MASTER ASSET PURCHASE AGREEMENT BY ... - Canadian Stocks

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Business Day after being sent to such delivery service or (d) if sent via facsimile, electronic mail or similar electronic transmission, as of the date upon which the sender receives confirmation of the receipt of such electronic transmission, to such Party at its address set forth below (or such other address as it may from time to time designate in writing to the other Party): (a) If to Seller: Caterpillar Global Mining LLC 6744 S. Howell Avenue PO Box 267 Oak Creek, Wisconsin 53154 U.S.A. Attn: Julie Lagacy Facsimile: +1 (414) 301-8423 E-mail: Lagacy_Julie_A@cat.com With a copy (which shall not constitute notice) to: Caterpillar Inc. 100 NE Adams Street Peoria, Illinois 61629 U.S.A. Attn: Deputy General Counsel, Commercial Section Facsimile: +1 (309) 675-1795 E-mail: Sposato_Michael_G@cat.com And Mayer Brown LLP 71 S. Wacker Dr. Chicago, IL 60606 U.S.A Attention: John Sagan Andrew Noreuil Facsimile: +1 (312) 701-7711 (b) If to Buyer: Finning International Inc. 10th Floor, 666 Burrard Street Vancouver, BC V6C 2X8 Attn: David Smith Facsimile: +1 (604) 691-6254 E-mail: david.s.smith@finning.com With a copy (which shall not constitute notice) to: Finning International Inc. 10 th Floor, 666 Burrard Street Vancouver, BC V6C 2X8 Attn: Gail Sexsmith Facsimile: +1 (604) 691-6440 E-mail: Gail.Sexsmith@finning.com - 48 -
10.3 Entire Agreement; Amendment; Waiver. This Agreement (including the Exhibits, Schedules and Disclosure Schedules hereto and the Canada Purchase Agreement) constitutes the entire agreement between the Parties as to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, by or on behalf of the Parties. This Agreement may be altered, amended or modified in whole or in part at any time only by a writing signed by all the Parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver. 10.4 Severability. In the event that any provision hereof is held to be illegal, invalid or unenforceable in any respect under any applicable Legal Requirements, such provision shall (to the extent permitted by law) be construed by modifying or limiting it so as to be legal, valid and enforceable to the maximum extent compatible with, and possible under, applicable Legal Requirements. The provisions hereof are severable, and in the event any provision hereof should be held illegal, invalid or unenforceable in any respect, it shall not invalidate, render unenforceable or otherwise affect any other provision hereof. 10.5 Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or electronic mail will be effective as delivery of a manually executed counterpart of this Agreement. 10.6 Third Party Beneficiaries. Nothing in this Agreement is intended or shall be construed to entitle any Person, other than the Parties and their respective successors and permitted transferees and assigns, to any claim, cause of action, remedy or right of any kind; provided, that the Buyer Indemnified Parties and the Seller Indemnified Parties are intended third-party beneficiaries of Article 9. 10.7 Public Announcements; Confidentiality. Without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed, no Party may make or cause to be made any public statement, press release or other public disclosure to any Person with respect to this Agreement or the transactions contemplated by this Agreement (including announcing the signing of this Agreement or the consummation of the transactions contemplated by this Agreement); provided, however, that each Party may disclose the proposed acquisition to its partners, managers, officers, legal counsel, accountants, employees, and advisors to the extent that such Party reasonably determines such disclosure is necessary or advisable, or to the extent necessary to obtain the Consent of Governmental Authorities or third parties to the transactions contemplated by this Agreement. No Party may disclose the terms and specific provisions of this Agreement, except (a) to its Representatives with a need to know such contents, (b) to the extent that such Party believes in good faith that such disclosure is required to be made by applicable Legal Requirements or by applicable stock exchange listing regulations after consultation with legal counsel and (c) for those contents of this Agreement that become generally available to the public other than as a result of a disclosure by such Party or its Representatives in violation of this Section 10.7. Notwithstanding the foregoing, provisions of this Section 10.7, if any Party is or becomes legally compelled or otherwise believes in good faith that it is required by applicable - 49 -
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MASTER ASSET PURCHASE AGREEMENT BY
Page 3 and 4: TABLE OF CONTENTS (continued) - ii
Page 5 and 6: TABLE OF CONTENTS (continued) - iv
Page 7 and 8: MASTER ASSET PURCHASE AGREEMENT THI
Page 9 and 10: deliver to Seller a written stateme
Page 11 and 12: into account in connection with the
Page 13 and 14: or the Canada Purchase Agreement or
Page 15 and 16: Parties may otherwise agree (the
Page 17 and 18: event beyond the Initial Closing Ou
Page 19 and 20: (iii) except as set forth in Sectio
Page 21 and 22: (iv) any Assumed Contract granting
Page 23 and 24: (v) all material policies and pract
Page 25 and 26: 3.14 Compliance with Laws. Except a
Page 27 and 28: (b) Except for the Mandatory Antitr
Page 29 and 30: 5.2 Transfer Taxes. Except as provi
Page 31 and 32: delayed, (1) sell, lease, subject t
Page 33 and 34: other and, upon request, to any Gov
Page 35 and 36: (b) From the date of this Agreement
Page 37 and 38: that (i) Seller and the Seller Part
Page 39 and 40: Disclosure Schedules specifying suc
Page 41 and 42: Initial Closing and (y) with a doub
Page 43 and 44: efurbishment, restoration or repair
Page 45 and 46: 7.1 Representations; Warranties; Co
Page 47 and 48: (d) any Excluded Assets; (e) any ob
Page 49 and 50: to (x) $46,500,000 minus (y) the ag
Page 51 and 52: event or circumstance that gave ris
Page 53: 9.7 Survival of Representations and
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 and 104: EXHIBIT C-2 Form of Initial Closing
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immediately prior to the Effective
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(c) Buyer acknowledges that it will
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appointment of a trustee or receive
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11.04 Duty to Mitigate. Each Party
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ARTICLE XIII INTELLECTUAL PROPERTY
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(b) If to Buyer: Finning Internatio
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Date. IN WITNESS WHEREOF, the Parti
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Schedule B Information Systems Serv
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CONTRATO DE DEPOSITO POR CUENTA AJE
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El cliente podrá exigir la devoluc
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EXHIBIT C-4 Form of Initial Closing
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3. Bucyrus Chile declara que cumple
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dependencias de Finning Chile ubica
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a) Listado de los trabajadores de l
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que deberá ser pagada conforme a l
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De igual manera, , Bucyrus Chile se
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mediando tal aprobación, Bucyrus C
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Nombre: Dirección: Cargo: Correo e
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EXHIBIT D Form of Consignment Agree
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15.02 Consignment and Sale. (a) Con
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16.04 Taxes and Fees. Except as pro
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with Buyer to the extent such loss
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If to Seller: Attn: Gail Sexsmith F
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Date. IN WITNESS WHEREOF, the Parti
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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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