MASTER ASSET PURCHASE AGREEMENT BY ... - Canadian Stocks

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Legal Requirements or stock exchange listing regulations to disclose any specific provisions of this Agreement or any ancillary document or instrument hereto or any of their respective exhibits or schedules, such Party will promptly notify Buyer (in the case of any Seller or Seller Party) or Seller (in the case of Buyer or any Buyer Party) so that the Parties may cooperate to obtain a protective order, confidential treatment or other appropriate remedy. In the event that such protective order or other remedy is not obtained, the disclosing Party will furnish only that portion of the Agreement, ancillary document or instrument or exhibit or schedule thereto which they are advised by written opinion of counsel that they are legally required to disclose and shall use their commercially reasonable efforts to obtain assurance that confidential treatment will be accorded. No Party will oppose any action taken by any other Party to obtain a protective order or other reliable assurance that such confidential treatment will be so accorded, and the Parties shall cooperate to obtain such order or other assurances. 10.8 Governing Law; Waiver of Jury Trial; Consent to Jurisdiction. (a) Unless the applicable Legal Requirements require otherwise, this Agreement and any claims arising out of or relating to this Agreement or the transactions contemplated by this Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law principles that would cause the application of the laws of any other jurisdiction. (b) Each Party to this Agreement irrevocably waives the right to a trial by jury in connection with any matter arising out of this Agreement. (c) The Parties to this Agreement submit to the exclusive jurisdiction of the federal courts of the United States located in New York, New York (or, only in the event that the federal courts lack subject matter jurisdiction over a dispute, the state courts of New York located in New York, New York) in respect of the interpretation and enforcement of the provisions of this Agreement and by this Agreement waive, and agree not to assert, any defense in any action for the interpretation or enforcement of this Agreement, that they are not subject thereto or that such action may not be brought or is not maintainable in such courts or that this Agreement may not be enforced in or by such courts or that their property is exempt or immune from execution, that the action is brought in an inconvenient forum, or that the venue of the action is improper. Service of process with respect thereto may be made upon the Seller Parties or the Buyer Parties by mailing a copy thereof by registered or certified mail, postage prepaid, to such Party at its address as provided in Section 10.2. Additionally, each Buyer Party shall, promptly following the date hereof, appoint and notify Seller of such Buyer Party’s agent for service of process in the State of New York for a period of five (5) years from and after the date hereof and agrees that service made on such agent shall have the same legal force and effect as if served upon such party personally within the State of New York. 10.9 Expenses. Subject to Section 6.2 and except as otherwise expressly stated in this Agreement, each Party will be solely responsible for and bear all of its own respective costs and expenses, including expenses of legal counsel, accountants, and other advisors, incurred at any time in connection with preliminary negotiations and discussions between the Parties, negotiating and preparing this Agreement and consummating the transactions contemplated by this Agreement. - 50 -
10.10 Bulk Sales Law. Buyer acknowledges that neither Seller nor the Seller Parties will comply with the provisions of any bulk transfer or bulk sale laws of any jurisdiction in connection with the transactions contemplated by this Agreement and Buyer expressly waives any requirement or compliance relating thereto. 10.11 Certain Matters of Construction. In addition to the definitions referred to in this Agreement: (a) Each of the Parties and their respective counsel have reviewed and negotiated this Agreement. Any rule of construction against the Party preparing this Agreement is hereby waived. (b) Section and subsection headings are not to be considered part of this Agreement, are included solely for convenience, are not intended to be full or accurate descriptions of the content of the Sections or subsections of this Agreement and shall not affect the construction hereof. (c) The words “hereof,” “herein,” “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or provision of this Agreement, and reference to a particular Section of this Agreement shall include all subsections thereof. (d) Definitions shall be equally applicable to both the singular and plural forms of the terms defined, and references to the masculine, feminine or neuter gender shall include each other gender. (e) The word “including” and “include” shall be deemed to be followed by the phrase “without limitation.” (f) Any reference to “$” or “dollars” shall mean United States dollars, and all payments required by any Party shall be made in United States dollars. (g) Any reference to any Legal Requirement shall mean such Legal Requirement as amended and in effect as of any time of determination. (h) In the event of any inconsistency between the terms and provisions of this Agreement and any translations of this Agreement into a language other than English that may be prepared, executed or delivered in connection with the transactions contemplated hereby, the terms and provisions of the English language version of this Agreement shall control, absent an express written agreement between the Parties to the contrary which acknowledges this Section 10.11(h). 10.12 Definitions. For purposes of this Agreement, the following terms, when used herein, shall have the following meanings: [Redacted reference to confidential customer contract] - 51 -
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MASTER ASSET PURCHASE AGREEMENT BY
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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 and 54: 9.7 Survival of Representations and
Page 55: 10.3 Entire Agreement; Amendment; W
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
Page 105 and 106: 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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MASTER ASSET PURCHASE AGREEMENT BY ... - Canadian Stocks

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