.3 and applicable mandatory
statutory laws. The holder of the Class B Share shall have the sole
right to resolve or to have resolved any distribution of dividends
of DBT or the Company.
4. Shareholders' Meeting
4.1 Matters for Shareholders' Meeting. Except as otherwise provided for
in this Agreement or by applicable law, the Shareholders' Meeting
shall determine all matters concerning the Company, including but
not limited to the matters listed in ss. 46 of the German Limited
Liability Company Act (Gesetz betreffend die Gesellschaften mit
beschrankter Haftung). In particular, but not limited to, the
Shareholders' Meeting shall resolve upon the following matters:
4.1.1 amendments to the Articles of Association;
4.1.2 establishment of and any amendments to the Rules of
Procedure for the Management Board (as defined below);
4.1.3 consent to the annual financial statements (Feststellung
des Jahresabschlusses) and the appropriation of the profit
(Gewinnverwendung) of the Company;
4.1.4 consent to the annual business plan (Geschaftsplan) of the
Company including an operating budget;
4.1.5 dissolution (Auflosung) of the Company;
4.1.6 continuation of the dissolved Company;
4.1.7 consent to the disposition of shares in the Company; and
4.1.8 acts under the German Reorganization Act
(Umwandlungsgesetz).
4.2 Voting Right. Subject to Sections 3.3 and 4.3 the Shareholders agree
to exercise their influence on the Company exclusively through the
Shareholders' Meeting.
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4.3 Consent Rights for Class A Share. Bucyrus may not exercise its
voting right and adopt resolutions without the prior consent of
Hamburg Trust with respect to the following matters:
4.3.1 any action by the Company or DBT that would result in a
breach of or deviation from the Social Charter (as set out
in Section 15.2 of the SPA), (the "Social Charter") as in
force from time to time. For the avoidance of doubt, this
Section 4.3.1 shall include, without limitation, any
shareholders' resolutions consenting to acts to be taken by
the managing directors of the Company which would result in
a breach of or deviation from the Social Charter;
4.3.2 any amendments to the Articles of Association of the
Company or DBT to the extent such amendments relate to the
Social Charter; and
4.3.3 any amendments to the Articles of Association of the
Company to the extent that such amendments adversely affect
the rights of Hamburg Trust as holder of the Class A Share.
4.4 Majority Requirements. Unless otherwise provided for by mandatory
law the Shareholders' Meeting shall take all decisions with the
majority of the votes cast.
4.5 Procedures. To the extent permitted by law, Shareholders'
resolutions may be passed without convening and holding a
Shareholders' Meeting in writing, by facsimile or by
telecommunication (e.g. by conference call or video conference) if
Bucyrus gives its consent and approval to such procedure and the
information and participation rights of Hamburg Trust are met.
4.6 Rules and Regulations. Bucyrus as Shareholder with the prior written
consent by Hamburg Trust may establish such rules and regulations
for the conduct of the Shareholders' Meetings, as it deems necessary
or advisable, except insofar as any such rules and regulations would
be inconsistent with the provisions of applicable law, the Articles
of Association or this Agreement.
4.7 Change of Seat. It is currently intended that the Shareholders'
Meeting will resolve in due course on a change of the Company's
registered seat from Dusseldorf to Essen.
5. Management Board
5.1 Managing Directors. The Management Board of the Company shall
consist of [two] managing directors (Geschaftsfuhrer) who in each
case shall have the power to represent the Company individually and
who shall be exempted from the limitations of ss. 181 of the German
Civil Code (Burgerliches Gesetzbuch) except as resolved otherwise by
the Shareholders' Meeting. The managing directors of the Company
shall be
8
appointed and their appointment shall be revoked exclusively by
Bucyrus. For the avoidance of doubt, Hamburg Trust shall not have
voting rights with regard to the appointment or the removal of any
managing director and to their power to represent the Company.
5.2 Scope of Responsibilities. The managing directors shall conduct the
day-to-day operations of the Company and, notwithstanding their
legally unlimited authority to bind the Company towards third
parties, shall observe the general and individual instructions
issued by the Shareholders' Meeting.
6. Disposition of Shares in the Company
6.1 Transfer Restrictions. Prior to the closing of the Forward Purchase
Agreement (as defined below), the Shareholders mutually agree that
neither Bucyrus nor Hamburg Trust shall transfer (except as
otherwise provided explicitly in this Section 6), the whole or part
of its respective shareholding in the Company (or DBT after merger)
to any third party. Bucyrus is entitled to transfer the Class B
Share in full or in part to any affiliate of Bucyrus within the
meaning of Section 15 of the German Stock Corporation Act (AktG) if
such affiliate undertakes vis-a-vis Hamburg Trust to adhere to this
Agreement, assume and comply with any obligation of Bucyrus under
this Agreement; Section 7.2 last sentence shall apply mutatis
mutandis with respect to the obligations of the transferee. The
Shareholders may not pledge or create an encumbrance other than (i)
in the case of Hamburg Trust for the benefit of Bucyrus (which may
be subordinated according to Section 3.4 of the Forward Purchase
Agreement) and (ii) in the case of Bucyrus and Hamburg Trust under
the financing made available for the purpose of financing the shares
in DBT or any refinancing thereof (the "Acquisition Financing") over
the whole or part of their shareholdings. Bucyrus shall indemnify
Hamburg Trust for, and shall hold Hamburg Trust harmless from, any
and all liabilities that may result from the breach of applicable
provisions regarding the maintenance of the share capital of the
Company and repayment of any share capital, including pursuant to
Sections 30, 31 GmbHG if and to the extent such breach (i) results
in a benefit of Bucyrus, any affiliate of Bucyrus within the meaning
of section 15 of the German Stock Corporation Act (AktG) or any
third party being attributed to Bucyrus or any of its affiliates or
(ii) has been initiated by Bucyrus without Hamburg Trust's consent.
6.2 Change of Control in Company or Hamburg Trust. If at any time after
the Signing of the Transaction and until the Closing of the
Transaction, (i) the Class A Share is no longer held by Hamburg
Trust, (ii) Professor Xx. Xxxxxxxx X. Xxxxxxx is no longer able to
exercise his all rights as shareholder of Hamburg Trust (e.g. in
case of legal incapacity - Geschaftsunfahigkeit) or no longer the
sole shareholder of Hamburg Trust or no longer holds the shares in
Hamburg Trust for his own benefit and account free of any
entitlements or rights of any third parties other than security
interests approved and requested by the Company or (iii) Professor
Xx. Xxxxxxxx X. Xxxxxxx is no longer
9
able to act as managing director of Hamburg Trust or not longer
acting as the sole managing director of Hamburg Trust irrevocably
appointed until and including the Forward Purchase Closing Date (as
defined in the Forward Purchase Agreement) with no intention of his
dismissal or resignation or (iv) Hamburg Trust has any further
operations or assets other than the Class A Share or has any further
business purpose other than to hold the Class A Share, the Company
is required under the SPA to inform RCI in writing about those
changes without undue delay. Hamburg Trust undertakes to provide the
Company this information without undue delay and Bucyrus and Hamburg
Trust shall instruct the managing directors of the Company to convey
the information to RCI in accordance with the terms of the SPA.
Upon receipt of such information, RCI may prior to the Closing of
the Transaction request the sale and transfer of the Class A Share
to RCI or such third party as RCI and Bucyrus jointly designate in
writing as acquirer of the Class A Share (RCI or such third party
the "Transferee", Section 7.1.7 SPA). In case any event as described
in the first sentence of this subpara. of Section 6.2 occurs Bucyrus
is entitled to demand from Hamburg Trust and Hamburg Trust hereby
irrevocably agrees that Hamburg Trust shall sell and transfer the
Class A Share to the Transferee. The foregoing is an agreement for
the benefit of RCI in the meaning of Sec. 328 BGB (echter Vertrag
zugunsten Dritter).
7. Redemption of Class A Share
7.1 Redemption provision. The Articles of Association shall provide for
the right of the Company to redeem the Class A Share. Such
redemption shall only be possible with prior written consent of
Hamburg Trust except in the following cases:
7.1.1 The Class A Share is partly or fully seized by one or more
creditors of Hamburg Trust other than Bucyrus and its
affiliated companies within the meaning of ss. 15 German
Stock Corporation Act (AktG); or
7.1.2 Insolvency or similar proceedings are instituted in
relation to the assets of Hamburg Trust or the institution
of such proceedings is applied for by Hamburg Trust or
refused for reason of the lack of assets; or
7.1.3 Hamburg Trust files a petition for judicial dissolution of
or declares withdrawal from the Company.
Hamburg Trust hereby irrevocably consents to a redemption of the
Class A Share if (i) any of the Assignment Conditions set forth in
Section 5.2 of the Forward Purchase Agreement is fulfilled and (ii)
the Forward Purchase Price according to the Forward Purchase
Agreement has not been paid to Hamburg Trust prior to the execution
of the redemption right by a corresponding written declaration of
the Company's managing directors.
7.2 Redemption compensation. If and to the extent the Class A Share is
redeemed Hamburg Trust shall be entitled to a compensation (the
"Compensation") which equals
10
the amount of the purchase price under the Forward Purchase
Agreement (as defined below). Bucyrus herewith irrevocably and
unconditionally guarantees within the meaning of a guarantee
pursuant to Section 311 para. 0 XXX xxx-x-xxx Xxxxxxx Trust that the
Company will fulfill its obligations under this Section 7 as if
Bucyrus were the primary obligor. The guarantee set forth in this
Section 7.2 is a continuing guarantee and shall remain in force and
in fact until the Company has performed and discharged all of its
respective obligations.
7.3 Execution of redemption right. If any of the Assignment Conditions
set forth in (v) of Section 5.2 of the Forward Purchase Agreement
turns out to be incorrect before the Closing set forth in the SPA
has been completed, the Company shall only exercise the redemption
right according to its Articles of Association without the prior
written consent of Hamburg Trust if and when RCI has not exercised
its rights to request a transfer of the Class A Share according to
Section 7.1.7 of the SPA up to the completion of such Closing.
8. Financing of the Company; Pledges
8.1 Initial Financing. The Company shall be initially financed by
capital contributions (Stammeinlagen) of the Shareholders as
described in lit. A of the Preamble.
8.2 Subsequent Financing. Hamburg Trust shall not be obliged to
contribute any additional funds to the Company regardless whether as
equity or debt or under any other instrument. Bucyurs shall be free
to decide on how to finance the Company.
8.3 Pledges. Upon request by Bucyrus, Hamburg Trust shall cooperate to
the fullest extent possible to pledge the Class A Share in relation
to the Acquisition Financing or in case of any refinancing of the
Acquisition Financing provided, however, that any liability of
Hamburg Trust under such pledge shall be limited to the Class A
Share. In the event any security interest created hereunder is
enforced or affects the execution and completion of the transactions
contemplated under the Forward Purchase Agreement (including the
redemption of the Class A Share in lieu of its sale and transfer)
Bucyrus shall pay to Hamburg Trust the amount of the purchase price
under the Forward Purchase Agreement.
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9. Right of Inspection
Up to 2 authorized representatives of each Shareholder shall have
the right to review the books and records of the Company in
accordance with ss. 51a of the Germany Law Pertaining to Companies
with Limited Liability (GmbHG).
10. Profit and Loss Transfer Agreements
Hamburg Trust agrees herewith to the conclusion of (i) a profit and
loss transfer agreement, a domination agreement or other enterprise
agreements within the meaning of Sections 291 et seq. of the German
Stock Corporation Act (AktG) between DBT and the Company, (ii) a
profit and loss transfer agreement, a domination agreement or other
enterprise agreements within the meaning of Sections 291 et seq. of
the German Stock Corporation Act (AktG) between the Company and
Bucyrus and (iii) to a change of DBT's financial year upon request
of Bucyrus.
11. Delivery of Confirmations
11.1 Confirmation of the Company. The SPA provides that at the Closing
(as defined in the SPA) of the Transaction the Company shall deliver
to RCI a written statement executed by Hamburg Trust and Bucyrus
confirming that (i) as of the Closing the HT Interest is held by
Hamburg Trust and (ii) that this Agreement is in full force and
effect until the consummation of the Forward Purchase Execution Date
(as defined in the Forward Purchase Agreement; such statement shall
be referred to as the "Purchaser's Confirmation"). The Shareholders
agree to duly execute the Purchaser's Confirmation and to instruct
the managing directors of the Company to provide RCI with the
Purchaser's Confirmation at the Closing of the Transaction.
11.2 Confirmation of Xxxx. Xxxxxxx. The SPA provides that at the Closing
of the Transaction RCI shall deliver to the Company a written
statement executed by Professor Xx. Xxxxxxxx X. Xxxxxxx that (i)
Professor Xx. Xxxxxxxx X. Xxxxxxx (x) is the sole shareholder of
Hamburg Trust, (y) is able to exercise his rights as shareholder of
Hamburg Trust (which is, for example, not true in case of legal
incapacity - Geschaftsunfahigkeit), (z) he personally holds the
shares in Hamburg Trust for his own benefit and account free of any
third party entitlements or rights other than security interests
approved and requested by the Purchaser, (ii) Prof. Xx. Xxxxxxxx X.
Xxxxxxx is (x) able to act as managing director of Hamburg Trust and
(y) the sole managing director of Hamburg Trust irrevocably
appointed until and including the Forward Purchase Closing Date (as
defined in the Forward Purchase Agreement) with no intention of his
12
dismissal or resignation and (iii) Hamburg Trust has no operations
or assets other than the HT Interest and has no business purpose
other than to hold the HT Interest (the "Professor Xx. Xxxxxxx'x
Confirmation"). Hamburg Trust undertakes to provide RCI with the
Professor Xx. Xxxxxxx'x Confirmation in order to put RCI in the
position to deliver the Professor Xx. Xxxxxxx'x Confirmation to the
Company at the Closing of the Transaction. The foregoing is an
agreement for the benefit of RCI in the meaning of Sec. 328 BGB
(echter Vertrag zugunsten Dritter).
12. Forward Purchase
On the date hereof, Hamburg Trust and Bucyrus enter into a share
purchase agreement by which the Class A Share is sold and
transferred from Hamburg Trust to Bucyrus under conditions specified
in more detail in such share purchase agreement (the "Forward
Purchase Agreement"). The Forward Purchase Agreement is attached
hereto as Exhibit 12.
13. Voting in DBT, Merger
13.1 Voting in DBT. The Shareholders are in agreement that the managing
directors shall exercise their voting rights in the shareholders'
meeting of DBT on behalf of the Company as the sole shareholder of
DBT to ensure the following:
13.1.1 The supervisory board of DBT shall be composed of twelve
individuals, four of which shall be elected by the
employees and eight of which shall be nominated by Bucyrus
and elected by the Shareholders' meeting of DBT (one of
whom shall initially be Xx. Xxxxxx Xxxxxxxxxxx (who shall
be the initial chairman), or in the event of his
resignation, removal or incapacity, an individual
designated by Bucyrus, who shall be the chairman). The
chairman of the supervisory board shall have a casting vote
in case of a deadlock.
13.1.2 The managing directors of DBT shall be appointed and their
appointment shall be revoked exclusively by Bucyrus and in
each case only after prior consultation with (but not the
consent of) the chairman of the supervisory board. The
managing directors shall initially be Xxxxxxx X. Xxxx
(CEO), Xxxx xx Xxxx (CFO) and Xxxxxxx Xxxxxxx (HR-Director
- Arbeitsdirektor).
13.1.3 The provisions of the Social Charter shall be fulfilled by
DBT.
13.1.4 The advisory agreement between DBT and Coal & Minerals GmbH
(the "R&D Agreement") as attached as Exhibit 13.1.4 by DBT
shall be fulfilled in accordance with its terms.
13
13.2 Application of Agreement after Merger. If at any time during the
term of this Agreement the Company is merged into DBT the agreements
and commitments set forth in this Agreement shall apply mutatis
mutandis and the Shareholders undertake to take all necessary steps
and actions to create a similar shareholders' agreement for the
merged entity.
14. Term and Termination
14.1 Term and Termination. This Agreement shall become valid upon being
duly notarized. The Agreement shall terminate upon occurrence of the
earlier of
(i) the closing of the Forward Purchase Agreement; or
(ii) the tenth anniversary of the date of this Shareholders'
Agreement.
14.2 Survival. In case of a termination of this Agreement, for whatever
reason, the provisions contained in Sections 15, 16, 17 and 18 shall
survive.
15. Confidentiality and Public Announcements
15.1 Confidentiality in relation to DBT Group. Hamburg Trust shall keep
the knowledge about DBT and its affiliated companies within the
meaning of Sec. 15 German Stock Corporation Act (AktG) and their
business operation strictly confidential.
15.2 Confidentiality in relation to this Agreement and the Parties. The
Parties shall keep the knowledge obtained in connection with the
negotiations and execution of this Shareholders' Agreement with
respect to this Shareholders' Agreement, the transactions
contemplated herein and the other Party and their Affiliates
strictly confidential.
15.3 Announcements. Each of the Parties undertakes that it will not make
an announcement in connection with this Shareholders' Agreement
unless (i) such announcement or other disclosure is required by
applicable law, legal process or any applicable stock exchange
(NASDAQ) rule or regulation, or (ii) the timing and content of an
announcement or other disclosure regarding this Shareholders'
Agreement has been preceded by the written consent of the respective
other Party (which may be granted or withheld in its reasonable
discretion).
14
16. Notices
All notices, declarations and other communications under this
Agreement shall be made in writing unless notarization or any other
specific form is required by mandatory law, in the English language
and shall be hand delivered, sent by telefax, mail or courier to the
following addresses or to such other recipients or addresses which
may be notified by one Shareholder to the other Shareholder in the
future in writing:
Bucyrus:
Bucyrus Holdings GmbH
c/o Freshfields Bruckhaus Xxxxxxxx
Attn. Xx. Xxxxxx Xxxxxxx / Xx. Xxxxxxx Xxxxx
Xxxxxxxxxxxxxx 0
00000 Xxxxxxxxxx
Xxxxxxx
Telefax-No.: +49 - 211 - 4979 103
Hamburg Trust:
HMS Hamburg Trust GmbH
Xxxxxxxxxxx(xxxx)x 0
00000 Xxxxxxx
Telefax-No.: +49 - 40 - 60628 - 111
with a copy to:
Xxxx Xxxxxxx Xxxxx
Attn: Xx. Xxxxx Xxxxxxxx
Xx Xxxxxxxxxx 00
00000 Xxxxxxx
Telefax-No.: +49 - 40 - 8788698 - 40
RAG Coal International AG:
RAG Coal International AG
15
Rechtsabteilung
Attn. Xx. Xxxxxx Xxxxxxxxx
Xxxxxxxxxxxxx Xxxx(xxxx)x 0 - 00
00000 Xxxxx
Xxxxxxx
Telefax-No.: +49 - 201 - 177 4039
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Attn: Dr. Xxxxx Xxxxx
Xxxx-Xxxxxxxxx-Xxxx 0
00000 Xxxxxx
Xxxxxxx
Telefax-No. +49 - 89 - 24 44 95 300
17. Costs
All costs, including fees, expenses and charges, in connection with
the preparation, negotiation and execution of this Agreement or the
transactions contemplated therein, including, without limitation,
the fees and expenses of professional advisors, shall be borne by
the Shareholder commissioning such costs. The fees for (i) the
notarization of this Agreement and (ii) the notarization of any
other agreement or document to be executed under or in connection
with this Agreement shall be borne equally by Hamburg Trust and
Bucyrus.
18. Miscellaneous
18.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Federal Republic of Germany without
regard to principles of conflicts of laws.
18.2 Jurisdiction. The regional court (Landgericht) in Essen shall have
the exclusive jurisdiction for any disputes.
18.3 Entire Agreement. This Agreement comprises the entire agreement
between the Shareholders concerning the subject matter hereof and
shall supersede and replace all prior oral and written declarations
of intention made by the Shareholders in respect thereof.
16
18.4 Exhibits. All exhibits to this Agreement constitute an integral part
of this Agreement. In the case of a conflict between any exhibit and
the provisions of this Agreement, the provisions of this Agreement
shall prevail.
18.5 Amendments. Any amendments to this Agreement (including amendments
to this Section 18.5) shall be valid only if made in writing, unless
notarization is required by applicable law.
18.6 Interpretation. The headings in this Agreement are inserted for
convenience only and shall not affect the interpretation of this
Agreement. Except as set out otherwise, all references to "Section"
refer to the corresponding Section of this Agreement. All words used
in this Agreement will be construed to be of such gender or number
as the circumstances require. The word "including" shall not limit
the preceding words or terms.
18.7 German Terms. If provisions in this Agreement include English terms
after which either in the same provision or elsewhere in this
Agreement German terms have been inserted in brackets and/or
italics, the respective German terms alone rather than the English
terms shall be authoritative for the interpretation of the relevant
provisions.
18.8 Days. "Business Days" (Werktage) (excluding, for the avoidance of
doubt, Saturdays, Sundays and public holidays) shall be those
prevailing in Essen/Germany, Frankfurt am Main/Germany, London/UK,
the United States of America and the State of Wisconsin.
18.9 Assignment. Without the written consent of the other Shareholder, no
Shareholder shall be entitled to assign any rights or claims under
this Agreement. Notwithstanding the foregoing, (i) each Shareholder
hereby consents to the assignment of any claims of the other
Shareholder under this Agreement to any banks or other lenders as
collateral for any debt incurred by such Shareholder in connection
with the Acquisition Financing and (ii) Bucyrus shall be entitled to
assign this Agreement or any rights or claims hereunder in full or
in part (in case only part of the Class B Share is assigned) to an
affiliate of Bucyrus in context of a transfer of the Class B Share
to such affiliate according to section 6.1 2nd sentence above.
18.10 Set-off and Retention. No Shareholder shall be entitled to set-off
(aufrechnen) against any claims of the other Shareholder under or in
connection with this Agreement or to exercise any right of retention
(Zuruckbehaltungsrecht) except with a claim that is undisputed or
has become res judicata.
18.11 Third Party Beneficiaries. This Agreement is made for the sole
benefit of the Shareholders, their respective successors and
permitted assigns and except as explicitly stated otherwise herein
nothing contained herein, express or implied, is intended to or
shall confer upon any other individual person or legal entity any
third party benefici-
17
ary right or any other legal or equitable right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
18.12 Partial Invalidity. In the case that one or more provisions of this
Agreement shall be invalid or unenforceable, this shall not affect
the validity and enforceability of the other provisions of this
Agreement. In such case the Shareholders agree to recognize and give
effect to such valid and enforceable provision or provisions which
reflect as closely as possible the commercial intention of such
invalid or unenforceable provision as regards subject matter,
amount, time, place and extent. The same shall apply in the event
that this Agreement contains any omissions (Vertragslucken).
* * * * *
00
XXX XXXXXXX TRUST GMGH
By: /s/ Xx. Xxxxxxx Xxxxx
---------------------------
Xx. Xxxxxxx Xxxxx,
Attorney-in-Fact
BUCYRUS HOLDINGS GMBH
By: /s/ Xx. Xxxxxx Xxxxxxx
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Xx. Xxxxxx Xxxxxxx,
Attorney-in-Fact
19
