EXHIBIT 10.3
SHAREHOLDERS' AGREEMENT
between
Bucyrus Holdings GmbH
and
HMS Hamburg Trust GmbH
Dated
December 16, 2006
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Table of Contents
Exhibits
...................................................................
3
Definitions
................................................................
4
Preamble
...................................................................
5
1.
Articles of Association
.............................................. 6
2.
Corporate Bodies of the Company
...................................... 6
3.
Shareholdings in the Company
......................................... 6
4.
Shareholders' Meeting
................................................ 7
5.
Management Board
..................................................... 8
6.
Disposition of Shares in the Company
................................. 9
7.
Redemption of Class A Share
.......................................... 10
8.
Financing of the Company; Pledges
.................................... 11
9. Right
of Inspection ..................................................
12
10. Profit and
Loss Transfer Agreements ..................................
12
11. Delivery of
Confirmations ............................................
12
12. Forward
Purchase .....................................................
13
13. Voting in
DBT, Merger ................................................
13
14. Term and
Termination .................................................
14
15.
Confidentiality and Public Announcements
............................. 14
16. Notices
..............................................................
15
17. Costs
................................................................
16
18.
Miscellaneous
........................................................
16
2
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Exhibits
Exhibit 1
Articles
of Association
Exhibit 12
Forward Purchase Agreement
Exhibit 13.1.4
R&D Agreement
3
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Definitions
Acquisition Financing
..................................................... 9
Agreement
.................................................................
6
Articles of Association
................................................... 6
Bucyrus
...................................................................
5
Business Days
.............................................................
15
Class A Share
.............................................................
6
Class B Share
.............................................................
6
Company
...................................................................
5
Compensation
..............................................................
10
DBT
.......................................................................
5
Forward Purchase Agreement
................................................ 12
Hamburg Trust
.............................................................
5
HT Interest
...............................................................
6
Management Board
..........................................................
6
Professor Dr. Schulte's Confirmation
...................................... 12
Purchaser's Confirmation
.................................................. 11
R&D Agreement
.............................................................
12
RCI
.......................................................................
5
Shareholder
...............................................................
5
Shareholders
..............................................................
5
Shareholders' Meeting
..................................................... 6
Social Charter
............................................................
7
SPA
.......................................................................
5
Transaction
...............................................................
5
Transferee
................................................................
9
4
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SHAREHOLDERS' AGREEMENT
By and between
1.
Bucyrus Holdings
GmbH, c/o Rechtsanwalte Freshfields Bruckhaus
Deringer, Feldmuhleplatz 1, 40545 Dusseldorf,
- "Bucyrus" -
2.
HMS Hamburg Trust GmbH (currently still operating under the name
of
,,Ad acta"
676.
Vermogensverwaltungsgesellschaft mbH),
Lornsenstra(beta)e 6, 22767 Hamburg,
- "Hamburg Trust" -
- Bucyrus and Hamburg Trust hereinafter individually, a
"Shareholder"
and collectively, the "Shareholders" -
Preamble
A.
WHEREAS, the
Shareholders
established a limited
liability company
(Gesellschaft mit
beschrankter
Haftung) pursuant to German law,
registered with the commercial register (Handelsregister)
maintained
at
the local court (Amtsgericht) of Dusseldorf, Germany, under the
name DBT Holdings GmbH (the "Company") under registration number
HRB
55323. The Shareholders are the sole shareholders of the Company
and
participate in the
share capital
(Stammkapital) of the
Company as
follows:
--------------------------------------------------------------------
Nominal amount of share in EUR
Share in %
--------------------------------------------------------------------
Bucyrus
24,950
49.9
--------------------------------------------------------------------
Hamburg Trust
25,050
50.1
--------------------------------------------------------------------
TOTAL
50,000
100
--------------------------------------------------------------------
B.
WHEREAS, by
virtue of a share purchase agreement (the "SPA")
between, inter
alia, the Company and RAG Coal International
Aktiengesellschaft
("RCI") the Company
will acquire all
shares in
DBT GmbH, a
corporation
organized under the laws of Germany as
limited liability
company (GmbH) and registered with the commercial
register maintained at
the local court of Dortmund under HRB 17120
("DBT") from RCI (the "Transaction");
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C.
WHEREAS, in
order to regulate their internal relationship as
shareholders of the Company, the Shareholders intend to enter into
this
shareholders'
agreement
including its
exhibits
(the
"Agreement").
Now, therefore, the Parties agree as follows:
1.
Articles of Association
If any provisions of
the Articles of
Association (Satzung)
of the
Company (the "Articles of Association") which are attached hereto
as
Exhibit 1 at any time conflict with any provisions of this
Agreement, the provisions of this Agreement shall, as far as
legally
permitted, prevail and
the Shareholders
shall exercise all
rights
conferred upon them to
procure the
amendment of the Articles of
Association to the
extent necessary
to permit the Company
and its
affairs to be administered as provided for in this Agreement.
2.
Corporate Bodies of the Company
2.1
Corporate Bodies.
The Company shall have
the following
corporate
bodies:
2.1.1 the
"Shareholders' Meeting" (Gesellschafterversammlung); and
2.1.2 the
"Management Board" (Geschaftsfuhrung).
2.2
Employee
Co-determination. It
is the Shareholders'
understanding
that the Company will
not be subject to
employee
co-determination
(Arbeitnehmermitbestimmung).
3.
Shareholdings in the Company
3.1
Shareholdings. The only shareholders in the Company shall be
Bucyrus
and Hamburg Trust.
3.2
Categories of Shares.
The Articles of Association shall provide for
two categories of shares in the Company: The share to be subscribed
by Hamburg Trust (the "HT Interest") shall be qualified as A-class
share (the "Class A Share"), the share to be subscribed by Bucyrus
shall be qualified as B-class share (the "Class B Share").
6
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3.3
Class A Share. The
Class A Share shall
confer upon its holder no
voting rights and
shall not entitle its holder to dividend rights.
The participation of the Class A Share in liquidation proceeds
shall
be limited to a maximum amount of EUR 8,000,000. The Class A Share
shall confer upon its holder the consent rights described in
Section
4.3 and 8.3 and such
other rights
attached to such share under
applicable mandatory law and the Articles of Association.
3.4
Class B Share. The
Class B Share shall
confer upon its holder such
rights as if it were
the owner of shares
conferring
100 % of the
voting rights subject
only to the
limitations resulting
from the
stipulations contained
in Section 4.3 and applicable mandatory
statutory laws. The
holder of the Class B Share shall have the sole
right to resolve or to have resolved any distribution of dividends
of DBT or the Company.
4.
Shareholders' Meeting
4.1
Matters for Shareholders' Meeting. Except as otherwise provided
for
in this Agreement or by applicable law, the Shareholders' Meeting
shall determine all
matters concerning the
Company, including
but
not limited to the
matters listed in ss.
46 of the German
Limited
Liability Company Act
(Gesetz betreffend
die Gesellschaften mit
beschrankter Haftung).
In particular, but not limited to, the
Shareholders' Meeting shall resolve upon the following matters:
4.1.1
amendments to the Articles of Association;
4.1.2
establishment of
and any amendments to the Rules of
Procedure for the Management Board (as defined below);
4.1.3
consent to the annual
financial statements
(Feststellung
des Jahresabschlusses)
and the appropriation of the profit
(Gewinnverwendung) of the Company;
4.1.4
consent to the annual business plan (Geschaftsplan) of the
Company including an operating budget;
4.1.5
dissolution (Auflosung) of the Company;
4.1.6
continuation of the dissolved Company;
4.1.7
consent to
the disposition of shares in the Company; and
4.1.8 acts
under the
German Reorganization
Act
(Umwandlungsgesetz).
4.2
Voting Right. Subject to Sections 3.3 and 4.3 the Shareholders
agree
to exercise their influence on the Company exclusively through the
Shareholders' Meeting.
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4.3
Consent Rights
for Class A Share.
Bucyrus may not exercise its
voting right and adopt
resolutions
without the prior consent of
Hamburg Trust with respect to the following matters:
4.3.1 any
action by the Company
or DBT that
would result in a
breach of or deviation
from the Social Charter (as set out
in Section 15.2 of the SPA), (the "Social Charter") as in
force from time to time. For the avoidance of doubt,
this
Section 4.3.1
shall include, without limitation, any
shareholders' resolutions consenting to acts to be taken by
the managing directors of the Company which would result in
a breach of or deviation from the Social Charter;
4.3.2 any
amendments
to the Articles of Association of the
Company or DBT to the extent such amendments relate to the
Social Charter; and
4.3.3 any
amendments
to the Articles of Association of the
Company to the extent that such amendments adversely affect
the rights of Hamburg Trust as holder of the Class A Share.
4.4
Majority Requirements.
Unless otherwise
provided for by
mandatory
law the Shareholders'
Meeting shall take all decisions with the
majority of the votes cast.
4.5
Procedures. To
the extent permitted by law, Shareholders'
resolutions may
be passed without convening and holding a
Shareholders' Meeting in writing, by facsimile or by
telecommunication
(e.g. by conference call or video conference) if
Bucyrus gives its
consent and approval
to such procedure
and the
information and participation rights of Hamburg Trust are met.
4.6
Rules and Regulations. Bucyrus as Shareholder with the prior
written
consent by Hamburg
Trust may establish
such rules and
regulations
for the conduct of the Shareholders' Meetings, as it deems
necessary
or advisable, except insofar as any such rules and regulations
would
be inconsistent with
the provisions of applicable law, the Articles
of Association or this Agreement.
4.7
Change of Seat. It is
currently intended that the Shareholders'
Meeting will
resolve in due course on a change of the
Company's
registered seat from Dusseldorf to Essen.
5.
Management Board
5.1
Managing Directors.
The Management Board of the Company shall
consist of [two] managing directors (Geschaftsfuhrer) who in each
case shall have the power to represent the Company individually and
who shall be exempted from the limitations of ss. 181 of the
German
Civil Code (Burgerliches Gesetzbuch) except as resolved otherwise
by
the Shareholders'
Meeting. The managing directors of the Company
shall be
8
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appointed and their
appointment
shall be revoked
exclusively
by
Bucyrus. For the
avoidance of doubt,
Hamburg Trust shall
not have
voting rights with regard to the appointment or the removal of any
managing director and to their power to represent the Company.
5.2
Scope of Responsibilities. The managing directors shall
conduct the
day-to-day operations
of the Company
and, notwithstanding their
legally unlimited
authority to bind the Company towards third
parties, shall
observe the general and individual instructions
issued by the
Shareholders' Meeting.
6.
Disposition of Shares in the Company
6.1
Transfer Restrictions.
Prior to the closing of the Forward Purchase
Agreement (as defined below), the Shareholders mutually agree that
neither Bucyrus
nor Hamburg Trust shall transfer (except as
otherwise provided
explicitly in this Section 6), the whole or part
of its respective
shareholding in the Company (or DBT after merger)
to any third party.
Bucyrus is entitled
to transfer the Class B
Share in full or in part to any affiliate of Bucyrus within the
meaning of Section 15 of the German Stock Corporation Act (AktG) if
such affiliate
undertakes vis-a-vis Hamburg Trust to adhere to this
Agreement, assume and
comply with any
oblig
