AMENDMENT TO AGREEMENT AND PLAN OF MERGER
AMENDMENT, dated as of April 14, 2004 to Agreement and Plan of Merger,
dated as of July 19, 2002, by and among Terex Corporation, a Delaware
corporation ("Buyer"), and Xxxxxx Xxxxxxxxx, X. Xxxx Xxxxxxxx and F. Xxxxx Xxxxx
and the limited partnerships signatories hereto (each individually, a "Seller"
and collectively, the "Sellers").
WHEREAS, the undersigned entered into that certain Agreement and Plan of
Merger dated as of July 19, 2009 (the "Merger Agreement;" all defined terms used
herein shall have the meaning ascribed to them in the Merger Agreement unless
otherwise indicated);
WHEREAS, the Merger Agreement provided for Buyer to make an Acces
Receivable Contingent Payment determined base on a percentage of the collections
of amounts owed pursuant to the Acces Industrie Receivable;
WHEREAS, due to changes in accounting treatment, prior to the Closing Date
the transaction with Acces Industrie was reclassified from a sale to a lease on
the books and records of Genie Industries, Inc.;
WHEREAS, the items referred in the previous recital have caused the parties
to be unable to agree on the amount of the Access Receivable Contingent Payment
to be paid to the Sellers in accordance with the formula provided for in the
Merger Agreement; and
WHEREAS, for the reasons set forth above the undersigned have agreed to
amend the Merger Agreement as provided for below to modify the manner in which
the Access Receivable Contingent Payment is determined.
NOW, THEREFORE, in consideration of the foregoing, the undersigned agree as
follows:
1. The definition of "Sellers' Applicable Percentage" is hereby amended
and restated in it entirety as follows: "`Sellers' Applicable Amount'
shall mean US$0.403734 for each Euro collected with respect to the
Acces Industrie Receivable up to a maximum of US$15,000,000." All
references in the Merger Agreement to "Seller' Applicable Percentage"
shall be deemed changed to "Sellers' Applicable Amount."
2. The undersigned agree that:
(a) The amount of the Acces Industrie Recievable as of the Closing
Date was Euro 37,153,158.00.
(b) The aggregate amount collected with respect to the Acces
Industrie Receivable for the first three Post-Closing Calendar
Half periods ended on March 17, 2004 was Euro 21,030,000.
(c) The amount owed by Buyer to Sellers calculated as Sellers'
Applicable Amount in accordance with the formula provided for in
Section 7.7 of the Merger Agreement and amend and restated in
Paragraph 3 below is US$8,490,000.00, which amount Buyer agrees
to pay to Sellers in cash within five (5) Business Days after
Sellers have provided that Buyer with written payment
instructions.
3. Section 7.7 of the Merger Agreement is hereby amended and restated in
its entirety to read as follows:
"7.7 Acces Industrie Receivable Contingent Payment. (a)
Following the Closing and irrespective of any indemnification payment
made pursuant to Section 11.2(f), Buyer shall, or shall cause its
Affiliates to, use its commercially reasonable efforts to collect the
Acces Industrie Receivable; provided, however, that Buyer shall not be
required to pursue collection of the Acces Industrie Receivable through
Litigation. Following the end of each Post-Closing Calendar Half (as
defined below), Buyer shall deliver to the Sellers a certificate (the
"Receivables Certificate") setting forth the amount of the Acces
Industrie Receivable collected during the previous Post-Closing
Calendar Half, (ii) the amount of the Acces Industrie Receivable then
outstanding, and (iii) the amount (the "Acces Receivable Past Due
Amount"), if any, of the Acces Industrie Receivable more than ninety
(90) days past due. Any dispute as to the contents of a Receivables
Certificate shall be satisfied by the parties as if it were a "claim"
in accordance with Section 11.4.
(b) Within ten (10) Business Days following the delivery of each
Receivable Certificate, commencing with the Receivables
Certificate for the Post-Closing Calendar half ended March 17,
2004, Buyer shall either, at the sole option of Buyer, (i) pay to
Sellers an amount in US Dollars equal to the Sellers' Applicable
Amount based on the amount of Euros collected during such
Post-Closing Calendar Half with respect to the Acces Industrie
Receivable or (ii) issue to Sellers (the "Acces Receivable
Contingent Payment") a number of fully paid and non-assessable
shares of Buyer Common Stock equal to the quotient of (A) the
Sellers' Applicable Amount based on the amount of Euros collected
during such Post-Closing Calendar Half with respect to the Acces
Industrie Receivable, divided by (B) the average of the closing
prices of Buyer Common Stock on the NYSE, as reported by The Wall
Street Journal (national edition) (or if not reported thereby, as
reported by any other authoritative source) for ten (10)
consecutive Trading Days ending on the last day of such
Post-Closing Calendar Half. Subject to the provisions of this
Section 7.7, each Seller shall receive a portion of the Acces
Industrie Receivable Contingent Payment equal to the Seller's Pro
Rata Portion. For purposes of this Section 7.7, "Post-Closing
Calendar Half" means each six-month period ending during the
period which begins after the Closing Date and which ends prior
to, or includes, the last date on which payments are due under
the Acces Industrie Receivable, provided that the first
Post-Closing Calendar Half shall be deemed to begin on the
Closing Date."
4. Section 11.2 (f) of the Merger Agreement is hereby deleted in its
entirety.
5. Except as expressly modified or amended hereby, the Merger Agreement
shall remain unchanged and in full force and effect.
6. This Amendment 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
TEREX CORPORATION
By: /s/ Xxxxxx XxXxx
---------------------------------
Name Xxxxxx XxXxx
Title: Chairman and CEO
/s/ Xxxxxx Xxxxxxxxx
---------------------------------
XXXXXX XXXXXXXXX
/s/ X. Xxxx Xxxxxxxx
---------------------------------
X. XXXX BUSHNELL
/s/ F. Xxxxx Xxxxx
---------------------------------
F. XXXXX XXXXX
XXXXXXXXX LIMITED PARTNERSHIP
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title:
BUSHNELL LIMITED PARTNERSHIP
By: /s/ X. Xxxx Xxxxxxxx
---------------------------------
Name: X. Xxxx Bushnell
Title:
X. XXXXX LIMITED PARTNERSHIP
By: /s/ F. Xxxxx Xxxxx
---------------------------------
Name: F. Xxxxx Xxxxx
Title:
