MASTER ASSET PURCHASE AGREEMENT BY ... - Canadian Stocks

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EXHIBIT C-2 Form of Transition Services Agreement – Seller This Transition Services Agreement (this “Agreement”) is entered into as of ________, 2012 (the “Effective Date”), by and between [Caterpillar Global Mining LLC (f/k/a Bucyrus International, Inc.), a limited liability company organized under the laws of the State of Delaware] (“Seller”), and [Finning International Inc., a corporation organized under the federal laws of Canada] (“Buyer”). Seller and Buyer are sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties.” Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Purchase Agreement (as defined below). W I T N E S S E T H : WHEREAS, Seller and Buyer have entered into that certain Master Asset Purchase Agreement dated as of __________, 2012 (the “Purchase Agreement”), pursuant to which the Buyer Parties will purchase from Seller and the Seller Parties certain assets relating to the Local Distribution Businesses, as described in the Purchase Agreement; and WHEREAS, in connection therewith, Seller will provide, or cause to be provided, to Buyer certain Services (as defined below) in accordance with the terms and subject to the conditions set forth herein. NOW, THEREFORE, the Parties, intending to become legally bound, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, agree as follows. ARTICLE VIII PROVISION OF SERVICES 8.01 Services. Seller shall provide, or cause to be provided, to Buyer: (i) the general services described on Schedule A attached hereto (the “General Services”); and (ii) the information systems services (if any) described on Schedule B attached hereto (the “Information Systems Services”). As used in this Agreement, “Service” shall mean any General Service or Information Systems Service and “Services” shall mean the General Services and the Information Systems Services collectively. 8.02 Provision of Services. (a) Seller shall not be obligated to provide any services other than those Services specifically set forth in Schedules A and B. The Services shall be provided in accordance with and subject to the terms, limitations and conditions set forth in this Agreement. Except as specifically set forth in Schedule A or B, or unless otherwise mutually agreed upon by the Parties in writing, to the extent practicable, the Services shall be performed by Seller for Buyer in a manner that is substantially similar to the manner in which such Services were generally performed by, or on behalf of, Seller or Seller Parties for the Local Distribution Businesses C2-2 Exhibit C-2 Form of Initial Closing TSA - Seller
immediately prior to the Effective Date, including, in the case of Information Systems Services, the outsourcing of any Services that Seller or Seller Parties previously outsourced. Buyer shall use such Services for substantially the same purposes and in substantially the same manner as the Local Distribution Businesses had used such Services immediately prior to the Effective Date. (b) Notwithstanding anything to the contrary contained herein, including Sections 1.01, 1.02 and 1.03, Seller shall not be obligated to provide any Service if the provision of such Service would violate any Legal Requirement or any agreement or license to which a Seller or Seller Party is subject. (c) Seller may, from time to time, reasonably supplement, modify, substitute or otherwise alter the Services to be provided hereunder, in a manner that does not materially decrease the quality or availability of such Services below the standard set forth in Section 1.02(a). Seller shall use good faith endeavors to notify Buyer of the nature of the supplement, modification, substitution or alteration to the Services, pursuant to Seller’s normal change notification procedures in the ordinary course of business. (d) Seller shall have the right to use subcontractors to provide, or assist Seller and its affiliates in the provision of, the Services. (e) The provision of Information Systems Services hereunder shall be subject in all cases to the availability of third party providers of such Information Systems Services and the willingness of such third party providers to permit such Information Systems Services to be made available to Buyer. (f) Buyer may obtain services from any other entity, in order to enable such services to operate in parallel to the Services provided by Seller, provided that Buyer complies with its confidentiality and other obligations under this Agreement and Buyer will be fully responsible for any disruption or other adverse impact that may result from or in connection with such other services or operation in parallel. (g) In providing the Services, Seller will use reasonable endeavors to act in accordance with the reasonable directions of Buyer, provided that such directions are not inconsistent with the terms of this Agreement or any Legal Requirement and provided further that Buyer will be fully responsible for any disruption or other adverse impact or other consequences that may result from or in connection with such Buyer directions. Seller will perform the Services in the manner required by this Agreement. 8.03 Use of Services. Seller shall be required to provide, or cause to be provided, to Buyer the Services only in connection with Buyer’s conduct of the Local Distribution Businesses substantially as the Local Distribution Businesses were conducted by Seller and the Seller Parties immediately prior to the Effective Date. Seller shall not be required to provide, or cause to be provided, any Services with respect to any business conducted by Buyer other than with respect to its continuation of the Local Distribution Businesses. Buyer shall not resell any of the Services to any Person whatsoever. Buyer shall not use the Services in any way other than in connection with the conduct of the Local Distribution Businesses in the ordinary course consistent with Seller’s past practice. C2-3 Exhibit C-2 Form of Initial Closing TSA - Seller
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MASTER ASSET PURCHASE AGREEMENT BY
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TABLE OF CONTENTS (continued) - ii
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TABLE OF CONTENTS (continued) - iv
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MASTER ASSET PURCHASE AGREEMENT THI
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deliver to Seller a written stateme
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into account in connection with the
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or the Canada Purchase Agreement or
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Parties may otherwise agree (the
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event beyond the Initial Closing Ou
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(iii) except as set forth in Sectio
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(iv) any Assumed Contract granting
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(v) all material policies and pract
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3.14 Compliance with Laws. Except a
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(b) Except for the Mandatory Antitr
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5.2 Transfer Taxes. Except as provi
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delayed, (1) sell, lease, subject t
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other and, upon request, to any Gov
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(b) From the date of this Agreement
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that (i) Seller and the Seller Part
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Disclosure Schedules specifying suc
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Initial Closing and (y) with a doub
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efurbishment, restoration or repair
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7.1 Representations; Warranties; Co
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(d) any Excluded Assets; (e) any ob
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to (x) $46,500,000 minus (y) the ag
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event or circumstance that gave ris
Page 53 and 54: 9.7 Survival of Representations and
Page 55 and 56: 10.3 Entire Agreement; Amendment; W
Page 57 and 58: 10.10 Bulk Sales Law. Buyer acknowl
Page 59 and 60: (viii) the Transferred Licenses. Fo
Page 61 and 62: “Assumed Liabilities” shall hav
Page 63 and 64: “Canada Business” shall mean th
Page 65 and 66: Closing Date (with respect to the C
Page 67 and 68: “Initial Closing Business” shal
Page 69 and 70: “Lien” shall mean any charge, c
Page 71 and 72: detract from, materially diminish t
Page 73 and 74: “Transferred Employees” shall m
Page 75 and 76: EXHIBIT A-1 Canada Territories 1. A
Page 77 and 78: EXHIBIT B Form of Initial Closing T
Page 79 and 80: IN WITNESS WHEREOF, the parties her
Page 81 and 82: APPENDIX A 3 [APPENDIX TO BE COMPLE
Page 83 and 84: (other than the Initial Closing Ass
Page 85 and 86: FINNING INTERNATIONAL INC. By: ____
Page 87 and 88: EXHIBIT C-1 Form of Initial Closing
Page 89 and 90: immediately prior to the Effective
Page 91 and 92: Information. Seller shall cooperate
Page 93 and 94: 3.05 Return of Books and Records. S
Page 95 and 96: “Confidential Information” shal
Page 97 and 98: 7.03 Succession and Assignment. Exc
Page 99 and 100: 7.09 Severability. In the event tha
Page 101 and 102: Schedule A General Services C1-15 E
Page 103: EXHIBIT C-2 Form of Initial Closing
Page 107 and 108: (c) Buyer acknowledges that it will
Page 109 and 110: appointment of a trustee or receive
Page 111 and 112: 11.04 Duty to Mitigate. Each Party
Page 113 and 114: ARTICLE XIII INTELLECTUAL PROPERTY
Page 115 and 116: (b) If to Buyer: Finning Internatio
Page 117 and 118: Date. IN WITNESS WHEREOF, the Parti
Page 119 and 120: Schedule B Information Systems Serv
Page 121 and 122: CONTRATO DE DEPOSITO POR CUENTA AJE
Page 123 and 124: El cliente podrá exigir la devoluc
Page 125 and 126: EXHIBIT C-4 Form of Initial Closing
Page 127 and 128: 3. Bucyrus Chile declara que cumple
Page 129 and 130: dependencias de Finning Chile ubica
Page 131 and 132: a) Listado de los trabajadores de l
Page 133 and 134: que deberá ser pagada conforme a l
Page 135 and 136: De igual manera, , Bucyrus Chile se
Page 137 and 138: mediando tal aprobación, Bucyrus C
Page 139 and 140: Nombre: Dirección: Cargo: Correo e
Page 141 and 142: EXHIBIT D Form of Consignment Agree
Page 143 and 144: 15.02 Consignment and Sale. (a) Con
Page 145 and 146: 16.04 Taxes and Fees. Except as pro
Page 147 and 148: with Buyer to the extent such loss
Page 149 and 150: If to Seller: Attn: Gail Sexsmith F
Page 151 and 152: Date. IN WITNESS WHEREOF, the Parti
Page 153 and 154: EXHIBIT E Accounting Principles (Se
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vii. Seller will request mine site
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the parts consumed, the work-in-pro
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Work Order Created From SAP BAAN Pr
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EXHIBIT G Retained WIP and Retained
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SCHEDULES TO MASTER ASSET PURCHASE
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Schedule A Certain Bucyrus Entities
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Schedule B Products - 3 - Schedule
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I. Acquired Inventory Schedule 1.1(
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Seller/Seller Party Buyer/Buyer Par
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D. Other Seller/Seller Party Buyer/
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Initial Closing Territories Seller/
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Pl. Part Description TEREX DISTRIBU
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Pl. Part Description - 31 - Current
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I. Excluded Inventory Schedule 1.1(
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- 67 - Schedule 1.1(b) Excluded Ass
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I. Assumed Other Current Liabilitie
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Schedule 1.4 Preliminary Allocation
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Schedule 6.6(a) Employees [Redacted
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2. [Redacted reference to confident
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I. Standard Bucyrus Warranties See
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[Redacted confidential details rega
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- 81 - Schedule 6.8 Warranty Matter
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- 103 - Schedule 6.8 Warranty Matte
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1. 2. Customer Name Mine / Site Bas
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INTRODUCTION This Disclosure Schedu
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Schedule 3.3(a)(iii) No Conflicts 1
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16. Consigned Stock Agreement, date
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49. Lease, dated July 29, 2010, bet
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83. Contrato de Usuario de Zona Fra
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Antofagasta Region, authorizing Buc
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I. Section 3.6(a)(i) Schedule 3.6(a
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Blanca, S.A. 31. [Redacted referenc
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63. Corporacion Nacional del Cobre
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17. Corporacion Nacional Del Cobre
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I. Section 3.6(b)(i) Schedule 3.6(b
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10. Award Letter regarding Contract
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12. Highvale Mine Warehouse, 4425 S
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Canada Territories 1. None Initial
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[Redacted certain confidential tax
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Schedule 3.13 Title to Assets 1. Ba
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