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Exhibit 2.1
THIRD
ADDENDUM
to the Share Purchase
Agreement
regarding the acquisition of
all shares in
DBT GmbH
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Third Addendum to Share Purchase Agreement |
THIRD ADDENDUM TO
SPA
Preamble
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1. |
RAG Coal International GmbH, formerly known as RAG Coal
International Aktiengesellschaft, Rellinghauser Straße 1
– 11, 45128 Essen, a stock corporation organized under the
laws of Germany, registered with the commercial register of the
municipal court of Essen under HRB 12210 (the “ Seller
”); and |
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2. |
DBT Holdings GmbH, Feldmühleplatz 1, 40545
Düsseldorf, a limited liability company organized under German
law, registered with the commercial register of the municipal court
of Düsseldorf under HRB 55323 (the “ Purchaser
”); and |
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3. |
Bucyrus International, Inc., 1100 Milwaukee Ave, South
Milwaukee, WI 53172-0500, USA, a corporation organized under
the laws of Delaware (“ Purchaser’s Guarantor
”) |
have entered into a Share
Purchase Agreement (the “ SPA ”), as amended on
February 22, 2007 (the “ First Addendum ”)
and on May 3/4, 2007 (the “ Second Addendum
”), according to which the Purchaser has purchased all shares
in DBT GmbH (as defined in the SPA) (the “ Company
”).
| B. |
The Closing occurred on May 4, 2007. |
| C. |
All terms in capital letters used in this document shall have
the same meaning as defined in the SPA, unless expressly otherwise
provided for herein. |
| D. |
Due to economic circumstances the Company intends to dismiss
certain employees. The Company is expected to undertake to pay
severance packages in an aggregate amount of between EUR 5,000,000
and EUR 6,000,000 of which Seller, in consideration of the parties
entering into this Third Addendum, shall pay to the Company EUR
3,000,000 (the “ Severance Obligation ”, and the
amount the “ Severance Amount ”). The Company
would also be entitled to extraordinarily terminate the Collective
Bargaining Agreement. The Purchaser, the Purchaser’s
Guarantor and the Company are willing to refrain from terminating
the Collective Bargaining Agreement until December 31, 2009 if
the Severance Obligation will be borne by the Seller. |
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Third Addendum to Share Purchase Agreement |
| E. |
The Purchaser and Purchaser’s Guarantor are willing to
give their consent to a sale and transfer effective on or after
February 15, 2008 of fifty percent (50%) of the
Consideration Shares to a third person nominated by the Seller in
consultation with the Purchaser’s Guarantor in order to
assure an orderly distribution to market. |
Now, therefore, the Parties agree on the
following third addendum (the “ Third Addendum
”) to the terms and conditions as set forth in the
SPA:
| 1. |
Obligations in Connection with Severance |
| 1.1 |
The Purchaser and Purchaser’s Guarantor shall procure
that the Company will not instruct Metall NRW, Verband der Metall-
und Elektroindustrie Nordrhein-Westfalen e.V., to terminate the
Collective Bargaining Agreement pursuant to Section 3 of the
supplement agreement to the Collective Bargaining Agreement (
Nachtragsvereinbarung zur Tarifvereinbarung vom
14. September 2006 ) dated December 14, 2006 prior to
December 31, 2009. |
| 1.2 |
The Seller shall pay to the Company in fulfillment of its
obligation pursuant to Section 10.6 (ii) of the SPA an
amount equal to the Severance Obligation. Such indemnification
shall fall under and shall be deducted from the maximum amount of
EUR 10,000,000 so that the maximum liability thereunder will be
reduced accordingly. |
| 2. |
Sale of Consideration Shares / Reimbursement of
Company |
| 2.1 |
The Seller shall be entitled to sell and transfer 50% of the
Consideration Shares in compliance with the Securities Act of 1933
to an individual or entity appointed by the Seller on or after
February 15, 2008 and reasonably acceptable to the
Purchaser’s Guarantor in order to assure an orderly
distribution to the market (the “Share Purchase Third
Party” |
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