Execution Copy
STOCK PURCHASE AGREEMENT
by and among
SDC PRAGUE, S.R.O.,
TEREX CORPORATION,
and
GP OMIKRON, S.R.O.
Dated as of
August 28, 2003
TABLE OF CONTENTS
Page
----
SECTION 1. Definitions and Usage......................... 1
SECTION 2. Sale of TATRA Shares.......................... 1
2.1. The TATRA Purchase; Consideration............. 1
2.2. The Closing................................... 2
2.3. Actions at the Closing........................ 4
SECTION 3. Representations and Warranties of SDC Prague.. 6
3.1. Organization and Good Standing; Power and
Authority; Qualifications..................... 6
3.2. Authorization of the Documents................ 6
3.3. Capitalization................................ 7
3.4. TATRA Shares.................................. 7
3.5. Litigation.................................... 7
3.6. Governmental Investigations................... 7
3.7. Consents...................................... 7
3.8. Non-Contravention............................. 8
3.9. Brokers and Finders........................... 8
3.10. Prohibited Payments........................... 8
3.11. Acquisition of Terex Stock for Investment;
Ability to Evaluate and Bear Risk............. 9
3.12. Information Supplied; Disclosure.............. 9
SECTION 4. Representations and Warranties of Terex....... 9
4.1. Organization and Qualification................ 9
4.2. Due Authorization.............................10
4.3. Consents......................................11
4.4. Brokers or Finders............................11
SECTION 5. Pre-Closing Covenants.........................11
5.1. Negative Agreements...........................11
5.2. Disclosure....................................12
5.3. Notification of Material Information..........12
5.4. Cooperation...................................12
5.5. Access to TATRA...............................12
5.6. No Solicitation...............................12
SECTION 6. Termination...................................13
6.1. General Provision.............................13
6.2. Termination by Terex or the Purchaser.........14
6.3. Termination by SDC Prague.....................14
6.4. Effect of Termination.........................15
SECTION 7. [Intentionally omitted.]......................15
-i-
SECTION 8. Survival of Representations, Warranties,
Agreements and Covenants, Etc.................16
SECTION 9. Indemnification...............................16
9.1. General Indemnification.......................16
9.2. Indemnification Principles....................17
9.3. Claim Notice..................................17
SECTION 10. Remedies......................................18
SECTION 11. Payment of Expenses...........................19
SECTION 12. Further Assurances............................19
SECTION 13. Legends.......................................19
SECTION 14. Successors and Assigns........................20
SECTION 15. Entire Agreement..............................20
SECTION 16. Notices.......................................20
SECTION 17. Amendments....................................21
SECTION 18. Counterparts..................................21
SECTION 19. Headings......................................21
SECTION 20. Nouns and Pronouns............................21
SECTION 21. Governing Law.................................21
SECTION 22. Severability..................................22
SECTION 23. Definitions...................................22
SECTION 24. Currency......................................25
-ii-
Exhibits
--------
Exhibit A Contract on the Transfer of Securities
Exhibit B Form of Registration Rights Agreement
Exhibit C Form of Termination Agreement
INDEX OF DEFINED TERMS
Term Section
---- -------
$....................................................... 24
2001 Stock Purchase Agreement..................... Recitals
Acquisition Proposal.................................... 23
Affiliate.............................................. 23
Agreement..........................................Preamble
Business................................................ 23
Business Day............................................ 23
Capitalink Expenses..................................... 11
Cash Consideration.............................. 2.1(b)(ii)
Claim Notice........................................... 9.3
Closing............................................. 2.2(a)
Closing Date........................................ 2.2(a)
Closing Price........................................... 23
Company........................................... Recitals
Competitive Financing Transaction................... 6.3(c)
Consideration....................................... 2.1(b)
Contract Shares......................................... 23
Czech Competition Office........................ 2.2(b)(ii)
CZK..................................................... 24
Encumbrance............................................. 23
Exchange Act............................................ 23
Executive....................................... 2.3(a)(ii)
Financing Transaction............................... 6.3(b)
Governmental Entity..................................... 23
Guarantee............................................... 23
Indemnification Agreement............................... 23
Intention Notice.................................... 6.3(d)
Law..................................................... 23
Legal Fees.............................................. 11
Loan Agreement.......................................... 23
Losses................................................. 9.2
Material Adverse Change................................. 23
Material Adverse Effect................................. 23
Note.................................................... 23
NYSE.................................................... 23
Person.................................................. 23
-iii-
Pledge Agreements....................................... 23
Purchase Price.................................... Recitals
Purchaser......................................... Preamble
Purchaser Indemnitee.............................. 9.1. 9.1
Registration Rights Agreement.................. 2.3(a)(iii)
Registration Statement................................ 3.12
SDC Prague.........................................Preamble
Securities Act.......................................... 23
Securities Center....................................... 23
Subsidiary.............................................. 23
Superior Proposal....................................... 23
TATRA..............................................Recitals
TATRA Loan Agreement.................................... 23
TATRA Purchase.....................................Recitals
TATRA Share Transfer................................ 2.1(a)
TATRA Shares...................................... Recitals
Taxes................................................... 23
Terex Competitor........................................ 23
Terex Review Period................................. 6.3(d)
Terex Stock.................................... 2.1(b)(iii)
Termination Agreement........................... 2.3(a)(iv)
Trading Day............................................. 23
Transaction Documents................................... 23
Voting Securities....................................... 23
-iv-
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of
August 28, 2003, by and among SDC Prague, S.R.O., a company
organized under the laws of the Czech Republic ("SDC Prague"),
Terex Corporation, a Delaware corporation ("Terex") and GP
Omikron, S.R.O., a company organized under the laws of the Czech
Republic (the "Purchaser").
W I T N E S S E T H:
WHEREAS, pursuant to a Stock Purchase Agreement, dated as of
December 27, 2001, by and among SDC International, Inc., a
Delaware corporation (the "Company"), SDC Prague and Terex (the
"2001 Stock Purchase Agreement"), the Company sold to Terex
8,407,161 Contract Shares representing 40.61% of the issued and
outstanding equity interest and registered capital of TATRA a.s.,
a joint stock company established under the laws of the Czech
Republic ("TATRA");
WHEREAS, the Purchaser is a wholly-owned subsidiary of
Terex; and
WHEREAS, SDC Prague desires to sell to the Purchaser, and
the Purchaser desires to purchase from SDC Prague (the "TATRA
Purchase"), 10,555,738 Contract Shares (the "TATRA Shares"),
consisting of 2,683,428 Contract Shares, ISIN CS 0005018456 and
7,872,310 Contract Shares, ISIN 770000001873, which collectively
represent 51.00% of the issued and outstanding equity interest
and registered capital of TATRA, for an aggregate purchase price
of $4,789,002 (the "Purchase Price").
NOW, THEREFORE, in consideration of the premises and the
mutual representations, warranties and agreements herein set
forth, the parties hereto agree as follows:
SECTION 1. Definitions and Usage. Unless the context shall
----------------------
otherwise require, terms used herein and not otherwise defined
have the meanings assigned thereto in Section 23.
SECTION 2. Sale of TATRA Shares.
---------------------
2.1. The TATRA Purchase; Consideration
---------------------------------
(a) At the Closing, SDC Prague shall sell, assign, transfer,
deliver and convey to the Purchaser and the Purchaser shall
purchase and accept from SDC Prague the TATRA Shares registered
in the name of the Purchaser free and clear of all Encumbrances
pursuant to the Contract on the Transfer of Securities attached
as Exhibit A hereto (the "TATRA Share Transfer").
(b) In consideration for the TATRA Shares, at the Closing the
Purchaser shall pay the Purchase Price by delivering, or causing
to be delivered, to SDC Prague the following (collectively, the
"Consideration"):
(i) 208,591 shares of Terex common stock (the "Terex
Stock");
(ii) an amount in immediately available funds equal to
$200,000; and
(iii) an amount in immediately available funds equal
to the amount, if any, by which the product of (x) 108,591 times (y) the
Closing Price on the Trading Day immediately prior to the Closing
Date (as defined below) is less than $2,389,000 (collectively,
the sum of the amounts described in clauses (ii) and (iii), the
"Cash Consideration").
2.2. The Closing.
------------
(a) Closing. The closing of the TATRA Purchase (the "Closing")
shall take place at 10:00 a.m. New York time on the Business Day
following the date on which the closing conditions set forth in
Section 2.2(b) and (c) have been met, or waived, in accordance
with this Agreement, or on such other date or at such other time
as is agreed to in writing by the parties (such date, the
"Closing Date"). The Closing shall take place at the offices of
Fried, Frank, Harris, βββββββ� & ββββββββ, βββ� βββ� ββββ βββββ�, βββ�
ββββ, βββ� ββββ βββββ�.
(b) Terex/Purchaser's Closing Conditions. The obligation of
Terex and the Purchaser to consummate the transactions
contemplated herein at the Closing are subject to and conditioned
upon (unless waived by Terex and the Purchaser):
(i) The registration of the TATRA Shares in the name of
the Purchaser with the Securities Center, together with the
satisfaction of such other conditions as may be imposed by Czech
law or the rules and regulations of the Securities Center in
order to consummate and evidence the consummation of the
transactions contemplated by this Agreement, and the receipt of
evidence, in a form reasonably satisfactory to Terex and the
Purchaser, of such registration and the satisfaction of such
other conditions.
(ii) (A) The Office of the Protection of the Economic
Competition of the Czech Republic (the "Czech Competition Office") shall
have issued a final decision (pravomocne rozhodnuti) permitting the
TATRA Share Transfer, (B) the relevant waiting period with regard
to the Czech Competition Office shall have expired without the
Czech Competition Office prohibiting the TATRA Share Transfer, or
(C) the Czech Competition Office shall have decided that the
TATRA Share Transfer is not subject to its approval and the
Purchaser shall have received a letter confirming that no such
approval is required to carryout the TATRA Share Transfer.
(iii) The representations and warranties of SDC Prague
in Section 3 hereof shall be true and correct when made and at and
as of the Closing Date with the same effect as though such
representations and warranties had been made at and as of such
date except (a) that any such representations and warranties that
are given as of a
-2-
specified date and relate solely to a specified date or period shall
be true and correct only as of such date or period, and (b) to the
extent any breach thereof, individually or when aggregated with all
such breaches, has not had and is not reasonably likely to have a
Material Adverse Effect on either the Company or SDC Prague. For
purposes of this Section 2.2(b)(iii), the truth or correctness of
any representation or warranty of SDC Prague in Section 3 hereof
shall be determined without regard to any materiality or "Material
Adverse Effect" qualification set forth in such representation and
warranty. Terex and the Purchaser shall have received at Closing a
certificate to the foregoing effect, dated the Closing Date and
signed by the Executive (as defined below) of SDC Prague.
(iv) The representations and warranties of the Company
in Section 2 of the Indemnification Agreement shall be true and
correct when made and at and as of the Closing Date with the same
effect as though such representations and warranties had been
made at and as of such date except (a) that any such
representations and warranties that are given as of a specified
date and relate solely to a specified date or period shall be
true and correct only as of such date or period, and (b) to the
extent any breach thereof, individually or when aggregated with
all such breaches, has not had and is not reasonably likely to
have a Material Adverse Effect on either the Company or SDC
Prague. For purposes of this Section 2.2(b)(iv), the truth or
correctness of any representation or warranty of the Company in
Section 2 of the Indemnification Agreement shall be determined
without regard to any materiality or "Material Adverse Effect"
qualification set forth in such representation and warranty.
Terex and the Purchaser shall have received at Closing a
certificate to the foregoing effect, dated the Closing Date and
signed by the Chief Executive Officer of the Company.
(v) SDC Prague shall have performed, in all material
respects, all agreements, obligations and duties to be performed by it
on or before the Closing pursuant to this Agreement, including those
set forth in Section 5.
(vi) There shall be no claim, litigation, arbitration,
investigation or hearing, pending, or, to the knowledge of SDC
Prague or the Company, threatened, against TATRA by or before any
court or any Governmental Entity, contesting the validity of
issuance, or ownership by SDC Prague, of the TATRA Shares or the
transactions contemplated by this Agreement.
(c) SDC Prague's Closing Conditions. The obligation of SDC
Prague to consummate the transactions contemplated herein at the
Closing are subject to and conditioned upon (unless waived by SDC
Prague):
(i) The representations and warranties of Terex in
Section 4 hereof shall be true and correct when made and at and as of
the Closing Date with the same effect as though such representations
and warranties had been made at and as of such date except (a)
that any such representations and warranties that are given as of
a specified date and relate solely to a specified date or period
shall be true and correct only as of such date or period, and (b)
to the extent any breach thereof, individually or when aggregated
-3-
with all such breaches, has not had and is not reasonably likely
to have a Material Adverse Effect on Terex or the Purchaser. For
purposes of this Section 2.2(c)(i), the truth or correctness of
any representation or warranty of Terex in Section 4 hereof shall
be determined without regard to any materiality or "Material
Adverse Effect" qualification set forth in such representation
and warranty. SDC Prague shall have received at Closing a
certificate to the foregoing effect, dated the Closing Date and
signed by a senior executive officer of each of the Purchaser and
Terex.
(ii) Terex and the Purchaser shall each have
performed, in all material respects, all agreements, obligations
and duties to be performed by it on or before the Closing
pursuant to this Agreement, including those set forth in Section 5.
(iii) (A) The Czech Competition Office shall have
issued a final decision (pravomcne rozhodnuti) permitting the TATRA
Share Transfer, (B) the relevant waiting period with regard to the
Czech Competition Office shall have expired without the Czech
Competition Office prohibiting the TATRA Share Transfer, or (C)
the Czech Competition Office shall have decided that the TATRA
Share Transfer is not subject to its approval and the Purchaser
shall have received a letter confirming that no such approval is
required to carryout the TATRA Share Transfer.
2.3. Actions at the Closing.
-----------------------
(a) Simultaneously with, or prior to, the Closing, SDC
Prague shall cause the following actions to occur:
(i) SDC Prague shall transfer to Purchaser or its
nominee the TATRA Shares in a manner consistent with Czech law and
the rules and regulations of the Securities Center against receipt
at the Closing by SDC Prague from Purchaser of the Consideration.
(ii) SDC Prague shall deliver to the Purchaser and
Terex a certificate executed by its executive (jednatel) (the
"Executive"), dated as of the Closing Date, certifying the
following matters: (A) resolutions of the Sole Participant of
SDC Prague authorizing the execution, delivery and performance by
SDC Prague of each of the Transaction Documents to which it is a
party, and any other agreement entered into or instruments
delivered by SDC Prague in connection herewith, (B) copies of
each governmental or third party consent, approval or filing
required to be obtained or made by SDC Prague and/or the Company
in order to consummate the transactions contemplated by this
Agreement, (C) incumbency matters, (D) a copy of the Founding
Deed and a copy of any other organizational documents of SDC
Prague and (E) that the representations and warranties of SDC
Prague contained in this Agreement are true and correct as of the
Closing Date and that SDC Prague has performed, satisfied, and
complied with all covenants, agreements and conditions required
by this Agreement to be performed, satisfied or complied with by
it at or before the Closing.
(iii) SDC Prague shall deliver to Terex a duly
executed copy of
-4-
the registration rights agreement substantially in the form of
Exhibit B hereto (the "Registration Rights Agreement").
(iv) SDC Prague shall deliver to Terex a duly
executed copy of the termination agreement substantially in the form
of Exhibit C hereto, which shall terminate the 2001 Stock Purchase
Agreement, the Loan Agreement, the Guarantees, and the Pledge
Agreements (the "Termination Agreement").
(v) SDC Prague shall deliver such additional
documents and certificates required to be delivered by SDC Prague at
or prior to the Closing Date pursuant to this Agreement.
(b) Simultaneously with, or prior to, the Closing, Terex shall
cause the following actions to occur:
(i) Terex shall deliver to SDC Prague stock certificates
for Terex Stock registered in the name of SDC Prague that represents
the Terex Stock required to be delivered at the Closing pursuant
to Section 2.1(b)(i) hereof.
(ii) Terex shall deliver to SDC Prague the Cash
Consideration by wire transfer of immediately available funds to the
accounts specified in advance by SDC Prague.
(iii) Terex shall deliver to the Company the Notes, each
marked "Cancelled."
(iv) Terex shall deliver to SDC Prague a copy of the
Registration Rights Agreement duly executed by Terex.
(v) Terex shall deliver to SDC Prague a copy of the
Termination Agreement duly executed by Terex.
(vi) Terex shall deliver to SDC Prague a certificate
executed by its secretary, dated as of the Closing Date, certifying
the following matters: (A) resolutions of the board of directors
of Terex authorizing the execution, delivery and performance by
Terex of each of the Transaction Documents to which it is a party,
and any other agreement entered into or instruments delivered by
Terex in connection herewith, (B) copies of each governmental or
third party consent, approval or filing required to be obtained or made
by Terex and/or the Purchaser in order to consummate the transactions
contemplated by this Agreement, (C) incumbency matters, (D) a copy of
the Certificate of Incorporation and a copy of the By-Laws of Terex and
(E) that the representations and warranties of Terex contained in
this Agreement are true and correct as of the Closing Date and that
Terex has performed, satisfied, and complied with all covenants,
agreements and conditions required by this Agreement to be
performed, satisfied or complied with by it at or before the Closing.
(vii) Terex shall deliver such additional documents and
-5-
certificates required to be delivered by Terex at or prior to the
Closing Date pursuant to this Agreement.
SECTION 3. Representations and Warranties of SDC Prague. SDC
--------------------------------------------
Prague represents and warrants to Terex and the Purchaser as
follows:
3.1. Organization and Good Standing; Power and Authority;
------------------------------------------------------
Qualifications. SDC Prague (x) is a company duly established and
---------------
validly existing under the laws of the Czech Republic and (y) has
the full power and authority to conduct its business and to own
or lease and operate its properties as and in the places where
such business is now conducted and such properties are now owned
or leased and operated, with such exceptions as, individually or
in the aggregate, have not had and are not reasonably likely to
have a Material Adverse Effect on SDC Prague. SDC Prague is
qualified or otherwise authorized to do business as a foreign
corporation and is in good standing in each jurisdiction in which
the character of the properties owned or held by it under lease
or license or SDC Prague's business, as presently conducted,
requires such qualification or authorization, except where the
failure so to qualify or be authorized, individually or in the
aggregate, has not had and is not reasonably likely to have a
Material Adverse Effect on SDC Prague. TATRA (x) is a joint-
stock company duly established and validly existing under, and is
in good standing under, the laws of the Czech Republic and (y)
has the full power and authority to conduct its business and to
own or lease and operate its properties as and in the places
where such business is now conducted and such properties are now
owned or leased and operated, with such exceptions as,
individually or in the aggregate, have not had and are not
reasonably likely to have a Material Adverse Effect on TATRA.
TATRA is qualified or otherwise authorized to do business as a
foreign corporation and is in good standing in each jurisdiction
in which the character of the properties owned or held by it
under lease or license or TATRA's business, as presently
conducted, requires such qualification or authorization, except
where the failure so to qualify or be authorized, individually or
in the aggregate, has not had and is not reasonably likely to
have a Material Adverse Effect on TATRA.
3.2. Authorization of the Documents. SDC Prague has all right,
-------------------------------
power and authority to enter into the Transaction Documents to
which it is a party and to consummate the transactions
contemplated thereby. The execution and delivery of each of the
Transaction Documents to which it is a party and the sale of the
TATRA Shares by SDC Prague and compliance by SDC Prague with all
the provisions of each of the Transaction Documents to which it
is a party and consummation by SDC Prague of the transactions
contemplated thereby (i) are within the power and authority of
SDC Prague; and (ii) have been authorized by all requisite
proceedings on the part of SDC Prague, including the approval or
consent of the stockholders of SDC Prague. This Agreement has
been duly executed and delivered by SDC Prague and constitutes
the valid and binding agreement of SDC Prague, enforceable in
accordance with its terms, except that (i) such enforcement may
be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar Laws now or hereafter in effect relating to
creditors' rights, and (ii) the remedy of specific performance
and injunctive and other forms of equitable
-6-
relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
3.3. Capitalization. Immediately after the Closing, the
---------------
Purchaser shall own, in the aggregate, at least 51% of the
registered capital of TATRA, and the voting power of the TATRA
Shares shall represent, in the aggregate, no less than 51% of the
total number of votes able to be cast on any matter by any Voting
Securities of TATRA immediately after the Closing.
3.4. TATRA Shares. The registered capital of TATRA consists of
-------------
CZK 2,069,752,600, divided into 4,418,055 bearer shares with a
nominal value of CZK 100 (ISIN CS 0005018456), and 16,279,471
bearer shares with a nominal value of CZK 100 (ISIN
770000001873). Except for the pledge of the TATRA Shares
pursuant to the Pledge Agreement, which Pledge Agreement shall be
terminated simultaneously with the Closing, all of the TATRA
Shares are owned beneficially and of record by SDC Prague, free
and clear of any Encumbrances. All of the TATRA Shares have been
duly authorized and validly issued and are fully paid and
nonassessable. Except for rights created pursuant to this
Agreement and except for any agreement entered into by Terex,
there are no outstanding options, warrants, securities, rights
(preemptive or other), subscriptions, calls, or other agreements
of any kind that give any Person the right to purchase or
otherwise receive any shares of TATRA capital stock, including
the TATRA Shares. Except for any voting arrangements entered
into by Terex, there are no voting arrangements with respect to
any shares of TATRA capital stock, including the TATRA Shares and
there are no restrictions on SDC Prague's ability to transfer the
TATRA Shares to Purchaser at the Closing free and clear of any
Encumbrances. SDC Prague owns the TATRA Shares and upon delivery
of the Consideration, Purchaser will acquire good and marketable
title to the TATRA Shares, free and clear of any Encumbrances.
3.5. Litigation. Except as set forth in Schedule 3.5 hereto,
-----------
there is no action, suit, investigation or proceeding pending or,
to the knowledge of SDC Prague, threatened against the Company or
its Subsidiaries or any of their properties or assets by or
before any court, arbitrator or other Governmental Entity.
3.6. Governmental Investigations. To the knowledge of SDC
----------------------------
Prague, no Governmental Entity has advised TATRA, the Company or
SDC Prague of any intention to conduct any audit, investigation
or other review with respect to TATRA, the Company or SDC Prague
that would have a Material Adverse Effect on the Company, SDC
Prague, TATRA, its Business or the legal acts contemplated
hereby.
3.7. Consents. Except as set forth on Schedule 3.7, neither the
---------
Company nor SDC Prague is required to obtain any consent,
approval or authorization of, or to make any declaration or
filing with, any Governmental Entity or any other Person as a
condition to or in connection with the valid execution and
delivery of any of the Transaction Documents to which the Company
or SDC Prague is a party or the valid offer, sale or delivery of
the TATRA Shares, or the performance by the Company or SDC Prague of
-7-
their respective obligations in respect of any of the Transaction
Documents to which the Company or SDC Prague is a party.
3.8. Non-Contravention. The execution, delivery and performance
------------------
of the Transaction Documents to which it is a party by each of
the Company and SDC Prague does not and will not (a) conflict
with or violate either of their organizational documents or
agreements, (b) conflict with or violate any Law or judgment
applicable to the Company or SDC Prague, (c) result in the
creation or imposition of any Encumbrance on any of the TATRA
Shares or (d) constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default)
under, or give rise to any right of termination, cancellation,
modification or acceleration of any right or obligation of the
Company or SDC Prague or a loss of any benefit to which the
Company or SDC Prague is entitled under any note, bond, mortgage,
indenture, deed of trust, license, agreement, lease, permit,
franchise or other instrument or obligation to which the Company
or SDC Prague is a party or by which the Company or SDC Prague or
their respective properties are bound or affected, except, in the
case of clauses (b), (c) or (d) of this Section 3.8 where the
violation, conflict, breach, default, acceleration, termination,
modification, creation or imposition, would not, individually or
in the aggregate, have a Material Adverse Effect on the Company
or SDC Prague.
3.9. Brokers and Finders. Except as set forth in Schedule 3.9,
--------------------
no agent, broker, investment banker or other Person is or will be
entitled to any broker's fee or any other commission or similar
fee from the Company or SDC Prague or any of their Subsidiaries
in connection with any of the transactions contemplated by this
Agreement. The Company shall pay all amounts set forth in
Schedule 3.9.
3.10. Prohibited Payments. Neither the Company nor SDC
--------------------
Prague nor any of their Subsidiaries has, directly or indirectly,
(a) made or agreed to make any contribution, payment or gift to
any government official, employee or agent where either the
contribution, payment or gift or the purpose thereof was illegal
under the Laws of any federal, state, local or foreign
jurisdiction, (b) established or maintained any unrecorded fund
asset for any purpose or made any false entries on its records
for any reason, (c) made or agreed to make any contribution, or
reimbursed any political gift or contribution made by any other
Person, to any candidate for federal, state, local or foreign
public office or (d) paid or delivered any fee, commission or any
other sum of money or item of property however characterized to
any finder, agent, government official or other party, in the
United States or any other country, which in any manner relates
to the assets, business or operations of the Company or SDC
Prague or any of their Subsidiaries, which SDC Prague knows or
has reason to believe to have been illegal under any federal,
state or local Laws (or any rules or regulations thereunder) of
the United States or any other country having jurisdiction.
-8-
3.11. Acquisition of Terex Stock for Investment; Ability to
Evaluate and Bear Risk.
-----------------------------------------------------
(a) SDC Prague is acquiring the Terex Stock for investment
and not with a view toward, or for sale in connection with, any
distribution in violation of the 1933 Act and has no present
intention of selling or engaging in any public distribution of
the same except pursuant to a registration or exemption pursuant
to the 1933 Act. SDC Prague acknowledges and agrees that the
Terex Stock may not be sold, transferred, offered for sale,
pledged, hypothecated or otherwise disposed of without
registration under the 1933 Act and any applicable securities
Laws, except pursuant to an exemption from such registration
under the 1933 Act and such Laws and subject to the limitations
and conditions set forth in Section 3 of the Registration Rights
Agreement.
(b) SDC Prague is an "accredited investor" within the
meaning of Rule 501 of Regulation D under the 1933 Act, as presently
in effect.
(c) SDC Prague (i) is able to bear the economic risk of
holding the Terex Stock for an indefinite period, (ii) can afford to
suffer the complete loss of its investment in the Terex Stock,
and (iii) has knowledge and experience in financial and business
matters such that SDC Prague is capable of evaluating the risks
of the investment in the Terex Stock.
3.12. Information Supplied; Disclosure. None of the
---------------------------------
information supplied or to be supplied by SDC Prague in writing
specifically for inclusion or incorporation by reference in the
Registration Statement on Form S-3 to be filed with the SEC by
Terex following the Closing in connection with the resale of
shares of Terex Stock issued under this Agreement and pursuant to
the terms of the Registration Rights Agreement (the "Registration
Statement") will, at the time the Registration Statement becomes
effective under the 1933 Act, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading.
SECTION 4. Representations and Warranties of Terex. Terex
----------------------------------------
represents and warrants to SDC Prague as of the date hereof as
follows.
4.1. Organization and Qualification. Terex (x) is a company duly
------------------------------
established and validly existing under, and is in good standing
under, the laws of Delaware and (y) has the full power and
authority to conduct its business and to own or lease and operate
its properties as and in the places where such business is now
conducted and such properties are now owned or leased and
operated, with such exceptions as, individually or in the
aggregate, have not had and are not reasonably likely to have a
Material Adverse Effect on Terex. Terex is qualified or
otherwise authorized to do business as a foreign corporation and
is in good standing in each jurisdiction in which the character
of the properties owned or held by it under lease or license or
Terex's business, as presently conducted, requires such
qualification or authorization, except where the failure so to
qualify or be authorized, individually or in the aggregate, has
-9-
not had and is not reasonably likely to have a Material Adverse
Effect on Terex. The Purchaser (x) is a company duly established
and validly existing under the laws of the Czech Republic and (y)
has the full power and authority to conduct its business and to
own or lease and operate its properties as and in the places
where such business is now conducted and such properties are now
owned or leased and operated, with such exceptions as,
individually or in the aggregate, have not had and are not
reasonably likely to have a Material Adverse Effect on the
Purchaser. The Purchaser is qualified or otherwise authorized to
do business as a foreign corporation and is in good standing in
each jurisdiction in which the character of the properties owned
or held by it under lease or license or the Purchaser's business,
as presently conducted, requires such qualification or
authorization, except where the failure so to qualify or be
authorized, individually or in the aggregate, has not had and is
not reasonably likely to have a Material Adverse Effect on the
Purchaser.
4.2. Due Authorization.
------------------
(a) Terex has all right, power and authority to enter into
the Transaction Documents to which it is a party and to consummate
the transactions contemplated thereby. The execution and
delivery of the Transaction Documents to which it is a party by
Terex and the compliance by Terex with all of the provisions of
the Transaction Documents to which it is a party and consummation
by Terex of the transactions contemplated thereby have been duly
authorized by all requisite corporate proceedings on the part of
Terex. The Transaction Documents to which Terex is a party have
been duly executed and delivered by Terex and constitute the
valid and binding agreements of Terex enforceable in accordance
with their terms, except that (i) such enforcement may be subject
to bankruptcy, insolvency, reorganization, moratorium or other
similar Laws now or hereafter in effect relating to creditors'
rights, and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(b) The Purchaser has all right, power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this
Agreement and compliance by the Purchaser with all the provisions
of this Agreement and consummation by the Purchaser of the
transactions contemplated hereby (i) are within the power and
authority of the Purchaser; and (ii) have been authorized by all
requisite proceedings on the part of the Purchaser (including the
approval or consent of the stockholders of the Purchaser). This
Agreement has been duly executed and delivered by the Purchaser
and constitutes the valid and binding agreement of the Purchaser,
enforceable in accordance with its terms, except that (i) such
enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar Laws now or hereafter
in effect relating to creditors' rights, and (ii) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
-10-
4.3. Consents. Except as set forth on Schedule 4.3 or as may be
---------
required by Czech Law or the rules and regulations of the
Securities Center, neither Terex nor the Purchaser is required to
obtain any consent, approval or authorization of, or to make any
declaration or filing with, any Governmental Entity or any other
Person as a condition to or in connection with the valid
execution and delivery of this Agreement or the other Transaction
Documents to which Terex or the Purchaser is a party or the
performance by Terex or the Purchaser of their respective
obligations in respect hereof and thereof except for such
consents, approvals or authorizations as may be required under
applicable federal and state securities Laws and except for any
approvals required by the Czech Office for Protection of Economic
Protection.
4.4. Brokers or Finders. No agent, broker, investment banker or
-------------------
other Person is or will be entitled to any broker's fee or any
other commission or similar fee from Terex or the Purchaser in
connection with any of the transactions contemplated by the
Transaction Documents to which Terex or the Purchaser is a party
for which the Company or SDC Prague will be responsible.
SECTION 5. Pre-Closing Covenants.
----------------------
5.1. Negative Agreements. Before the Closing, except as
---------------------
otherwise provided or contemplated herein, or as Terex and SDC
Prague may otherwise consent in writing, SDC Prague shall use its
best efforts as may be reasonably required to cause TATRA not to:
(a) declare, pay or set aside for payment any dividend or
other amounts or benefits in respect of any of its shares;
(b) directly or indirectly redeem, purchase or otherwise
acquire any shares of its capital stock;
(c) issue any shares or become a party to any subscriptions,
options, rights or commitments of any nature related to the
shares of TATRA;
(d) merge or consolidate with, or acquire all or a majority
share of the shares or assets of, any other entity;
(e) substantially change the character of the Business or
operate other than in the ordinary course of business and in the
manner consistent with past practices;
(f) execute without prior review of Terex and the Purchaser
any contract or arrangement which could have a material effect on
TATRA's future business operations; or
(g) amend the Founding Deed of TATRA.
-11-
5.2. Disclosure. Prior to the Closing Date, SDC Prague on the
-----------
one hand, and Terex and the Purchaser on the other hand, shall
promptly notify each other upon becoming aware of any material
breach of any representation, warranty or covenant contained in
this Agreement or the occurrence of any event that would cause
any representation or warranty of such party contained in this
Agreement, to no longer be true and correct in any material
respect or any covenant of such party contained in this
Agreement, to be incorrect or not be complied with.
5.3. Notification of Material Information. If prior to the
-------------------------------------
Closing Date, SDC Prague receives any information with respect to
TATRA which could reasonably be expected to have a material
effect on the decision of the Purchaser to acquire the TATRA
Shares hereunder (including, without limitation, any information
with respect to any litigation related to TATRA's trademarks or
trade names) it shall, without undue delay, disclose such
information to Terex and the Purchaser.
5.4. Cooperation.
(a) Prior to the Closing, SDC Prague on the one hand, and
Terex and the Purchaser on the other hand, each shall, and SDC Prague
shall use its reasonable best efforts to cause TATRA to, (i)
cooperate and consult with each other in determining which
consents, approvals, authorizations or waivers are required or
permitted to be obtained prior to the Closing Date from
Governmental Entities or other Persons in connection with the
execution of this Agreement and the consummation of the
transactions contemplated hereby, and (ii) use their reasonable
efforts to take, or cause to be taken, all other action and do,
or cause to be done, all other things necessary, proper or
appropriate to consummate and make effective the legal acts
contemplated by this Agreement.
(b) Subject to the terms and conditions of this Agreement,
SDC Prague on the one hand, and Terex and the Purchaser on the other
hand, shall use their reasonable best efforts to take, or cause
to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or desirable under applicable Laws and
agreements, to consummate as promptly as practicable the
transactions contemplated by this Agreement, and each shall
cooperate fully with the other parties hereto to that end.
5.5. Access to TATRA. Prior to the Closing, SDC Prague shall use
----------------
its reasonable efforts to cause TATRA to allow reasonable access
to TATRA's premises and persons for Terex, Purchaser, their
advisors and consultants during normal working hours.
5.6. No Solicitation.
----------------
(a) SDC Prague shall, and shall cause its directors, officers,
employees, agents, advisors and other representatives to, cease
discussions or negotiations, if any, with any parties other than
Terex or the Purchaser conducted prior to the date hereof with
respect to any Acquisition Proposal. SDC Prague shall not, and shall
-12-
cause its directors, officers, employees, agents, advisors
or other representatives not to (i) solicit or initiate the
making of any proposal that constitutes an Acquisition Proposal
or (ii) participate in any discussions or negotiations regarding
an Acquisition Proposal; provided, however, notwithstanding the
prohibition set forth in clause (ii) above, if either the
Executive of SDC Prague or the Board of Directors of the Company
determines in good faith, after consultation with its respective
outside counsel and financial advisor(s), that the failure to
participate in discussions or negotiations regarding an
Acquisition Proposal would be reasonably likely to constitute a
breach of its fiduciary duties to its respective stockholders or
creditors under applicable Law, then SDC Prague, subject to
compliance with Section 5.6(b), may (x) respond to a bona fide
Acquisition Proposal that the Executive of SDC Prague reasonably
and in good faith determines constitutes a Superior Proposal, (y)
furnish to the Person making such Acquisition Proposal non-public
information with respect to the Company, SDC Prague or TATRA
pursuant to a confidentiality agreement, and (z) participate in
negotiations regarding such Acquisition Proposal; provided,
further, that SDC Prague shall have complied with its obligations
under this Section 5.6 and the Company shall have complied with
its obligations under Section 7 of the Indemnification Agreement.
(b) SDC Prague shall promptly advise Terex of any
Acquisition Proposal and the material terms and conditions of each
such Acquisition Proposal. SDC Prague shall, to the extent
reasonably practicable, keep Terex informed on the status and
details (including amendments or proposed amendments) of any such
Acquisition Proposal.
(c) Nothing contained in this Section 5.6 shall prohibit
SDC Prague from making any disclosure to SDC Prague's stockholders
or creditors required under any applicable Law.
SECTION 6. Termination.
------------
6.1. General Provision. This Agreement may be terminated prior
------------------
to the Closing Date:
(a) at any time, upon the mutual written consent of each of
the parties hereto;
(b) by Terex or the Purchaser if the Closing Date shall not
have occurred by September 30, 2003; provided that Terex and the
Purchaser shall not have materially breached their obligations
hereunder; or
(c) by SDC Prague if the Closing Date shall not have occurred
by September 30, 2003; provided that SDC Prague shall not have
materially breached its obligations hereunder.
-13-
6.2. Termination by Terex or the Purchaser. Prior to the Closing
--------------------------------------
Date, Terex or the Purchaser may terminate this Agreement with
immediate effect by giving written notice to SDC Prague at any
time in the event (i) SDC Prague is in material breach of any of
its obligations hereunder or the Company is in material breach of
any of its obligations under the Indemnification Agreement; (ii)
Terex or the Purchaser has notified SDC Prague of such breach;
and (iii) such breach has continued without cure for a period of
15 consecutive days after written notice of such breach has been
provided to SDC Prague.
6.3. Termination by SDC Prague. Prior to the Closing Date, SDC
--------------------------
Prague may terminate this Agreement with immediate effect by
giving written notice to Terex and the Purchaser at any time in
the event:
(a) (i) Terex and the Purchaser are in material breach of
any of their obligations hereunder; (ii) SDC Prague has notified Terex
and the Purchaser of such breach; and (iii) such breach has
continued without cure for a period of 15 consecutive days after
written notice of such breach has been provided to Terex and the
Purchaser;
(b) the Company, SDC Prague and/or TATRA consummates, prior
to the Closing, a transaction or series of related transactions for
the provision of financing by a third party which is not a Terex
Competitor, the proceeds of which that are received by the
Company, SDC Prague and/or TATRA are equal to or greater than
$10,000,000 in the aggregate (a "Financing Transaction");
provided that (i) at least $10,000,000 of the proceeds of any
such Financing Transaction are used solely for the provision of
working capital to TATRA and (ii) the terms of any such Financing
Transaction are permitted by, and comply in all respects with,
the terms of each of the Loan Agreement and the TATRA Loan
Agreement, respectively;
(c) the Company, SDC Prague and/or TATRA consummates, prior
to the Closing, a transaction or series of related transactions for
the provision of financing by a third party which is a Terex
Competitor, the proceeds of which that are received by the
Company, SDC Prague and/or TATRA are equal to or greater than
$10,000,000 in the aggregate (a "Competitive Financing
Transaction"); provided that (i) at least $10,000,000 of the
proceeds of any such Financing Transaction are used solely for
the provision of working capital to TATRA and (ii) the terms of
any such Competitive Financing Transaction are permitted by, and
comply in all respects with, the terms of each of the Loan
Agreement and the TATRA Loan Agreement, respectively;
(d) if, in connection with a Superior Proposal, either the
Executive of SDC Prague or the Board of Directors of the Company
determines, in its good faith judgment, after consultation with
its respective outside legal counsel and financial advisor(s),
that failure to do so would constitute a breach of its fiduciary
duties to its respective stockholders or creditors under
applicable Law; provided, however, that, (i) prior to termination
of this Agreement under this Section 6.3(d), SDC Prague shall
have notified Terex in writing of SDC Prague's intention to
terminate this Agreement and of SDC Prague's and/or the Company's
intention to enter into an agreement with respect to a Superior
Proposal (collectively, the "Intention Notice"), which such
Intention Notice shall
-14-
be delivered to Terex at least three Business Days before such
intended termination (the "Terex Review Period"), and shall
have provided Terex with the proposed definitive documentation for
such transaction and (ii) during the Terex Review Period SDC
Prague shall have afforded Terex and Purchaser a reasonable
opportunity to make such adjustments to the terms and conditions
of this Agreement as would enable SDC Prague to proceed with the
transactions contemplated hereby in a manner consistent with its
fiduciary duties to its stockholders or creditors. The Intention
Notice (including SDC Prague's right to terminate this Agreement)
shall not be effective if Terex and Purchaser submit to SDC Prague
during the Terex Review Period a legally binding, executed offer
to enter into an amendment to this Agreement within such Terex
Review Period unless the Executive of SDC Prague or the Board of
Directors of the Company shall have determined in good faith, after
consultation with its respective outside legal counsel and
financial advisor(s), that the amendment to this Agreement that
Terex and Purchaser have agreed to enter into during such Terex
Review Period is not at least as favorable to SDC Prague's or the
Company's stockholders or creditors, as applicable, as the Superior
Proposal.
6.4. Effect of Termination. If this Agreement is terminated
----------------------
pursuant to this Section 6, all further obligations of the
parties hereunder shall terminate and no damages or other
compensation shall be payable by any party, except that nothing
in this Section 6.4 shall relieve any party hereto of any
liability pursuant to this Section 6.4 or for any willful breach
of this Agreement that occurred prior to the termination of this
Agreement.
(a) In the event of a termination by SDC Prague pursuant
to Sections 6.3(b), 6.3(c) or 6.3(d) hereof, SDC Prague shall pay in
cash to Terex, simultaneous with any such termination, (i) all
accrued and unpaid interest owed by the Company, SDC Prague
and/or TATRA as of the date of such termination, in each case,
pursuant to the Loan Agreement and the TATRA Loan Agreement and
(ii) unpaid fees and expenses in the amount of $626,468.29.
(b) In the event of a termination by SDC Prague pursuant
to Sections 6.3(c) or 6.3(d) hereof, SDC Prague shall pay in cash to
Terex, simultaneous with any such termination and in addition to
any amounts owed to Terex pursuant to Section 6.4(a), (i) the
entire outstanding principal balance and premium, if any, owed by
the Company, SDC Prague and/or TATRA, as of the date of such
termination, pursuant to the Loan Agreement and the TATRA Loan
Agreement.
(c) In the event of a termination by SDC Prague pursuant
to Section 6.3(d) hereof, SDC Prague shall pay in cash to Terex,
simultaneous with any such termination and in addition to any
amounts owed to Terex pursuant to Sections 6.4(a) and 6.4(b),
$500,000.
SECTION 7. [Intentionally omitted.]
-15-
SECTION 8. Survival of Representations, Warranties, Agreements
---------------------------------------------------
and Covenants, Etc. All representations and warranties hereunder
-------------------
shall be deemed to be made solely as of the date of this Agreement
and shall survive one year. None of the representations and
warranties shall be affected by any knowledge possessed by, or
investigation of the subject matter thereof made by or on behalf
of, Terex or the Purchaser. All statements contained in any
schedule to this Agreement or in any certificate or other instrument
delivered by SDC Prague pursuant to Section 2.3 shall constitute
representations and warranties by SDC Prague under this Agreement.
All covenants and agreements contained herein shall survive
indefinitely until, by their respective terms, they are no longer
operative.
SECTION 9. Indemnification.
----------------
9.1. General Indemnification. SDC Prague shall indemnify, defend
------------------------
and hold Terex, the Purchaser and each of their respective
officers, directors, partners, managing directors, Affiliates,
employees, agents, consultants, representatives, successors and
assigns (each a "Purchaser Indemnitee") harmless from and against
all Losses incurred or suffered by a Purchaser Indemnitee arising
out of, relating to or resulting from (i) any breach of any of
the representations or warranties made by SDC Prague in this
Agreement or in any certificate or other instrument delivered
pursuant hereto including, without limitation, the Transaction
Documents, and (ii) any breach of any of the covenants or
agreements made SDC Prague in this Agreement or in any
certificate or other instrument delivered pursuant hereto
including, without limitation, the Transaction Documents. Terex
and the Purchaser shall indemnify, defend and hold SDC Prague,
its Affiliates and each of their respective officers, directors,
employees, agents, consultants, representatives, successors and
assigns (each a "Seller Indemnitee") harmless against all Losses
arising from the breach of any of the covenants or agreements of
the Purchaser in this Agreement or in any certificate or other
instrument delivered pursuant hereto including, without
limitation, the Transaction Documents. Notwithstanding anything
to the contrary in this Agreement, (a) any and all payments by
SDC Prague pursuant to this Section 9 with respect to breach of
representations or warranties shall be limited to, in the
aggregate, an amount equal to $10,000,000 (less any amounts paid
by the Company to Terex or the Purchaser pursuant to Section 8 of
the Indemnification Agreement) and no indemnification payment by
SDC Prague with respect to any such Losses otherwise payable
hereunder shall be payable until such time as all such Losses
(exclusive of attorneys' fees or other expenses of investigation
or defense) shall aggregate to more than $250,000 (including any
Losses payable pursuant to Section 8 of the Indemnification
Agreement), and then only to the extent that such Losses
(including any Losses payable pursuant to Section 8 of the
Indemnification Agreement), in the aggregate, exceed such amount.
In determining whether a Purchaser Indemnitee is entitled to
recover under this Section 9 for any Losses, the representations
and warranties of SDC Prague shall not be deemed qualified by any
references to materiality contained therein and any breaches
thereof shall be determined without regard to whether such breach
constitutes a Material Adverse Effect or Material Adverse Change.
Notwithstanding anything to the contrary in this Agreement, (a)
any and all payments by Terex and the Purchaser pursuant to this
-16-
Section 9 with respect to breach of representations or warranties
shall be limited to, in the aggregate, an amount equal to
$10,000,000 and no indemnification payment by Terex and the
Purchaser with respect to any such Losses otherwise payable
hereunder shall be payable until such time as all such Losses
(exclusive of attorneys' fees or other expenses of investigation
or defense) shall aggregate to more than $250,000, and then only
to the extent that such Losses, in the aggregate, exceed such
amount. In determining whether a Seller Indemnitee is entitled
to recover under this Section 9 for any Losses, the
representations and warranties of Terex and the Purchaser shall
not be deemed qualified by any references to materiality
contained therein and any breaches thereof shall be determined
without regard to whether such breach constitutes a Material
Adverse Effect or Material Adverse Change
9.2. Indemnification Principles. For purposes of this Agreement,
---------------------------
"Losses" shall mean each and all of the following items: claims,
losses (excluding losses of earnings or similar consequential or
indirect losses), liabilities, obligations, payments, damages
(excluding indirect or similar damages), charges, judgments,
fines, penalties, amounts paid in settlement, costs and expenses
(including, without limitation, interest which may be imposed in
connection therewith, reasonable costs and expenses of
investigation, actions, suits, proceedings, demands, assessments
and reasonable fees, expenses and disbursements of counsel,
consultants and other experts); provided, however, that for
purposes of calculating Losses pursuant to this Section 9, Losses
of the Company shall be calculated net of any reduction to the
Tax liability of the Company actually realized as a result of any
such item giving rise to a Tax deduction to the Company. Any
indemnification payment by SDC Prague to any Purchaser Indemnitee
pursuant to this Section 9 shall include an additional amount so
that the Purchaser Indemnitee does not, directly or indirectly,
bear any portion of such payment made by SDC Prague with respect
to such payment on account of the Purchaser Indemnitee's direct
or indirect investment in the Company. To the extent permitted
by Law, any payment by SDC Prague to Purchaser pursuant to this
Section 9 shall be treated for all income Tax purposes as an
adjustment to the price paid by the Purchaser for the TATRA
Shares pursuant to this Agreement.
9.3. Claim Notice. Any claim for indemnification pursuant to
-------------
this Section 9 must be made before the expiration of the survival
periods set forth in Section 8 of this Agreement. No party shall
be entitled to indemnification against a Loss arising from the
breach of any representations or warranties of any other party
unless the party seeking indemnification shall have given to the
party from whom indemnification is being sought a claim notice
relating to such Loss (a "Claim Notice") prior to expiration of
the representation or warranty upon which the claim is based.
The Claim Notice shall be given reasonably promptly (but, in the
case of a third party claim against the indemnified party, within
15 days after the indemnified party has received written
notification of such claim) after the party seeking indemnity
becomes aware of the facts indicating that a claim for
indemnification may be warranted. Each Claim Notice shall
specify in reasonable detail (to the extent known) the nature of
the claim, the applicable provision(s) of this Agreement or other
instrument under which the claim for indemnity arises, and, if
-17-
possible, the amount or the estimated amount thereof. The
failure of any indemnified party to give a Claim Notice shall not
relieve the indemnifying party of its obligations under this
Section 9, except to the extent that the indemnified or
indemnifying party is actually materially prejudiced by failure
to give such Claim Notice. The indemnifying party may, through
counsel of its own choosing and reasonably satisfactory to the
indemnified party, assume the defense thereof or other
indemnification obligation with respect thereto; provided,
however, that (a) any indemnified party shall be entitled to
participate in any such claim with counsel of its own choice but
at its own expense and (b) any indemnified party shall be
entitled to participate in any such claim with counsel of its own
choice at the expense of the indemnifying party if representation
of both parties by the same counsel is otherwise inappropriate
under applicable standards of professional conduct or the
indemnified party is otherwise adversely affected thereby. In
any event, if the indemnifying party fails to take reasonable
steps necessary to defend diligently the action or proceeding
within 20 days after receiving the notice from such indemnified
party that the indemnifying party has failed to do so, the
indemnified party may assume such defense or other
indemnification obligation and the fees and expenses of its
attorneys will be covered by the indemnity provided for in this
Section 9. Notwithstanding anything in this Section 9 to the
contrary, the indemnifying party shall not, without the written
consent of the indemnified party, settle or compromise any
pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether
or not the indemnified party is an actual or potential party to
such action or claim) or consent to the entry of any judgment (i)
which does not, to the extent that an indemnified party may have
any liability with respect to such action or claim, include as an
unconditional term thereof the delivery by the claimant or
plaintiff to the indemnified party of a written release from all
liability in respect of such action or claim, (ii) which includes
any statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of any indemnified party, or
(iii) in any manner that involves any injunctive relief against
the indemnified party or may materially and adversely affect the
indemnified party. Notwithstanding anything in this Section 9 to
the contrary, the indemnified party may not compromise or settle
any claim without the prior written consent of the indemnifying
party (which consent shall not be unreasonably withheld or
delayed), unless the sole relief granted is equitable relief for
which the indemnifying party would have no liability or to which
the indemnifying party would not be subject.
SECTION 10. Remedies. In case any one or more of the
---------
covenants and/or agreements set forth in this Agreement shall
have been breached by SDC Prague, the Purchaser may proceed to
protect and enforce its rights either by suit in equity and/or by
action at Law, including, but not limited to, an action for
damages as a result of any such breach and/or an action for
specific performance of any such covenant or agreement contained
in this Agreement; provided, however, that the indemnification
provisions set forth in Section 9 hereof shall be the sole and
exclusive monetary damages remedy for any breach of the
Transaction Documents during the period ending one year from the
date hereof, other than for breaches involving fraud or bad
faith.
-18-
SECTION 11. Payment of Expenses. At any time or from time to
--------------------
time after the Closing, the Company and SDC Prague may present
Terex with a written request for reimbursement for expenses and
costs, accompanied by an itemized description of such expenses
and costs and by such supporting documentation as Terex may
reasonably request, incurred by SDC Prague (i) in connection with
obtaining an opinion with respect to the transactions
contemplated by this Agreement from Capitalink LLC (the
"Capitalink Expenses"), and (ii) in connection with the rendering
of legal services to the Company and SDC Prague by ββββββ βββββ�
ββββββββ & βββββββ� LLP with respect to the transactions
contemplated by this Agreement (the "Legal Fees"). Terex agrees
to reimburse SDC Prague for the Capitalink Expenses in an amount
not to exceed $150,000 in the aggregate and for the Legal Fees in
an amount not to exceed $100,000 in the aggregate, in each case
within 30 days of Terex's receipt of such written request and
supporting documentation.
SECTION 12. Further Assurances. At any time or from time to
-------------------
time after the Closing, SDC Prague, on the one hand, and Terex
and the Purchaser, on the other hand, agree to cooperate with
each other, and at the request of the other party, to execute and
deliver any further instruments or documents and to take all such
further action as the other party may reasonably request in order
to evidence or effectuate the consummation of the transactions
contemplated hereby relating to the TATRA Purchase and to
otherwise carry out the intent of the parties hereunder.
SECTION 13. Legends. SDC Prague acknowledges and agrees that,
except for certificates representing shares of Terex Stock which
are subject to an effective Registration Statement filed by Terex
or until no longer required by applicable Law, the certificates
evidencing the Terex Stock issued pursuant to this Agreement
shall contain a legend substantially as follows (it being agreed
that Terex will provide replacement certificates without any such
legend if not required by applicable Law in Terex's reasonable
judgment upon request by SDC Prague):
The shares represented by this certificate
have not been registered under the
Securities Act of 1933. The shares
represented by this certificate may only be
sold or transferred if they are at the time
registered under the Securities Act of 1933
or if the sale or transfer thereof is not
required to be so registered or is made
pursuant to an exemption from registration
provided by said Act or the rules and
regulations promulgated thereunder. The
shares represented by this certificate are
subject to the restrictions set forth in
Stock Purchase Agreement, dated as of August
28, 2003, by and among SDC Prague, S.R.O,
Terex Corporation, and GP Omikron, S.R.O.
and the Registration Rights Agreement, dated
as of August, 28 2003, by and among SDC
Prague, S.R.O. and Terex Corporation.
-19-
SECTION 14. Successors and Assigns. This Agreement shall
-----------------------
bind and inure to the benefit of SDC Prague, Terex and the Purchaser
and the respective successors, assigns, heirs and personal
representatives of SDC Prague, Terex and the Purchaser. SDC
Prague acknowledges that, subject to compliance with applicable
securities Laws, Purchaser may transfer, all or part of, the
TATRA Shares acquired by it hereunder and assign, all or part of,
its rights and obligations under this Agreement.
SECTION 15. Entire Agreement. This Agreement and the other
-----------------
writings referred to herein or delivered pursuant hereto,
including the Transaction Documents, which form a part hereof
contain the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior and
contemporaneous arrangements or understandings with respect
thereto.
SECTION 16. Notices. All notices, requests, consents and
--------
other communications hereunder to any party shall be deemed to be
sufficient if contained in a written instrument delivered in
person or sent by confirmed transmission by telecopy, or five (5)
days (or earlier if received) after deposit with a nationally
recognized overnight courier or first class registered or
certified mail, return receipt requested, postage prepaid,
addressed to such party at the address set forth below or such
other address as may hereafter be designated in writing by such
party to the other parties:
if to SDC Prague, to:
SDC International, Inc.
βββ� βββββββ� βββββ�
ββββ βββββ�, ββ βββββ�
Telecopy No.: (βββ�) βββ�-ββββ
Attention: ββ. ββββββ β�. βββββ�, Chairman/CEO
with a copy to:
ββββββ βββββ� ββββββββ & βββββββ� LLP
βββ� βββββ� ββββββ
βββ� ββββ, ββ βββββ�
Telecopy No.: (βββ�) βββ�-ββββ
Attention: ββββββ βββββ�, Esq.
and
if to Purchaser or Terex, to:
Terex Corporation
βββ� ββββ ββββ ββββ, βββββ� βββ�
ββββββββ, ββ βββββ�
-20-
Telecopy: (βββ�) βββ�-ββββ
Attention: ββββ β� βββββ�, Esq.
with copies to:
Fried, Frank, Harris, βββββββ� & ββββββββ
βββ� βββ� ββββ βββββ�
βββ� ββββ, ββ βββββ�
Telecopy: (βββ�) βββ�-ββββ
Attention: ββββββ β�. ββββββββββ, Esq.
and
βββββ� & Partner, v.o.s.
Palac Myslbek
ββββββ βββ� β�
βββ� ββ - βββββ� β�
Telecopy: 420--2-222 444 69
Attention: βββββ� βββββ�, Esq.
All such notices, requests, consents and other
communications shall be deemed to have been given when received.
SECTION 17. Amendments. The terms and provisions of this
-----------
Agreement may be modified or amended, or any of the provisions
hereof waived, temporarily or permanently, pursuant to the
written consent of SDC Prague and Terex.
SECTION 18. Counterparts. This Agreement may be executed
-------------
in any number of counterparts, and each such counterpart hereof
shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
SECTION 19. Headings. The headings of the sections of this
---------
Agreement have been inserted for convenience of reference only
and shall not be deemed to be a part of this Agreement.
SECTION 20. Nouns and Pronouns. Whenever the context may
-------------------
require, any pronouns used herein shall include the corresponding
masculine, feminine or neuter forms, and the singular form of
names and pronouns shall include the plural and vice versa.
SECTION 21. Governing Law. This Agreement shall be governed
--------------
by and construed in accordance with the laws of the State of New
York without giving effect to
-21-
the principles of conflicts of law. Each of the parties hereto
hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the courts of the State of New York and
of the United States of America, in each case located in the County
of New York, for any litigation arising out of or relating to this
Agreement and the transactions contemplated hereby (and agrees not
to commence any litigation relating thereto except in such courts),
and further agrees that service of any process, summons, notice or
document by U.S. registered mail to its respective address set
forth in this Agreement, or such other address as may be given by
one or more parties to the other parties in accordance with the
notice provisions of Section 16, shall be effective service of
process for any litigation brought against it in any such court.
Each of the parties hereto hereby irrevocably and unconditionally
waives any objection to the laying of venue of any litigation arising
out of this Agreement or the transactions contemplated hereby in
the courts of the State of New York or the United States of
America, in each case located in the County of New York, and
hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such litigation
brought in any such court has been brought in an inconvenient
forum.
SECTION 22. Severability. If any term, provision, covenant or
-------------
restriction of this Agreement or any exhibit hereto is held by a
court of competent jurisdiction to be invalid, void or
unenforceable, (i) such provision shall be deemed to be restated
to reflect as nearly as possible the original intentions of the
parties in accordance with applicable Law and (ii) the remainder
of the terms, provisions, covenants and restrictions of this
Agreement and such exhibits shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
SECTION 23. Definitions. For purposes of this Agreement:
------------
"Acquisition Proposal" shall mean (i) any proposal or
----------------------
offer from any Person relating to any direct or indirect
acquisition or purchase of any of the TATRA Shares or the direct
or indirect acquisition or purchase of any of the outstanding
voting securities of the Company or SDC Prague, (ii) any tender
offer, exchange offer or other transaction that, if consummated,
would result in any Person beneficially owning (A) 20% or more of
the outstanding voting securities of TATRA or SDC Prague or (B)
35% or more of the outstanding voting securities of the Company;
or (iii) any merger, consolidation, business combination, sale of
substantially all of the assets, recapitalization, liquidation,
dissolution or similar transaction involving the Company, SDC
Prague or TATRA, other than, in each case, the transactions
contemplated by this Agreement.
"Affiliate" shall have the meaning ascribed to such
-----------
term in Rule 12b-2 of the General Rules and Regulations under the
Exchange Act.
-22-
"Business" means the assembly and production of motor
----------
vehicles and further activities entered in the Commercial
Register as the subject of the business of TATRA.
"Business Day" means any day other than a Saturday,
---------------
Sunday or a day on which banks in New York City are authorized or
obligated by Law or executive order to close.
"Closing Price" means the closing sale price of Terex
----------------
Stock as supplied by the NYSE.
"Contract Shares" means bearer shares in book-entry
------------------
form, each with a current nominal value of CZK 250, with such
nominal value being decreased to CZK 100, of the registered
capital of TATRA.
"Encumbrance" means any security interest, mortgage,
-------------
pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or otherwise), charge against or
interest in property, or other priority or preferential
arrangement of any kind or nature whatsoever that has the same
practical effect as a security interest, to secure payment of a
debt or performance of an obligation.
"Exchange Act" means the Securities Exchange Act of
---------------
1934, as amended, or any successor federal statute, and the rules
and regulations of the Commission thereunder, all as the same
shall be in effect at the time.
"Governmental Entity" means any supernational, national,
---------------------
foreign, federal, state or local judicial, legislative, executive,
administrative or regulatory body or authority.
"Guarantees" means (i) the guarantee, dated as of
------------
December 27, 2001, made by SDC Prague in favor of Terex, (ii) the
guarantee, dated as of February 20, 2002, made by SDC Prague in
favor of Terex (as amended on February 20, 2002) and (iii) the
guarantee, dated as of February 20, 2002, made by the Company in
favor of Terex.
"Indemnification Agreement" means the Indemnification
----------------------------
Agreement, dated as of the date hereof, by and among the Company,
Terex and Purchaser.
"Law" includes any foreign, federal, state, or local
-----
law, statute, ordinance, rule, regulation, order, judgment or
decree.
"Loan Agreement" means the loan agreement, dated as of
----------------
December 27, 2001, by and between the Company and Terex.
"Material Adverse Change" means a change, individually
--------------------------
or in the aggregate that has or may reasonably be expected to
have a Material Adverse Effect.
-23-
"Material Adverse Effect" means any event, change or
--------------------------
occurrence which has had, or is reasonably likely to have,
individually or together with any other event, change or
occurrence a material adverse effect on the business, operations,
properties, assets, condition (financial or other) or the results
of operations of the applicable Person and its Subsidiaries, if
any, taken as a whole.
"Notes" means the 9.00% Convertible Note due December
-------
31, 2004 in the aggregate principal amount of $6,069,900 and the
9.00% Convertible Note due December 31, 2004 in the aggregate
principal amount of $2,000,000.
"NYSE" means the New York Stock Exchange.
------
"Person" means any individual, corporation, limited
--------
liability company, partnership, limited partnership, syndicate,
person, trust, association or entity or government, political
subdivision, agency or instrumentality of a government.
"Pledge Agreements" means (i) the Pledge Agreement
--------------------
Concerning Shares of the Company TATRA, a.s., dated December 28,
ββββ, βββββββ� βββ� ββββββ βββ� βββββ�, (ββ) the Pledge Agreement
Concerning Business Share of the Company SDC Prague, dated
December 28, 2001, between the Company and Terex, (iii) the
Pledge Agreement Concerning Shares of the Company TATRA, a.s.,
dated February 21, 2002, between SDC Prague and Terex and (iv)
the Pledge Agreement Concerning Business Share of the Company SDC
Prague, dated February 21, 2002, between SDC and Terex.
"Securities Act" means Act No. 591/1992 Coll. On
-----------------
Securities, as amended and in force and effect from time to time.
"Securities Center" means the legal entity, established
-------------------
pursuant to the Securities Act, that maintains the register of
book-entry securities and performs other activities under the
Securities Act.
"Subsidiary" means, with respect to any Person, any
------------
company, corporation, partnership, limited liability company or
other entity (A) of which shares of capital stock or other
ownership interests having ordinary voting power to elect a
majority of the board of directors or other similar managing body
of such company, corporation, partnership, limited liability
company or other entity are at the time owned or controlled,
directly or indirectly, by such Person or (B) the management of
which is otherwise controlled, directly or indirectly, through
one or more intermediaries by such Person. SDC Prague and TATRA
shall each be deemed to be a Subsidiary of the Company.
"Superior Proposal" means any bona fide, unsolicited,
--------------------
third party written Acquisition Proposal obtained not in breach
of this Agreement to acquire, directly or indirectly, for
consideration consisting solely of cash or cash equivalents
(including, without limitation, registered or immediately
registrable equity securities of a U.S. public company), 100% of
the outstanding equity securities of SDC Prague or 100% of the
-24-
TATRA Shares, on terms that the Executive of SDC Prague or the
Board of Directors of the Company determine in their respective
good faith judgment (based, with respect to consideration
payable, upon the advice of SDC Prague's or the Company's outside
financial advisor(s), as applicable) (i) to provide greater value
from a financial point of view to SDC Prague's or the Company's
stockholders and creditors taken as a whole than the transactions
contemplated by this Agreement and the Termination Agreement, (y)
to be capable of being consummated, taking into account the
Person making the proposal and all legal, financial, regulatory
and other aspects of the Acquisition Proposal and (z) if
financing is necessary in order to consummate such Acquisition
Proposal, to be supported by available financing or a financing
commitment letter; provided, however, that any such letter not be
subject to any non-traditional conditions (including, without
limitation, any due diligence condition or any condition relating
to the financial condition or operating results of any party).
"TATRA Loan Agreement" means that certain Loan
----------------------
Agreement, dated as of February 20, 2002, between Terex, TATRA,
the Company and SDC Prague.
"Taxes" means all federal, state, local or foreign
-------
taxes, including but not limited to income, gross receipts,
windfall profits, value added, severance, property, production,
sales, use, license, excise, franchise, employment, withholding
or similar taxes, together with any interest, additions or
penalties with respect thereto and any interest in respect of
such additions or penalties.
"Trading Day" means a day on which the NYSE is open for
-------------
trading and a Closing Price is supplied for the Terex Stock.
"Terex Competitor" shall mean each of the following
------------------
entities and their respective Subsidiaries and Affiliates: Osh
Kosh Trucks, βββββββ� & βββββββββ�, Caterpillar, Volvo, Komatsu,
Liebherr, βββββββββ� ββββ, Manitowoc, JLG Industries, Textron,
ββββ Deere, Altec, Moxy, ββββ, Case/New Holland, Euclid/Hitachi
and Joy Global.
"Transaction Documents" means this Agreement, the
-----------------------
Registration Rights Agreement, the Termination Agreement and the
Indemnification Agreement.
"Voting Securities" means the Common Stock and any
-------------------
other securities of the Company or any Subsidiary of the Company
(or any other corporation or joint stock company) which are then
entitled to vote generally in the election of directors of the
Company or such Subsidiary of the Company (or such other
corporation or joint stock company).
SECTION 24. Currency. The term "$" means United States
---------
Dollars. The term "CZK" means Czech crowns, the official
currency of the Czech Republic.
-25-
[Remainder of Page Intentionally Left Blank]
-26-
IN WITNESS WHEREOF, the parties hereto have duly
executed this Stock Purchase Agreement as of the date first above
written.
Terex Corporation
By: /s/ ββββ β� βββββ�
-------------------------------------
Name: ββββ β� βββββ�
Title: Senior Vice President
GP OMIKRON, S.R.O.
By: /s/ ββββ ββββββββ
-------------------------------------
Name: ββββ ββββββββ
Title: General Manager
Counterpart Signature Page to Stock Purchase Agreement
SDC Prague, S.R.O.
By: /s/ Edita Stedra
-------------------------------------
Name: Edita Stedra
Title: Executive
Counterpart Signature Page to Stock Purchase Agreement