Exhibit 10.2
GLEISS ▇▇▇▇ HOOTZ ▇▇▇▇▇▇
RECHTSANWÂLTE
Notarised Version
November 26, 2001
PROJECT CAPITAL
STOCK PURCHASE AGREEMENT
CONCERNING THE ACQUISITION
OF TEREX COMMON STOCK
NOTARIZATION REQUIRED
Stock Purchase Agreement as of November 26, 2001 Page -1-
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STOCK PURCHASE AGREEMENT
CONCERNING THE ACQUISITION OF TEREX STOCK
between
1. TEREX Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇
- hereinafter " TEREX" -
2. PPM Deutschland GmbH TEREX Cranes with its registered office (Sitz) in
Dortmund, registered with the Commercial Register of the Local Court
Dortmund under HRB12258
- hereinafter "PPM GmbH" -
and
3. ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
- hereinafter "▇▇▇▇ ▇▇▇▇▇▇▇" -
4. ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
- hereinafter "▇▇▇▇ ▇▇▇▇▇▇▇" -
5. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇
- hereinafter "▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇" -
6. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
- hereinafter "▇▇▇▇▇▇ ▇▇▇▇▇▇▇" -
7. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
- hereinafter "▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇" -
8. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
- hereinafter "▇▇▇▇▇ ▇▇▇▇▇▇▇" -
Stock Purchase Agreement as of November 26, 2001 Page -2-
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TEREX is also referred to hereinafter as the "Seller".
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ and/or their separate wholly-owned Asset
Management Companies (as defined below) are also referred to hereinafter
jointly as the "Buyers" or individually as a "Buyer".
TEREX, PPM GmbH, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ (and/or their separate
wholly-owned Asset Management Companies (as defined below)) are also
referred to hereinafter jointly as the "Parties" or individually as the
"Party".
Stock Purchase Agreement as of November 26, 2001 Page -3-
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CONTENTS
Preamble.................................................................4
§ 1 Subject of the Agreement............................................5
§ 2 Sale................................................................5
§ 3 Assignment of TEREX Common Stock Sale Shares as of Closing..........8
§ 4 Purchase Price......................................................9
§ 5 Conditions to Closing, Termination Prior to Closing................10
§ 6 Closing............................................................13
§ 7 Lock Up............................................................19
§ 8 Contingent Payment.................................................22
§ 9 Warranties given by Seller.........................................27
§ 10 Warranty Claims, Statute of Limitation.............................30
§ 11 Confidentiality, Announcements.....................................31
§ 12 Miscellaneous......................................................31
Signatures..............................................................36
Stock Purchase Agreement as of November 26, 2001 Page -4-
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Preamble
1. TEREX. TEREX is a corporation established under the laws of the state of
Delaware, USA, based in Westport, Connecticut, USA. TEREX is a diversified
global manufacturer and is involved in a broad range of construction,
infrastructure, recycling and mining-related capital equipment activities
under various brand names. TEREX's authorized capital stock consists of
200,000,000 shares of capital stock, USD 0.01 par value, consisting of
150,000,000 shares of common stock (hereinafter the "TEREX Common Stock")
and 50,000,000 shares of preferred stock (hereinafter the "TEREX Preferred
Stock"). As of November 9, 2001, 31,600,000 shares of TEREX Common Stock
were issued and outstanding on a fully diluted basis and no shares of TEREX
Preferred Stock were issued and outstanding. The TEREX Common Stock is
listed and traded on the New York Stock Exchange (hereinafter"NYSE") under
the symbol "TEX". Holders of TEREX Common Stock have equal ratable rights
to any dividends that may be declared by the board of directors out of
legally available funds. The transfer agent and registrar for TEREX Common
Stock is American Stock Transfer Trust Company.
2. Agreement on the Sale and Purchase of Shares. The Buyers are, except as
otherwise stated in the Agreement on the Sale and Purchase of Shares (as
defined below), the sole shareholders of the Parent Companies (as defined
in the Agreement on the Sale and Purchase of Shares) of the Schaeff Group
of Companies (as defined in the Agreement on the Sale and Purchase of
Shares). By means of separate and notarized share purchase agreement of the
same date, the Buyers have sold the entire Schaeff Group of Companies to
PPM GmbH and the Buyer who accepted such sale (deed roll no. 189/2001 of
the notary Dr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, with his offices in Basle, Switzerland)
(hereinafter referred to as the "Agreement on the Sale and Purchase of
Shares"). The Agreement on the Sale and Purchase of Shares was as original
deed on hand during the notarization of this Stock Purchase Agreement. The
Parties are familiar with the content and the provisions of the Agreement
on the Sale and Purchase of Shares. The Agreement on the Sale and Purchase
of Shares shall be included into this Stock Purchase Agreement expressly by
means of reference (§13a German Notarial Act - Beurkundungsgesetz).
The Parties do not require that
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the Agreement on the Sale and Purchase of Shares be read aloud or be
attached to this Stock Purchase Agreement.
3. Investment. The Buyers have agreed to invest a portion of the consideration
to be paid by PPM GmbH for the shares in the Parent Companies of the
Schaeff Group of Companies (as defined in the Agreement on the Sale and
Purchase of Shares) under the Agreement on the Sale and Purchase of Shares
by acquiring a certain number of newly issued and freely tradable shares in
TEREX Common Stock from Seller. Seller intends to transfer such number of
newly issued and freely tradable shares in TEREX Common Stock to the
Buyers.
Now, therefore, the Parties agree as follows (hereinafter the "Agreement"):
§ 1
Subject of the Agreement
The subject of this Agreement is the number of shares in newly issued,
freely tradable and freely transferable TEREX Common Stock described in
Section2.1 below.
§ 2
Sale
2.1 Sale of TEREX Common Stock. The Seller hereby sells to the Buyers such
amount of newly issued, freely tradable and freely transferable shares in
TEREX Common Stock the value of which equals EUR26,075,000.00 (in words:
Euro twenty six million seventy five thousand). The TEREX Common Stock Sale
Shares (as defined below) shall be of the same class and shall have the
same terms as the currently outstanding shares of TEREX Common Stock. The
TEREX Common Stock Sale Shares (as
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defined below) shall be entitled to and be sold with all rights thereto.
The Buyers hereby accept the sale of the TEREX Common Stock Sale Shares (as
defined below). The exact number of shares to be sold shall be determined
three Business Days (as defined below) before the Closing (as defined
below) by dividing the amount of EUR26,075,000.00 (in words: Euro twenty
six million seventy five thousand) by the Average TEREX Common Stock Price
(as defined below) in Euro and rounding up to the nearest whole number of
shares of TEREX Common Stock (hereinafter the "TEREX Common Stock Sale
Shares"). In order to make such division, the average price of the TEREX
Common Stock in Euro will be determined in two consecutive steps as
follows:
(a) The average price of one share of TEREX Common Stock in United States
dollars will be determined by calculating the average of the daily
closing sale prices of TEREX Common Stock on the consolidated report
of trading of the NYSE issued for the twenty (20) consecutive trading
days ending on the day which is five (5) Business Days (as defined
below) immediately before the Closing Date (as defined below)
(hereinafter the "Average TEREX Common Stock Price").
(b) The Average TEREX Common Stock Price in United States dollars shall
then be converted into Euro on the basis of the average official Euro
Foreign Exchange Reference Rates between central banks within and
outside the European System of Central Banks issued and published on a
daily basis by the European Central Bank for the twenty (20)
consecutive trading days ending on the day which is five (5) Business
Days (as defined below) immediately before the Closing Date (as
defined below).
"Business Day" in terms of this Agreement shall mean any day that is not a
Saturday or Sunday or a day on which banks located in New York City are
authorized or required to be closed. Neither TEREX nor any party acting at
its direction or to facilitate any transaction on TEREX behalf will in a
manner which increases or would cause an increase in the TEREX Common Stock
Price (i) acquire any TEREX Common Stock, either directly or indirectly,
nor (ii) enter into any obligation to acquire any TEREX Common Stock, nor
(iii) make any corresponding public announcement that it intends to do so,
during a period of twenty five (25) trading days ending on the day which is
(5) Business Days immediately before the Closing Date (as defined below).
Neither Buyers nor any party acting at their direction or to facilitate any
transaction on Buyers behalf will in a manner which decreases or would
cause a decrease in the
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TEREX Common Stock Price (i) sell any TEREX Common Stock, either directly
or indirectly, nor (ii) enter into any obligation to sell any TEREX Common
Stock, nor (iii) make any corresponding public announcement that it intends
to do so, during a period of twenty five (25) trading days ending on the
day which is (5) Business Days immediately before the Closing Date.
2.2 Effective Date, Rights to Profits. The Sale shall take place with economic
effect (schuldrechtliche Wirkung) as of the Closing Date (as defined below)
(hereinafter also referred to as the "Effective Date"). The TEREX Common
Stock Sale Shares shall be sold together with any and all rights thereto,
in particular the right to dividends for the entire current and the
previous financial years of TEREX.
2.3 Allocation of TEREX Common Stock Sale Shares. The allocation of the TEREX
Common Stock Sale Shares to each individual Buyer may be designated by the
Buyers between the date hereof and the Closing Date. The Buyers will
provide the Seller with a document substantially similar to Annex2.3 of
this Agreement, in which the allocation of the TEREX Common Stock Sale
Shares to each individual Buyer shall be set forth (hereinafter "the
Allocation Scheme") at least ten Business Days before the Closing Date (as
defined below). The certificates evidencing such shares of TEREX Common
Stock Sale Shares shall be issued to each Buyer (i) according to the
percentage of such Buyer in the TEREX Common Stock Sale Shares as indicated
next to such Buyer's name in the Allocation Scheme and (ii) in the name of
such Buyer. The Buyers shall be deemed joint creditors (Gesamtgläubiger) in
terms of §428German Civil Code (BGB).
2.4 Adjustment of TEREX Common Stock Sale Shares. If, for whatever reason
during the time period in which the Average TEREX Common Stock Price will
be calculated pursuant to Section 2.1 above, TEREX (i)splits or combines
the shares of its common stock outstanding; (ii)merges or consolidates with
any corporation in a transaction in which the other corporation is the
surviving entity; (iii)reorganizes, recapitalizes or reclassifies any of
the shares of its common stock; or (iv)effects any transaction having a
similar effect, the Parties are obligated to co-operate in order to replace
the calculation method set forth in Section 2.1 above by another
calculation method, which corresponds to
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the sense and purpose of the calculation method initially set forth in
Section 2.1 above.
§ 3
Assignment of TEREX Common Stock Sale Shares as of Closing
3.1 Assignment. The Seller shall convey, assign, transfer and deliver as of
Closing (as defined below) the TEREX Common Stock Sale Shares to the
Buyers. The Buyers shall accept such assignment (hereinafter the
"Assignment"). The Assignment shall be made upon the terms and conditions
set out in this Agreement, in particular in accordance with the provisions
of Section 5 and Section 6 of this Agreement. The Assignment of the TEREX
Common Stock Sale Shares shall include all rights thereto.
3.2 Escrow Securities Deposit. The Parties are in agreement that, in case the
Buyers designate that the Escrow Amount (as defined in the Agreement on the
Sale and Purchase of Shares) shall be replaced by the TEREX Escrow Stock
(as defined in the Agreement on the Sale and Purchase of Shares) in
accordance with the provisions set forth in the Agreement on the Sale and
Purchase of Shares, such portion of the shares in TEREX Common Stock Sale
Shares which has to be transferred and delivered under the provisions of
the Agreement on the Sale and Purchase of Shares as TEREX Escrow Stock (as
defined in the Agreement on the Sale and Purchase of Shares) to the Escrow
Securities Deposit (as defined in the Agreement on the Sale and Purchase of
Shares) shall, after title in these shares has been transferred to Buyers,
be delivered by Seller on behalf of PPM GmbH directly to the Escrow
Securities Deposit in accordance with the provisions of the Agreement on
the Sale and Purchase of Shares. The remaining part of the TEREX Common
Stock Sale Shares shall be conveyed, assigned, transferred and delivered as
of Closing to the Buyers in accordance with Section 3.1 above directly to
the Buyers. The exact number of shares in TEREX Common Stock to be
transferred and delivered as TEREX Escrow Stock and the then remaining
number of the TEREX Common Stock Sale Shares shall be determined by the
Parties three Business Days before the Closing (as defined below) takes
place in accordance with the provisions of this
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Agreement as well as in accordance with the provisions of the Agreement on
the Sale and Purchase of Shares.
§ 4
Purchase Price
4.1 Purchase Price. The purchase price for the TEREX Common Stock Sale Shares
amounts to a total of EUR26,075,000.00 (in words: Euro twenty six million
seventy five thousand) (hereinafter the "Purchase Price").
4.2 Due Date. The Purchase Price shall become due at the Closing Date (as
defined below). No interest shall be incurred on it until that date.
4.3 Methods of payment. The payment of the Purchase Price shall not be made by
the Buyers transferring cash to the Seller, but by PPM GmbH setting off the
Purchase Price against the Base Purchase Price (as defined in the Agreement
on the Sale and Purchase of Shares) of EUR64,679,000.00 (in words: Euro
sixty four million six hundred seventy nine thousand) to be paid by PPM
GmbH to the Buyers under the Agreement on the Sale and Purchase of Shares
(hereinafter referred to as the "Purchase Price Setting Off").
4.4 Restriction to Right of Lien/Unperformed Contract. Except as set forth in
Section 4.3 above, Seller shall not be entitled to refuse all or in part
its performance obligations under this Agreement (especially its obligation
to convey, assign, transfer and deliver as of Closing (as defined below)
the TEREX Common Stock Sale Shares) (i.e. exclusion of Right of
Lien/Unperformed Contract).
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§ 5
Conditions to Closing, Termination Prior to Closing
The Seller shall take at or prior to Closing (as defined below) all measures and
actions necessary in order to ensure that the Assignment can be executed as of
Closing (as defined below).
5.1 Conditions to Buyers' Obligations. The obligations of the Buyers under this
Agreement to accept the Assignment and to consummate the other transactions
contemplated hereby shall be subject to the following conditions:
(a) Listing of TEREX Common Stock Sale Shares. At Closing Seller shall
deliver to the Buyers appropriate evidence that the TEREX Common Stock
Sale Shares have been duly authorized for listing on the NYSE upon
official notice of issuance. The TEREX Common Stock Sale Shares shall
have been issued in compliance with all requirements applying thereto.
No stop order suspending the effectiveness of the listing and the
authorization for quotation or the transferability of the TEREX Common
Stock Sale Shares shall have been issued, and no proceedings for that
purpose shall have been initiated or be threatened by the competent
authorities;
(b) Issuance of TEREX Common Stock Sale Shares. The issuance of the TEREX
Common Stock Sale Shares shall have been duly registered under the
Securities Act of 1933, as amended (hereinafter the "Securities Act")
as described in Section 10.5 of this Agreement;
(c) Delivery of Supplement. On or prior to the Closing Date (as defined
below), TEREX shall deliver to each Buyer, a prospectus supplement
with respect to the Registration Statement (as more fully described in
Section 10.5 of this Agreement) reflecting the terms of the offering
of the sale of the TEREX Common Stock Sales Shares under this
Agreement (the "Supplement");
(d) Filing of Supplement. On or prior to the Closing Date, TEREX shall
have filed the Supplement with the United States Securities and
Exchange Commission (hereinafter the "SEC");
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(e) Board of Directors Approval. This Agreement and the consummation of
the transactions contemplated herein have been duly approved by
TEREX's Board of Directors as well as by any other corporate body
and/or board and/or person the consent of which is required or
appropriate under applicable law and/or the amended and restated
bylaws or any other corporate document of TEREX in order to bring into
effect this Agreement and the consummation of the transactions
contemplated herein;
(f) Governmental Approvals. Any material governmental filings, notices and
authorizations, consent and approvals needed to permit the
consummation of the transactions contemplated by this Agreement,
including the approval of the pertinent merger-control and anti-trust
authorities, if necessary, shall have been either made or received, as
the case may be;
(g) Litigation. No action or proceeding shall have been commenced before a
court or other governmental body to restrain or prohibit any of the
transactions contemplated by this Agreement;
(h) Accuracy of Representations and Warranties. The Representations and
Warranties given by the Seller in §9 of this Agreement are
essentially accurate and true in all material aspects as of the
Closing Date (as defined below), except to the extent that any such
Representations and Warranties were made as of a specified date and,
as to such Representations and Warranties, the same shall continue on
the Closing Date (as defined below) to have been essentially accurate
and true as of the specified date. A Representation shall cease to be
essentially accurate and true only if its inaccuracy materially
adversely affects the situation of TEREX, taken as a whole, relating
to its assets, finance and earnings position and/or the TEREX Common
Stock Sale Shares;
(i) Conditions to Closing of the Agreement on the Sale and Purchase of
Shares. The Pre-Closing Actions and Pre-Closing Conditions of the
Agreement of the Sale and Purchase of Shares (as defined in the
Agreement of the Sale and Purchase of Shares) as set forth in Section
6
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of the Agreement of the Sale and Purchase of Shares have been either
met or waived completely.
The Buyers are entitled to waive all or several conditions to Closing (as
defined below) set out in this Section 5.1 in whole or in part by making a
corresponding written declaration to the Seller at any time prior to or on
the Closing Date (as defined below).
5.2 Conditions to Sellers' Obligations. The obligations of the Seller under
this Agreement to perform the Assignment and to consummate the other
transactions contemplated hereby shall be subject to the following
conditions:
(a) Other Governmental Approvals. Any material governmental filings,
notices and authorizations, consent and approvals needed to permit the
consummation of the transactions contemplated by this Agreement
including the approval of the pertinent merger-control and anti-trust
authorities, if necessary, shall have been either made or received, as
the case may be;
(b) Litigation. No action or proceeding shall have been commenced before a
court or other governmental body to restrain or prohibit any of the
transactions contemplated by this Agreement;
(c) Conditions to Closing of the Agreement on the Sale and Purchase of
Shares. The Pre-Closing Actions and Pre-Closing Conditions of the
Agreement of the Sale and Purchase of Shares (as defined in the
Agreement of the Sale and Purchase of Shares) as set forth in section
6 of the Agreement of the Sale and Purchase of Shares have been either
met or waived completely.
The Seller is entitled to waive all or several conditions to Closing (as
defined below) set out in this Section 5.2 in whole or in part by making a
corresponding written declaration to the Sellers at any time prior to or on
the Closing Date (as defined below).
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5.3 Parties' Co-operation in General. Immediately following the Execution of
this Agreement, and as a general rule, the Seller shall use its best
efforts and the Buyers shall give any reasonable assistance thereto in
order to ensure that all Conditions to Closing (as defined below) as set
out in this Section5 (hereinafter referred to as the "Conditions to
Closing") are fulfilled without delay after the Signing (as defined below)
of this Agreement. In particular they shall provide each other, as far as
this is reasonable, with all information and assistance required to fulfil
the Conditions to Closing.
5.4 Competition Authority Clearance. With respect to the clearance of all
competent merger-control and cartel authorities, if any, the Parties shall
use their reasonable best efforts and shall co-operate fully as well to
obtain such clearance. The Parties shall ensure that all necessary measures
related thereto are taken and all necessary filings are made without delay.
5.5 Termination prior to Closing. If the Conditions to Closing as set out in
this Section 5 have not been met or waived on or prior to May 31, 2002
(hereinafter "Cut Off Date"), the Buyers jointly on the one hand and the
Seller on the other hand shall be entitled to terminate this Agreement with
immediate effect for all Parties by notifying all other Parties. In this
case, §12,§13.1, §13.2, §13.3, §13.4, §13.7,
§13.8, §13.9, §13.10 and §13.12 shall continue to
apply. This Agreement may also be terminated at any time by mutual written
consent of the Parties to this Agreement. The Cut Off Date may be postponed
at any time by mutual written consent of the Parties to this Agreement as
well.
§ 6
Closing
6.1 Closing Date, Time and Place of Closing. After the signing of this
Agreement, including its Annexes (hereinafter referred to as the
"Signing"), the performance of the Assignment, and the Purchase Price
Setting Off (hereinafter referred to as the "Closing") shall take place on
the same date (hereinafter referred to as the "Closing Date"), time and
place as the Closing of the Agreement on the Sale and Purchase of Shares
(as defined and set forth in Section 6 of the Agreement on the Sale and
Transfer of Shares). The Closing
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shall be an integral part of the Closing of the Agreement on the Sale and
Purchase of Shares (as defined and set forth in Section 6 of the Agreement
on the Sale and Purchase of Shares).
6.2 Actions upon Closing. Upon Closing, the following actions and measures
shall be taken:
(a) The Parties shall sign, as an amendment to the Declaration of
Completion (as defined in the Agreement on the Sale and Purchase of
Shares), the declaration attached as Annex 6.2-A stating that the
Conditions to Closing as set out in Section 5 of this Agreement have
been either met or waived completely (hereinafter the "Amendment to
the Declaration of Completion"). Buyers' acceptance of such
certification in the Amendment to the Declaration of Completion shall,
however, not constitute a waiver by Buyers of any of their rights on
the basis of the Representations and Warranties given under §10
of this Agreement;
(b) The Parties shall, in order to execute and perform the Assignment and
the Purchase Price Setting Off, conclude a separate Closing Agreement
by means of which the TEREX Common Stock Sale Shares shall be conveyed
assigned, transferred and delivered from the Seller or its agents to
the respective Buyer or a person designated by the Sellers in writing
(e.g. the Escrow Agent as defined in the Agreement on the Sale and
Purchase of Shares), as set forth in the Allocation Scheme (as defined
above) and by means of which the Purchase Price Setting Off is
performed (hereinafter referred to as the "Closing Agreement").
However, it has to be ensured that the Closing Agreement contains
provisions in order to ensure that the Assignment and the Purchase
Price Setting Off shall become effective only if and when
(aufschiebende Bedingung in terms of §158, paragraph 1, German
Civil Code - BGB) the amount of the Base Purchase Price (as defined in
the Agreement on the Sale and Purchase of Shares) remaining after the
Purchase Price Setting Off (i.e. EUR38,604,000.00 (in words: thirty
eight million six hundred and four thousand) has been paid in
immediately available funds, free of any bank charges, completely and
irrevocably into the Omnibus Account (as defined in the Agreement on
the Sale and Purchase
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of Shares), the Escrow Account (as defined in the Agreement on the
Sale and Purchase of Shares) or the Suspense Escrow Account (as
defined in the Agreement on the Sale and Purchase of Shares), as the
case may be, including any accumulated VAT, if any;
(c) The Parties shall take all further actions and measures required under
applicable law and make all necessary declarations in order to perform
the consummation of the transactions set forth in this Agreement.
6.3 Expenses and Indemnification. With respect to expenses and indemnification
the following shall apply:
(a) All expenses incident to Seller's performance of or compliance with
Section 5.1 of this Agreement (other than financial advisor or
brokerage fees or underwriting discounts or commissions of the Buyers
and the fees and expenses of Buyers' Counsel, which will be borne by
the Buyers) will be borne by Seller, including without limitation (i)
all registration and filing fees; (ii) all fees and expenses of
compliance with federal securities laws and state securities or "blue
sky" laws; (iii) all expenses of printing, messenger and delivery
services and telephone; (iv) all fees and disbursements of counsel for
Seller; (v) and all fees and disbursements of independent certified
public accountants of Seller. Seller will, in any event, bear its
internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting
duties), the expenses of any annual audit and the fees and expenses of
any person, including special experts, retained by Seller.
(b) With respect to the TEREX Common Stock Sale Shares covered by the
Supplement, to the extent permitted by law, Seller will indemnify and
hold harmless each Buyer who holds such TEREX Common Stock Sale Shares
(hereinafter each, an "Indemnified Person" or "Indemnified Party"),
against any losses, claims, damages, liabilities or expenses (joint or
several) incurred (hereinafter collectively, "Claims") to which any of
them may become subject under the Securities Act, the Securities
Exchange Act of 1934, as amended (hereinafter the "Exchange Act"), or
otherwise, insofar as such Claims (or actions or proceedings, whether
Stock Purchase Agreement as of November 26, 2001 Page -16-
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commenced or threatened, in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations in the
Registration Statement, or any post-effective amendment thereto, or
any prospectus included therein:
(i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or any
post-effective amendment or 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;
(ii) any untrue statement or alleged untrue statement of a material
fact contained in the Supplement (as amended or supplemented, if
Seller files any amendment or supplement thereto with the SEC) or
the omission or alleged omission to state therein any material
fact necessary to make the statements made therein, in light of
the circumstances under which the statements therein were made,
not misleading; or
(iii) any violation or alleged violation by Seller of the Securities
Act, the Exchange Act, any state securities law or any rule or
regulation under the Securities Act, the Exchange Act or any
state securities law (the matters in the foregoing clauses (i)
through (iii) being, collectively, "Violations").
Subject to the next paragraph of this Section 6.3, Seller shall
reimburse the Buyers, promptly as such expenses are incurred and are
due and payable, for any legal fees or other reasonable expenses
incurred by them in connection with investigating or defending any
such Claim.
(c) Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6.3 shall not
(i) apply to a Claim arising out of or based upon a Violation which
occurs in reliance upon and in conformity with information
furnished in writing to Seller by or on behalf of such
Indemnified Person expressly for use in connection with the
Registration
Stock Purchase Agreement as of November 26, 2001 Page -17-
________________________________________________________________________________
Statement or any such amendment or supplement thereto, if such
prospectus was timely made available by Seller pursuant to this
Section 6.3;
(ii) be available to the extent such Claim is based on a failure of a
Buyer to deliver or cause to be delivered the prospectus made
available by Seller; or
(iii) apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of
Seller, which consent shall not be unreasonably withheld.
Each Buyer will indemnify Seller and its officers, directors and
agents against any claims arising out of or based upon a Violation
which occurs in reliance upon and in conformity with information
furnished in writing to Seller, by or on behalf of such Buyer,
expressly for use in connection with the Registration Statement,
subject to such limitations and conditions as are applicable to the
indemnification provided by Seller to this Section 6.3. Such indemnity
shall remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnified Person and shall survive the
transfer of the TEREX Common Stock Sale Shares by the Buyers in a
Registered Sale.
(d) Promptly after receipt by an Indemnified Person or Indemnified Party
under this Section 6.3 of notice of the commencement of any action
(including any governmental action), such Indemnified Person or
Indemnified Party shall, if a Claim in respect thereof is to be made
against any indemnifying party under this Section 6.3, deliver to the
indemnifying party a written notice of the commencement thereof and
the indemnifying party shall have the right to participate in, and, to
the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume control of the defense
thereof with counsel mutually satisfactory to the indemnifying party
and the Indemnified Person or the Indemnified Party, as the case may
be; provided, however, that an Indemnified Person or Indemnified Party
shall have the right to retain its own counsel, reasonably acceptable
to Seller with the reasonable fees and expenses to be paid by the
indemnifying
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party, if, in the reasonable opinion of reputable U.S. securities
counsel retained by the indemnifying party, the representation by such
counsel of the Indemnified Person or Indemnified Party and the
indemnifying party would be inappropriate due to actual or potential
differing interests between such Indemnified Person or Indemnified
Party and any other person represented by such counsel in such
proceeding. In such event, the indemnifying party shall pay for only
one separate legal counsel for the Indemnified Party or Indemnified
Person; such legal counsel to be selected by the Indemnified Person or
Indemnified Party, (i) subject to the consent of the indemnifying
party (which consent shall not be unreasonably withheld or delayed),
and (ii) if the Indemnified Parties or Indemnified Persons are Buyers,
by the Buyers holding a majority in interests of the TEREX Common
Stock Sale Shares included in the Registration Statement to which the
Claim relates. Except as provided in the immediately preceding
sentences, in case any such action is brought against any Indemnified
Person or Indemnified Party, and it notifies the indemnifying party of
the commencement thereof, after notice from the indemnifying party to
such Indemnified Person or Indemnified Party of the indemnifying
person's election so to assume (alone or with other indemnifying
persons) the defense thereof, the indemnifying party will not be
liable to such Indemnified Person or Indemnified Party under this
Section 6.3 for any legal or other reasonable out-of-pocket expenses
subsequently incurred by such Indemnified Person or Indemnified Party
in connection with the defense thereof other than reasonable costs of
investigation, unless the indemnifying party shall not defend such
action to its final conclusion. The Indemnified Person or Indemnified
Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and
reasonable out-of-pocket expenses of such counsel shall not be at the
expense of the indemnifying party if the indemnifying party has
assumed the defense of the action with counsel reasonably satisfactory
to the Indemnified Person or Indemnified Party. The failure to deliver
written notice to the indemnifying party within a reasonable time of
the commencement of any such action shall not relieve such
indemnifying party of any liability to the Indemnified Person or
Indemnified Party under this Section 6.3, except to the extent that
the indemnifying party is prejudiced in its ability to defend such
action. The indemnification required by this Section 6.3
Stock Purchase Agreement as of November 26, 2001 Page -19-
________________________________________________________________________________
shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as such expense, loss, damage
or liability is incurred and is due and payable.
(e) To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make
the maximum contribution with respect to any amounts for which it
would otherwise be liable under this Section 6.3 to the fullest extent
permitted by law; provided, however, that (i) no contribution shall be
made under circumstances where the maker would not have been liable
for indemnification under the fault standards set forth in Section 6.3
hereof; (ii) no seller of TEREX Common Stock Sale Shares guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any seller
of TEREX Common Stock Sale Shares who was not guilty of such
fraudulent misrepresentation; and (iii) contribution by any seller of
TEREX Common Stock Sale Shares shall be limited in amount to the net
amount of proceeds received by such seller from the sale of such TEREX
Common Stock Sale Shares.
§ 7
Lock Up
7.1 Lock Up Period. As a general rule and except as set forth in Section 7.2 or
elsewhere in this Agreement or the Agreement on the Sale and Purchase of
Shares, each of the Buyers pledges vis-à-vis the Seller, severally
and with respect to his share in the TEREX Common Stock Sale Shares as
defined in Section 2.3 of this Agreement, irrevocably and subject to the
provisions of applicable mandatory law, that within a period of 36 months
from the Closing Date (hereinafter referred to as the "Lock Up Period"),
he/she will not offer or sell or otherwise dispose of his/her TEREX Common
Stock Sale Shares in whole or in part, directly or indirectly, either on a
stock exchange or in a transaction outside of any stock exchange, or
announce such action, or take any other action that is economically
equivalent to a sale (hereinafter referred to as the "Lock Up"). It is the
Parties' common understanding that the Lock Up shall
Stock Purchase Agreement as of November 26, 2001 Page -20-
________________________________________________________________________________
not restrict the Buyers from (i) entering into any hedging mechanism,
including, but not limited to, derivative transactions inter alia forwards,
collars and options transactions (which for the sake of certainty include
call options, put options or any combination or set of such options, being
either physically or cash settled) with a major bank (e.g. ABN Amro Bank),
(ii) pledging or (iii) lending the TEREX Common Stock Sale Shares, either
in whole or in part, to a third party or any measure related thereto. For
the avoidance of doubt it is hereby set forth that the restrictions on the
TEREX Escrow Stock (as defined in the Agreement on the Sale and Purchase of
Shares) set forth in Section 5 of the Agreement on the Sale and Purchase of
Shares shall prevail over the exemption in the preceding sentence from the
Lock Up, unless otherwise is expressly set forth (i) in the Agreement on
the Sale and Purchase of Shares or (ii) agreed upon between the Parties in
writing.
7.2 Exceptions to the Lock Up. The Lock Up shall not apply and each of the
Buyers shall be entitled to freely offer or sell or otherwise dispose of
the TEREX Common Stock Sale Shares in whole or in part, directly or
indirectly, either on a stock exchange or in a transaction outside of any
stock exchange, or announce such action, or take any other action that is
economically equivalent to a sale (hereinafter referred to as a
"Transaction")
(a) if and when the aggregate consideration for the TEREX Common Stock
Sale Shares disposed of in such Transaction would yield, if reflected
to all of the TEREX Common Stock Sale Shares, a market value of the
TEREX Common Stock Sale Shares exceeding in the aggregate
EUR33,376,000.00 (in words: Eurothirty three million three hundred and
seventy six thousand) (hereinafter referred to as the "TEREX Common
Stock Target Value"). The TEREX Common Stock Target Value will be
reduced pro rata for any Transaction by the Buyers during the Lock Up
Period. Notwithstanding the foregoing, the restrictions set forth in
section 5.7(c) of the Agreement on the Sale and Purchase of Shares
shall apply and PPMGmbH shall only be obliged to release such number
of shares of TEREX Escrow Stock from the Escrow Securities Deposit, if
and when a corresponding amount in cash, calculated in accordance with
section 5.7(c) of the Agreement on the Sale and Purchase of Shares is
paid by the Buyers into a newly established escrow
Stock Purchase Agreement as of November 26, 2001 Page -21-
________________________________________________________________________________
account or to the Escrow Agent (as defined in the Agreement on the
Sale and Purchase of Shares); or
(b) if and when, after the expiry of the first twelve month of the Lock Up
Period in which Transactions may only be executed in accordance with
sub-section (a) above and sub-section (c) below, the aggregate number
of TEREX Common Stock Sale Shares disposed of in one or several
Transactions in each six month period after the expiry of the first
twelve month of the Lock Up Period does not exceed 25% of the
aggregate number of the TEREX Common Stock Sale Shares. This exemption
shall apply irrespective of whether the aggregate consideration for
the TEREX Common Stock Sale Shares disposed of in such Transactions
would yield, if reflected to all of the TEREX Common Stock Sale
Shares, the TEREX Common Stock Target Value; or
(c) if and when TEREX Common Stock Sale Shares are transferred from one
Buyer to another or from one Buyer to one of his/her dependants
(Angehörige) in terms of §▇▇ ▇▇▇▇▇▇ Tax Code
(Abgabenordnung) and vice versa. However, in the later case, the
transferring Buyer has to ensure that the provisions of this section
7.2 shall apply analogously vis-à-vis the dependent who
acquired TEREX Common Stock Sale Shares. The Buyers involved in any
such transaction shall notify the Seller in writing without delay
about such transaction, when it took place, and the number of shares
of TEREX Common Stock transferred and the price per share of TEREX
Common Stock received as consideration in such transaction.
7.3 Contractual Penalty. In the event of a breach of the Lock Up as set forth
in Section 7.1 and Section 7.2 above by one or several of the Buyers, the
Buyer or the Buyers (as the case may be) committing such breach shall pay a
contractual penalty to the Seller in the amount of 25% (in words: twenty
five percent) of the aggregate consideration for the TEREX Common Stock
Sale Shares disposed of in such Transaction (hereinafter referred to as the
"Contractual Penalty"). Any further liability of the Buyers in the event of
a breach of the Lock Up as set forth in Section 7.1 and Section 7.2 shall
be excluded, and neither Seller nor any other Party shall be entitled to
assert any further claims against Buyers, insofar as legally permissible
under mandatory law.
Stock Purchase Agreement as of November 26, 2001 Page -22-
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§ 8
Contingent Payment
8.1 Contingent Payment. If during the last ten (10) consecutive trading days
before (i) the expiry of eighteen (18) months, or (ii) the expiry of twenty
four (24) months, or (iii) the expiry of thirty (30) months, or (iv) the
expiry of thirty six (36) months since the Closing Date (each such date is
hereinafter referred to as a "Qualifying Date") the Average Qualifying Date
TEREX Common Stock Price (as defined below) of one (1) share of TEREX
Common Stock in Euro during such ten (10) trading day period is less than
the 1.28 times multiple of the Average TEREX Common Stock Price in Euro (as
calculated in accordance with Section 2.1 above) (hereinafter referred to
as the "TEREX Common Stock Guaranteed Value"), Seller will, in each case,
make a payment in immediately available funds in Euro to a bank account
designated by the Buyers in writing (each of which is hereinafter referred
to as a "Contingent Payment") within thirty (30) days after receipt of
Buyers' or a Buyers' representative written notice of a claim for a
Contingent Payment (hereinafter referred to as the "Contingent Payment
Notice"). The Contingent Payment will, in each case, be calculated in four
(4) consecutive steps as follows:
(a) The average price of one share of TEREX Common Stock in United States
dollars will be determined for each Qualifying Date by calculating the
average of the daily closing sale prices of TEREX Common Stock on the
consolidated report of trading of the NYSE issued for the ten (10)
consecutive trading days before each Qualifying Date (hereinafter the
"Average Qualifying Date TEREX Common Stock Price").
(b) The Average Qualifying Date TEREX Common Stock Price for each
Qualifying Date shall then be converted into Euro on the basis of the
official Euro Foreign Exchange Reference Rates between central banks
within and outside the European System of Central Banks issued and
published on a daily basis by the European Central Bank for the ten
(10) consecutive trading days ending before the respective Qualifying
Date.
Stock Purchase Agreement as of November 26, 2001 Page -23-
________________________________________________________________________________
(c) The Average Qualifying Date TEREX Common Stock Price in Euro shall be
divided by the Average Common Stock Price in Euro, thereby obtaining
the "Qualifying Date Multiple" (hereinafter also referred to as
"QDM").
(d) Dependent on the Qualifying Date Multiple, the respective Contingent
Payment shall be determined as follows:
(i) If the Qualifying Date Multiple for the respective Qualifying
Date is 1.28 or exceeds 1.28, then the Buyers shall not receive a
Contingent Payment for such Qualifying Date.
(ii) If the Qualifying Date Multiple for the respective Qualifying
Date is 1.00 or lower, then the Contingent Payment for such
Qualifying Date shall be EUR2,560,000.00 (in words: Euro two
million five hundred sixty thousand) (hereinafter referred to as
the "Maximum Contingent Payment" or "MCP").
(iii) If the Qualifying Date Multiple for the respective Qualifying
Date exceeds 1.00, but is lower than 1.28, then the Contingent
Payment shall be calculated on the basis of the following
formula:
MCP x [1 - (QDM - 1.00) : 0.28].
An example for the calculation of the Contingent Payment in case
the Qualifying Date Multiple for the respective Qualifying Date
exceeds 1.00, but is lower than 1.28 is, for explanatory
purposes, contained in Annex 8.1.
If, for whatever reason, on or prior to the third anniversary of the
Closing or during one of the time periods during which the Average TEREX
Common Stock Qualifying Date Value is calculated, TEREX (i)splits or
combines the shares of its common stock outstanding; (ii)merges or
consolidates with any corporation in a transaction in which the other
corporation is the surviving entity; (iii)reorganizes, recapitalizes or
reclassifies any of the shares of its common stock; or (iv)effects any
transaction having a similar effect, the Parties are obligated to
co-operate in order to replace the calculation method set
Stock Purchase Agreement as of November 26, 2001 Page -24-
________________________________________________________________________________
forth in this Section 8.1 by another calculation method, which corresponds
to the sense and purpose of the calculation method initially set forth in
this Section 8.1.
8.2 Reduction of Contingent Payment. The Maximum Contingent Payment for each
specific Qualifying Date shall be subject to a pro rata reduction with
respect to any sales of TEREX Common Stock Sale Shares by the Buyers during
(i) the 18 months of the Lock Up period prior to the first Qualifying Date
or (ii) the six months of the Lock Up Period prior to each Qualifying Date
thereafter, if and when the consideration for one TEREX Common Stock Sale
Shares disposed of in such sale exceeded the TEREX Common Stock Guaranteed
Value. The pro rata reduction of the Maximum Contingent Payment for the
respective Qualifying Date shall be calculated as follows:
(a) The Maximum Contingent Payment for the first Qualifying Date shall be
cancelled in its entirety, if, during the 18 months of the Lock Up
Period prior to the first Qualifying Date, the Buyers have disposed of
25% of all TEREX Common Stock Sale Shares during such period for a
consideration per share of TEREX Common Stock exceeding the TEREX
Common Stock Guaranteed Value.
(b) The Maximum Contingent Payment for the second and each subsequent
Qualifying Date shall be cancelled in its entirety if, during the six
months of the Lock Up Period prior to the respective Qualifying Date,
the Buyers have disposed of 25% of all TEREX Common Stock Sale Shares
during such period for a consideration per share of TEREX Common Stock
exceeding the TEREX Common Stock Guaranteed Value.
(c) If the Buyers have disposed of less than 25% of all TEREX Common Stock
Sale Shares for a consideration per share of TEREX Common Stock
exceeding the TEREX Common Stock Guaranteed Value during such period,
the reduction will be calculated pro rata to the relation of the
percentage of the TEREX Common Stock Sale Shares disposed of in such
period for a consideration per share of TEREX Common Stock exceeding
the TEREX Common Stock Guaranteed Value to 25% of all TEREX Common
Stock Sale Shares.
Stock Purchase Agreement as of November 26, 2001 Page -25-
________________________________________________________________________________
(d) If the Buyers have, during (i) the 18 month period prior to the first
Qualifying Date or (ii) the six month period prior to a Qualifying
Date thereafter disposed of more then 25% of all TEREX Common Stock
Sale Shares for a consideration per share of TEREX Common Stock
exceeding the TEREX Common Stock Guaranteed Value, then the percentage
of TEREX Common Stock Sale Shares exceeding 25% of all TEREX Common
Stock Sale Shares shall lead to a pro rata reduction of the Maximum
Contingent Payment becoming due on the following Qualifying Date
calculated in accordance with sub-sections (a) , (b) and (c) above.
An example for the calculation of the reduction of each Maximum Contingent
Payment in case the Buyers have within designated period prior to any
Qualifying Date have disposed of TEREX Common Stock Sale Shares for a
consideration for one TEREX Common Stock Sale Share exceeding the TEREX
Common Stock Guaranteed Value is, for explanatory purposes, contained in
Annex 8.2. For the avoidance of doubt it is hereby set forth, that the
respective Maximum Contingent Payment shall only be reduced with respect to
the number of TEREX Common Stock Sale Shares which were disposed of for a
consideration for one TEREX Common Stock Sale Share exceeding the TEREX
Common Stock Guaranteed Value. Any disposal of TEREX Common Stock Sale
Shares for a consideration which does not exceed such price, shall not lead
to any reduction of the Maximum Contingent Payment at all.
8.3 Cancellation of Contingent Payment. The Contingent Payment becoming due on
a Qualifying Date shall be cancelled in its entirety, no matter whether the
Buyers have disposed of any TEREX Common Stock Sale Shares during the six
months period prior to such Qualifying Date, if at any time during such six
months period prior to the respective Qualifying Date, the market value of
TEREX Common Stock in Euro exceeds the TEREX Common Stock Guaranteed Value
in Euro (as defined above) for a period of ten consecutive Business Days.
The market value of TEREX Common Stock in Euro for each of these ten
Business Days in Euro shall be determined in accordance with the provisions
set forth in Section 2.1 which shall apply analogously. For the avoidance
of doubt it is hereby set forth that the question whether the Contingent
Payment shall be cancelled on one or several Qualifying Dates in
Stock Purchase Agreement as of November 26, 2001 Page -26-
________________________________________________________________________________
accordance with this Section 8.3 has to be determined for each Qualifying
Date separately on the basis of the development of the market value of the
TEREX Common Stock during the six month period prior to the respective
Qualifying Date.
8.4 Conversion of Contingent Payment into TEREX Common Stock. TEREX may
designate by giving written notice to the Buyers' representatives
designated in Section 13.12 of this Agreement within fifteen (15) days
after receipt of a written Contingent Payment Notice that it desires,
instead of making a cash payment, to deliver to Buyers as Contingent
Payment such amount of newly issued, freely tradable and freely
transferable shares in TEREX Common Stock the value of which equals the
respective Contingent Payment. Such TEREX Common Stock shall be of the same
class and shall have the same terms as the currently outstanding shares of
TEREX Common Stock. The TEREX Common Stock shall be entitled to and be sold
with all rights thereto. The exact number of shares of TEREX Common Stock
to be delivered as Contingent Payment shall be determined and delivered to
each Buyer according to such Buyer's percentage in the TEREX Common Stock
Sale Shares indicated next to such Buyer's name in the Allocation Scheme
within thirty (30) days after receipt of the respective Contingent Payment
Notice in the same manner as described in Section 2.1 above, which shall
apply analogously. The decisive date for the calculation of the average
TEREX Common Stock price shall, however, not be the Closing Date, but the
respective Qualifying Date.
§ 9
Disposal of TEREX Common Stock Sale Shares
TEREX hereby acknowledges that the Buyers may decide to dispose of the TEREX
Common Stock Sale Shares, subject to the restrictions set forth in Section 7 of
this Agreement and Section 5.7 of the Agreement on the Sale and Purchase of
Shares (if applicable), either in whole or in part. If one or several of the
Buyers inform TEREX about such decision, TEREX shall assist Buyers in connection
with the disposal of the TEREX Common Stock Sale Shares by introducing them to
major market makers and providing them with other reasonable assistance to
dispose of the TEREX Common Stock Sale Shares, subject, however, to applicable
rules and regulations. Moreover, TEREX shall take all other reasonable actions
necessary to expedite and facilitate disposition of the TEREX Common
Stock Purchase Agreement as of November 26, 2001 Page -27-
________________________________________________________________________________
Stock Sale Shares; cooperate to the extent commercially practicable with the
Buyers who hold TEREX Common Stock Sale Shares in their efforts to resell TEREX
Common Stock Sale Shares.
§ 10
Warranties given by Seller
As of Signing and as of Closing, the Seller represents and warrants to the
Buyers that the following is correct and complete, with no further warranties
being given unless agreed otherwise elsewhere in this Agreement and except as
disclosed in the Annexes:
10.1 Organization and Good Standing. TEREX has been duly organized and is
validly existing and in good standing under the laws of its jurisdiction of
incorporation or organization. TEREX has the requisite power and authority
and all necessary approvals to own, lease and operate its properties and to
carry on its business as it is now being conducted. TEREX is duly qualified
or licensed to do business, and is in good standing, in each jurisdiction
where the character of the properties owned, leased or operated by it or
the nature of its business makes such qualification or licensing necessary,
except for such failures to be so qualified or licensed and in good
standing that, individually or in the aggregate, have not resulted and
could not reasonably be expected to result in a materially adverse effect
on the business, assets, properties, results of operations or financial
condition of TEREX. The copies of TEREX's restated certificate of
incorporation and amended and restated by-laws, each as amended through the
date of this Agreement that are listed as exhibits to TEREX's Annual Report
on Form 10-K for the calendar year ended December 21, 2000, are complete
and correct copies of those documents. TEREX is not in violation of any of
the provisions of such restated certificate of incorporation or amended and
restated by-laws.
Stock Purchase Agreement as of November 26, 2001 Page -28-
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10.2 Capitalization. The information provided in no. (1) of the Preamble is, as
of the date of this Agreement, true and correct. All issued and outstanding
shares of TEREX Common Stock are duly authorized, validly issued and
outstanding, fully paid and nonassessable. The shares issued in TEREX
Common Stock were issued free of preemptive rights in compliance with
applicable law. There are no restrictions imposed by TEREX upon the
transfer of or otherwise pertaining to the TEREX Common Stock (including,
but not limited to, the ability to pay dividends thereon) or retained
earnings of TEREX or the ownership thereof other than those imposed by the
Securities Act, the Exchange Act, applicable state securities laws,
applicable corporate law or the restated certificate of incorporation or
amended and restated by-laws of TEREX. The TEREX Common Stock Sale Shares
are free of any third party's right and are of the same class and have the
same rights and terms as the currently outstanding shares in TEREX Common
Stock. The TEREX Common Stock Sale Shares have been duly approved for
listing and quotation on the NYSE. The TEREX Common Stock Sale Shares are
freely transferable.
10.3 Authority, No Conflict. TEREX has all necessary corporate power and
authority to execute and deliver this Agreement and to perform its
obligations under this Agreement and to consummate the transactions
contemplated by this Agreement. The execution of this Agreement and its
consummation have been duly and validly authorized by all necessary
corporate bodies and all required corporate actions have been taken. The
execution of this Agreement and its consummation will not conflict with or
violate any provisions of TEREX's certificate of incorporation or by-laws
or any comparable organizational documents of TEREX. The execution of this
Agreement by TEREX does not, and the performance of this Agreement by TEREX
will not, require any consent, approval, authorization or permission of, or
filing with or notification to, any Governmental Entity, except for filings
with the SEC.
10.4 SEC Filings, Annual Financial Statements. TEREX's SEC Reports, including
any financial statements or schedules included or incorporated therein by
reference, at the time they were filed, (i)complied in all material
respects with the requirements of the Exchange Act or the Securities Act or
both, as the case may be, applicable to those Company SEC Reports and
(ii)did not contain any untrue statement of material fact or omit to state
a material fact required to be
Stock Purchase Agreement as of November 26, 2001 Page -29-
________________________________________________________________________________
stated or necessary in order to prevent the statements made in those SEC
Reports, in the light of the circumstances under which they were made, from
being misleading. Each of the consolidated balance sheets included in or
incorporated by reference into TEREX's SEC Reports (including the related
notes and schedules) fairly presented, in all material respects, the
situation of TEREX relating to its asset, finance and earnings position, in
each case in conformity with United States generally accepted accounting
principles (hereinafter referred to as "U.S. GAAP") consistently applied
throughout the periods indicated. All such balance sheets and statements
complied as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto.
10.5 Registration Statement. A registration statement on Form S-3 (No.
333-52933), including a basic prospectus, relating to certain of TEREX's
equity and debt securities and warrants and rights and the offering thereof
from time to time in accordance with Rule 415 promulgated under the
Securities Act has been filed with the SEC and has been declared effective
under the Securities Act. Such registration statement, as may be amended or
supplemented from time to time and as amended as of the date hereof,
including all material incorporated by reference therein, is hereinafter
referred to as the "Registration Statement". The Registration Statement is
effective on the date hereof and TEREX has not received notice that the SEC
has issued or intends to issue a stop order with respect to the
Registration Statement or that the SEC otherwise has suspended or withdrawn
the effectiveness of the Registration Statement, either temporarily or
permanently, or intends or has threatened in writing to do so. The
Registration Statement, as of the time it was declared effective, and any
amendments or supplements thereto, each as of the time of filing, did not
contain any untrue statement of material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading. The issuance of the TEREX Common Stock Sale Shares
are registered under the Securities Act pursuant to the Registration
Statement.
10.6 No Materially Adverse Effect. The business of TEREX and its affiliates has
been conducted with the due care of a businessman (Sorgfalt eines
ordentlichen Kaufmanns) between January 01, 2001 and the Signing of this
Agreement. Nothing, that has not been disclosed by TEREX either in its
filing with the SEC, by making a public statement or announcement or in
writing vis-à-vis
Stock Purchase Agreement as of November 26, 2001 Page -30-
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Buyer, has arisen which could reasonably be expected to materially
adversely affect the situation of TEREX and its affiliates, taken as a
whole, relating to its assets, finance and earnings position, which the
Buyers have not been informed of prior to Signing. Any SEC filing or press
release filed or issued by TEREX shall be treated as publicly announced in
terms of this provision.
10.7 Disclosure. No representation or warranty by Seller contained in this
Agreement and no information contained in any Annex thereto pursuant hereto
or in connection with the transaction contemplated contains or will contain
any materially untrue statement of material fact or omits or will omit to
state a material fact necessary in order to make the statements contained
herein or therein not materially misleading.
§ 11
Warranty Claims, Statute of Limitation
11.1 Claims of the Buyers. If it becomes apparent that the warranties given by
the Sellers in this Agreement are not accurate, the Sellers shall place the
respective Company in the position that it would be in if the warranties
were correct. The Buyer shall only be entitled to payment after (i) the
Buyer has granted the Sellers an appropriate period of at least 30 days
(hereinafter "Rectification Period") in which to bring about the warranted
situation (hereinafter "Rectification") and the Sellers fail to remedy the
defects within the said rectification period or (ii) if it can be proven
that rectification is not possible.
11.2 Statute of Limitation. Any claims on the part of the Buyers arising from
this Agreement or in relation to this Agreement shall become statute barred
on December 31, 2002.
Stock Purchase Agreement as of November 26, 2001 Page -31-
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§ 12
Confidentiality, Announcements
The Parties shall not make any announcements or notifications to third parties,
in particular press releases, concerning the circumstances of the conclusion of
this Agreement, the contents of the Agreement and the actions planned on the
basis of this Agreement, before checking the contents thereof with and receiving
the written approval of the other Parties. This obligation to confer and obtain
approval shall not exist if one of the Parties is obliged to issue a
notification by law, the regulations of the New York Stock Exchange, or on the
basis of a court or official order.
§ 13
Miscellaneous
13.1 Continued Co-Operation. The Parties shall co-operate after the Signing of
this Agreement in order to execute this Agreement. Each Party to this
Agreement shall take all further action, submit all declarations and sign
all deeds which are reasonably deemed necessary to implement and complete
this Agreement and the transactions intended on the basis of this
Agreement.
13.2 Joint and several liability of PPM GmbH, Assignment. PPM GmbH shall (i) be
bound by the terms and conditions of this Agreement in the same way as the
Seller and shall (ii) be jointly and severally liable for any and all
obligations of Seller under this Agreement (Gesamtschuldnerische Haftung)
and shall only be released from any such obligations to the extent that
these are fully performed by Seller. This Agreement and/or parts of this
Agreement shall not be assigned by any Party to another Party or a third
party without obtaining the prior written consent of all other Parties,
except as otherwise expressly set forth in this Agreement.
13.3 Asset Management Companies. The Parties are in agreement that each of the
Buyer shall be entitled to incorporate between the date hereof and the
Closing Date an asset management limited liability company (Gesellschaft
mit beschränkter Haftung) which, as designated by each of the Buyers
individually vis-à-vis Seller in writing before the closing Date,
may acquire as of Closing all
Stock Purchase Agreement as of November 26, 2001 Page -32-
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or part of the TEREX Common Stock Sale Shares (hereinafter "the Asset
Management Companies"). In such case, the Buyers shall ensure that that
obligations set forth under this Agreement to acquire the TEREX Common
Stock Sale Shares and to perform the Assignment shall be performed by the
respective Asset Management Company in the place of the respective Buyer.
In such case the provisions set forth under this Agreement shall apply
analogously with respect to each Asset Management Company and the Asset
Management Companies shall enter into this Agreement by means of notarial
declaration of accession (Beitrittserklärung). The Parties hereby
agree to such declaration of accession and the Asset Management Companies
entering this Agreement. For the avoidance of doubt, it is hereby set forth
that each of the Buyers shall (i) be bound by the terms and conditions of
this Agreement in the same way as him/her respective Asset Management
Company and the respective Buyer shall (ii) be jointly and severally liable
for any and all obligations of his/her Asset Management Company under this
Agreement (Gesamtschuldnerische Haftung) and shall only be released from
any such obligations to the extent that these are fully performed by
his/her respective Asset Management Company.
13.4 Applicable law. This Agreement and the interpretation thereof are
exclusively governed by the law of the Federal Republic of Germany, with
the exception of any provisions regarding the conflict of laws.
13.5 Language. This Agreement is executed in the English language. The English
version is binding. Annexes to this Agreement may be executed in the German
language without English translation.
13.6 Tax consequences of this Agreement. Each Party to this Agreement shall be
solely responsible for the tax consequences arising from this Agreement for
the said Party. Should intended or hoped for tax results or consequences
not come about (inter alia due to the corporate tax reform currently
planned by the Federal government, an amendment to the currently planned
corporate tax reform or other amendments to the tax laws), this shall not
create any rights against the other Parties to this Agreement, in
particular no right to the rescission of the Agreement, to damages or to
the adjustment of the Agreement due to frustration of contract.
Stock Purchase Agreement as of November 26, 2001 Page -33-
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13.7 Settlement of disputes. All disputes between the Parties arising from or in
connection with this Agreement shall be decided exclusively by an
arbitration tribunal in accordance with the rules of arbitration of the
Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS). The
arbitration tribunal shall consist of three arbitrators and shall have its
seat in Frankfurt am Main, Germany. In accordance with the valid rules of
arbitration of the DIS, the Buyers on the one hand and TEREX and PPM GmbH
on the other hand shall each jointly appoint one arbitrator. The third
arbitrator shall then be appointed in accordance with the rules of
arbitration of the DIS. An award made on the basis of these proceedings is
final and binding for the Parties and may, upon application, be declared
enforceable by the pertinent state court. No appeal may be made against the
decision of the arbitration tribunal. The award shall also contain a
decision concerning the costs of the arbitration proceedings (including
remuneration for the arbitrators). The language of the proceedings shall be
English. Documents originating in German can be submitted in German. The
provisions in this §13.7 shall not prevent or hinder the Parties from
asserting their claims vis-à-vis the other Parties arising from this
Agreement by seeking a temporary injunction from the pertinent state
courts.
13.8 Costs. Unless explicitly agreed otherwise in this Agreement, each Party to
the contract shall bear the costs he himself incurs in connection with the
preparation, Signing and performance of this Agreement, including the costs
for his advisors. The Seller shall bear the costs for the recording of this
Agreement by a notary and the costs for any further necessary notarial
deeds, commercial register applications and any turnover, transfer or
acquisition tax incurred by this Agreement and its completion. The
provisions of Section 6.3 of this Agreement shall prevail.
13.9 Severability. Should a provision of this Agreement be or become invalid or
unenforceable, or should there prove to be an omission herein, this shall
not affect the validity of the remaining provisions. In place of the
invalid provision, a valid provision shall be deemed agreed which
corresponds to the meaning and purpose of the invalid provision. In the
event of an omission, a provision shall be deemed agreed that corresponds,
in terms of the purpose and meaning of this Agreement, to what the Parties
would have agreed had the Parties considered the matter at the outset.
Stock Purchase Agreement as of November 26, 2001 Page -34-
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13.10 Amendments to the Agreement. Amendments and supplements to this Agreement
shall be made in writing in order to be legally effective, unless recording
by a notary is prescribed by law. This shall also apply for the removal of
this clause.
13.11 [intentionally left blank]
13.12 Notices and communications. Notices or other communications relating to
this Agreement shall be made in writing and shall either be submitted to
the recipient personally in return for confirmation of receipt, sent by
registered mail with receipt of delivery or by a recognized courier
service, or sent by fax (followed by confirmation of receipt sent by
registered mail with receipt of delivery or recognized courier service).
All notices or other communications shall be addressed to the Parties at
the following addresses (or to other Parties or persons and/or other
addresses the other Parties are informed of by the Party for whom the
notice was originally intended, with each change only becoming effective
upon receipt of the notification of the change):
a) to the Buyers:
(1) ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
GermanyFax: 0049 (0)7905 - 55 66
(2) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Ödenbühlsteige 12
74523 Schwäbisch Hall
Germany
Fax: ▇▇▇▇ (▇)▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Rechtsanwälte Gleiss ▇▇▇▇ Hootz ▇▇▇▇▇▇
Prof. ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇. ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: 0049 (0)711 - 855 096
(b) to the Seller and PPM GmbH:
Stock Purchase Agreement as of November 26, 2001 Page -35-
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Terex Corporation
Attn: General Counsel
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇-▇▇▇▇
with a copy to:
Coudert Schürmann
Herrn Rechtsanwalt ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ ▇-▇▇ ▇▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇▇▇ (▇)▇▇ ▇▇▇▇-▇▇▇
Stock Purchase Agreement as of November 26, 2001 Page -36-
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Signatures
1. ▇▇▇▇ ▇▇▇▇▇▇▇ 2. ▇▇▇▇ ▇▇▇▇▇▇▇
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3. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 4. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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5. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇ 6. ▇▇▇▇▇ ▇▇▇▇▇▇▇
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7. TEREX Corporation 8. PPM GmbH
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