WAIVER, CONSENT, AND TERMINATION AGREEMENT
ThisWaiver, Consent, and Termination Agreement(this “Agreement”), dated January 13, 2008, is entered into by and among A.S.V., Inc., a Minnesota corporation (“ASV”), Loegering Mfg., Inc. a North Dakota corporation (“LMI”), and Caterpillar Inc., a Delaware corporation (“Caterpillar”).
WHEREAS, simultaneous with the execution and delivery of this Agreement, ASV is entering into an Agreement and Plan of Merger (the “Merger Agreement”) with Terex Corporation (“Parent”) and Terex Minnesota, Inc. (“Sub”), pursuant to which, among other things, Sub will offer to purchase all of the outstanding Shares (the “Offer”) and Sub would merge with and into ASV (the “Merger”);
WHEREAS, simultaneous with the execution and delivery of this Agreement, Caterpillar is entering into a Tender, Voting, and Option Agreement (the “Shareholder Agreement”) with Parent and Sub pursuant to which, among other things, Caterpillar agrees to (i) support the Merger and the transactions contemplated by the Merger Agreement, (ii) tender the shares of ASV common stock owned by Caterpillar (the “Cat Shares”) to Sub in connection with the Offer; and (iii) grant Parent an option to purchase a portion of the Cat Shares;
WHEREAS, ASV and Caterpillar are parties to that certain Registration Rights Agreement, dated November 1, 2005 (the “Registration Rights Agreement”), a copy of which is attached hereto as Exhibit A;
WHEREAS, ASV and Caterpillar are parties to that certain Purchase Agreement, dated November 1, 2005 (the “ASV Purchase Agreement”), a copy of which is attached hereto as Exhibit B;
WHEREAS, LMI and Caterpillar are parties to that certain Purchase Agreement, dated January 1, 2007 (the “LMI Purchase Agreement”), a copy of which is attached hereto as Exhibit C;
WHEREAS,LMI and Caterpillar are parties to that certain Agreement, dated October 1, 2006, as amended by the First Amendment thereto, dated April 1, 2007 (the “Endorsement Agreement” and together with the ASV Purchase Agreement and the LMI Purchase Agreement, the “Continuing Agreements”), a copy of which is attached hereto as Exhibit D;
WHEREAS, ASV, LMI and Caterpillar desire to waive certain rights, grant certain consents, terminate certain agreements, and otherwise set forth their agreements with respect to the Registration Rights Agreement and the Continuing Agreements in connection with the Merger and the transactions contemplated by the Merger Agreement.
NOW, THEREFORE, in consideration of the promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
