EXHIBIT 10.18
FORM 10-K
YEAR ENDED DECEMBER 31, 1999
ANNEX B
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement"), dated as of June 23, 1999,
is entered into by Michael W. Salsieder ("Pledgor"), in favor of Bucyrus
International, Inc., a Delaware corporation (together with its successors
and assigns, "Pledgee").
RECITALS
WHEREAS, (i) Pledgor and Pledgee have entered into the
Employment Agreement, dated as of June 23, 1999 (the "Employment
Agreement"), providing for, among other things, the terms of Pledgor's
employment with Pledgee and the sale of the Purchased Shares by the Pledgee
to the Pledgor, and (ii) in connection with the sale and purchase of the
Purchased Shares, Pledgor has executed a promissory note, dated as of the
date hereof (the "Note"), in favor of Pledgee;
WHEREAS, it is a condition precedent to the sale of the
Purchased Shares under the Employment Agreement that Pledgor shall have
entered into this Agreement and granted the pledges provided herein;
WHEREAS, Pledgor will derive substantial benefit from the loan
evidenced by the Note and wishes to grant a security interest in favor of
Pledgee as set forth herein; and
WHEREAS, Pledgor is the legal and beneficial owner of the shares
of capital stock listed opposite the name of Pledgor on Schedule I hereto
(collectively, the "Pledged Shares");
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, Pledgor hereby agrees with Pledgee as follows:
SECTION 1. Certain Defined Terms. Capitalized terms used
herein and not otherwise defined shall have the meanings assigned in the
Employment Agreement. The following terms as used herein shall have the
following meanings:
"Agreement" means this Pledge Agreement, as amended, restated
or supplemented or otherwise modified from time to time in accordance with
its terms.
"Employment Agreement" shall have the meaning set forth in the
recitals to this Agreement.
"Event of Default" shall have the meaning specified in Section
8 hereof.
"Indemnitee" shall have the meaning set forth in Section 15
hereof.
"Note" shall have the meaning set forth in the recitals to this
Agreement.
"Pledge Amendment" shall have the meaning set forth in Section
7(b) hereof.
"Pledged Collateral" means:
(a) the Pledged Shares and the certificates representing the
Pledged Shares and any interest of Pledgor in the entries on the books of
any financial intermediary pertaining to the Pledged Shares, and, subject
to Section 8, all dividends, cash, warrants, rights, instruments and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Pledged
Shares;
(b) all additional shares of, and all securities convertible
into and warrants, options and other rights to purchase, stock (whether
certificated or uncertificated and now existing or hereafter created) of any
Pledgee of the Pledged Shares from time to time acquired by Pledgor in any
manner (which shares shall be deemed to be part of the Pledged Shares), the
certificates or other instruments representing such additional shares,
securities, warrants, options or other rights and any interest of Pledgor
in the entries on the books of any financial intermediary pertaining to such
additional shares, and, subject to Section 8, all dividends, cash, warrants,
rights, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange
for any or all of such additional shares, securities, warrants, options or
other rights; and
(c) to the extent not covered above, all Proceeds of the
Pledged Collateral described in clauses (a) and (b).
"Pledged Shares" shall have the meaning set forth in the
recitals to this Agreement.
"Pledgee" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"Pledgor" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"Proceeds" shall have the meaning assigned that term under the
Uniform Commercial Code (the "Code") as in effect in any relevant
jurisdiction or under relevant law and, in any event, shall include, but not
be limited to, any and all (i) proceeds of any indemnity or guaranty payable
to Pledgor from time to time with respect to any of the Pledged Collateral,
and (ii) any other amounts from time to time paid or payable under or in
connection with any of the Pledged Collateral or otherwise receivable or
received when the Pledged Collateral is or proceeds thereof are sold,
collected, exchanged or otherwise disposed of, whether such disposition is
voluntary or involuntary.
"Secured Obligations" shall have the meaning set forth in
Section 3 hereof.
"Securities Act" means the Securities Act of 1933, as from time
to time amended.
"Underlying Debt" shall have the meaning set forth in Section
3 hereof.
SECTION 2. Pledge of Security. Pledgor hereby pledges to
Pledgee and grants to Pledgee a first priority security interest in all of
the Pledged Collateral.
SECTION 3. Security for Obligations. This Agreement secures,
and the Pledged Collateral is collateral security for, (i) the prompt
payment and performance in full when due, whether at stated maturity, by
acceleration or otherwise (including the payment of amounts that would
become due but for the operation of the automatic stay under Section 362(a)
of the Bankruptcy Code and the operation of Sections 502(b) and 506(b) of
the Bankruptcy Code or any successor provision thereto, and all interest
accruing on the payment obligations set forth in the Note after the filing
of a petition by or against the Pledgor under the Bankruptcy Code, in
accordance with the Note whether or not the claim for such interest is
allowed as a claim after such filing in any proceeding under the Bankruptcy
Code), of all obligations of Pledgor under the Note, whether now existing
or hereafter arising, voluntary or involuntary, whether or not jointly owed
with others, direct or indirect, absolute or contingent, liquidated or
unliquidated, and whether or not from time to time decreased or extinguished
and later increased, created or incurred and all or any portion of such
obligations that are paid to the extent all or any part of such payment is
avoided or recovered directly or indirectly from Pledgee as a preference,
fraudulent transfer or otherwise (all such obligations being the "Underlying
Debt"), and (ii) all obligations or liabilities of every nature of Pledgor
now or hereafter existing under this Agreement (all such obligations of
Pledgor, together with the Underlying Debt, being the "Secured
Obligations").
SECTION 4. Delivery of Pledged Collateral. All certificates
or instruments representing or evidencing the Pledged Collateral shall be
delivered to and held by or on behalf of Pledgee pursuant hereto and shall
be in suitable form for transfer by delivery, or, as applicable, shall be
accompanied by Pledgor's endorsement, where necessary, of duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to Pledgee. If an Event of Default shall have occurred and be
continuing, Pledgee shall have the right, at any time in its discretion and
without notice to Pledgor, to transfer to or to register in the name of
Pledgee or any of its nominees any or all of the Pledged Collateral, subject
only to the revocable rights specified in Section 8(a) hereof. In addition,
if an Event of Default shall have occurred and be continuing, Pledgee shall
have the right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or
instruments of smaller or larger denominations.
SECTION 5. Representations and Warranties. Pledgor hereby
represents and warrants to Pledgee as follows:
(a) Pledged Collateral. There are no outstanding options,
warrants, rights to subscribe, stock purchase rights or other agreements
granted or entered into by Pledgor outstanding with respect to, or property
that is now or hereafter convertible into, or that requires the issuance or
sale of, any Pledged Shares.
(b) Ownership of Pledged Collateral. Pledgor is the sole
legal, record and beneficial owner of the Pledged Collateral pledged by
Pledgor free and clear of any lien except for the security interest created
by this Agreement.
(c) Consents. No consent of any other party (including,
without limitation, stockholders or creditors of Pledgor or any Person under
any contractual obligation of Pledgor) and no consent, authorization,
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required either (i) for the
pledge by Pledgor of the Pledged Collateral pursuant to this Agreement and
the grant by Pledgor of the security interest granted hereby or for the
execution, delivery or performance of this Agreement by Pledgor, or (ii) for
the exercise by Pledgee of the voting or other rights provided for in this
Agreement or the remedies in respect of the Pledged Collateral pursuant to
this Agreement (except (A) those which have been obtained or made, and
(B) as may be required in connection with a disposition of Pledged
Collateral by laws affecting the offering and sale of securities generally
or the disposition of collateral generally).
(d) Neither the execution and delivery of this Agreement by
the Pledgor nor the consummation of the transactions herein contemplated nor
the fulfillment of the terms hereof (i) violate the terms of any agreement,
indenture, mortgage, deed of trust, equipment lease, instrument or other
document to which the Pledgor is a party or by which it may be bound or to
which any of its properties or assets may be subject, which violation or
conflict would have a material adverse effect on the financial condition of
the Pledgor or on the value of the Pledged Collateral, or a material adverse
effect on the security interests hereunder, (ii) conflict with any law,
order, rule or regulation applicable to the Pledgor, of any court or any
government, regulatory body or administrative agency or other governmental
body having jurisdiction over the Pledgor or its properties, or (iii) result
in or require the creation or imposition of any lien (other than the lien
contemplated hereby in favor of Pledgee), upon or with respect to any of the
property now owned or hereafter acquired by the Pledgor or the Pledgee,
which violation or conflict would have a material adverse effect on the
financial condition, business, assets or liabilities of the Pledgor and the
Pledgee taken as a whole, or on the value of the Pledged Collateral or a
material adverse effect on the security interests hereunder.
(e) Perfection. The pledge and delivery to Pledgee of the
Pledged Collateral pursuant to this Agreement creates a valid and perfected
first priority security interest of Pledgee in the Pledged Collateral of
Pledgor, securing the payment and performance of the Secured Obligations,
subject to no liens, and all actions necessary or desirable to perfect and
protect such security interest have been duly taken.
SECTION 6. Certain Covenants. Pledgor hereby covenants that,
until the Secured Obligations have been indefeasibly paid in full and the
Note has been extinguished and canceled, Pledgor will:
(a) not (i) sell, assign (by operation of law or otherwise)
or otherwise dispose of, or grant any option with respect to, any of the
Pledged Collateral pledged hereunder by Pledgor, or (ii) create or permit
to exist any lien upon or with respect to any of the Pledged Collateral,
except for the security interest under this Agreement;
(b) (i) at any time and from time to time, upon request of the
Pledgee, to give, execute, file and/or record any notice, financing
statement, continuation statement, instrument, document or agreement that
the Pledgee shall consider reasonably necessary or desirable to create,
preserve, continue, perfect or validate any security interest granted
hereunder or which the Pledgee may consider reasonably necessary or
desirable to exercise or enforce its rights hereunder with respect to such
security interest, (ii) to give the Pledgee notice of any litigation filed
or claim asserted against the Pledgor relating to or potentially affecting
the Pledged Collateral, (iii) if requested by the Pledgee, to receive and
collect the Proceeds, in trust and as the property of the Pledgee, and to
immediately endorse as appropriate and deliver such Proceeds to the Pledgee
when requested by the Pledgee in the exact form in which they are received,
(iv) not to commingle the Proceeds or collections thereunder with other
property, (v) to keep complete and accurate records regarding all of the
Proceeds, (vi) to provide any service and do other acts or things necessary
to keep the Pledged Collateral and the Proceeds free and clear of all
defenses, rights of offset and counterclaim, and (vii) to pledge hereunder,
immediately upon its acquisition (directly or indirectly) thereof, any and
all additional shares of Common Stock of Pledgee, or any securities
convertible into or exercisable for shares of Common Stock of Pledgee.
(c) (i) pay promptly the obligations set forth under the Note
when due, (ii) indemnify the Pledgee against all loss, claims, demands and
liabilities of every kind arising from the Pledged Collateral and the
transactions and other agreements and undertakings contemplated hereby, and
(iii) pay all expenses, including reasonable attorneys' fees, incurred by
the Pledgee in the preservation, realization, enforcement and exercise of
its rights, powers and remedies hereunder.
SECTION 7. Further Assurances; Pledge Amendments.
(a) Pledgor agrees that at any time and from time to time, at
the expense of Pledgor, Pledgor shall promptly execute and deliver all
further instruments and documents, and take all further actions, that may
be necessary or appropriate, or that Pledgee may reasonably request, in
order to perfect and protect any security interest granted or purported to
be granted hereby or to enable Pledgee to exercise and enforce its rights
and remedies hereunder with respect to any Pledged Collateral.
(b) Pledgor further agrees that it will, upon obtaining any
additional shares of stock or other securities required to be pledged
hereunder, promptly (and in any event within ten (10) days) deliver to
Pledgee a Pledge Amendment, duly executed by Pledgor, in substantially the
form of Schedule II hereto (a "Pledge Amendment"), in respect of the
additional shares of stock or other securities to be pledged pursuant to
this Agreement. Pledgor hereby authorizes Pledgee to attach each Pledge
Amendment to this Agreement and agrees that all Pledged Shares listed on any
Pledge Amendment delivered to Pledgee shall for all purposes hereunder be
considered Pledged Collateral.
SECTION 8. Voting Rights; Dividends; Etc.
(a) So long as no Event of Default (as defined below) shall
have occurred and be continuing:
(i) Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Pledged
Collateral or any part thereof for any purpose not in violation of the
terms of the Employment Agreement or the Note. It is understood,
however, that neither (A) the voting by Pledgor of any Pledged Shares
for or Pledgor's consent to the election of directors at a regularly
scheduled annual or other meeting of stockholders or with respect to
incidental matters at any such meeting, nor (B) Pledgor's consent to
or approval of any action otherwise permitted under the terms of the
Employment Agreement or the Note shall be deemed inconsistent with the
terms of any of such documents within the meaning of this Section
8(a)(i), and no notice of any such voting or consent need be given to
Pledgee.
(ii) Pledgor shall be entitled to receive and retain, and
to utilize free and clear of the lien of this Agreement, any and all
dividends and other distributions paid in respect of the Pledged
Collateral; provided, however, that any and all dividends, interest
and other distributions paid or payable in additional equity
securities, or warrants, options or similar rights to acquire
additional equity securities shall be, and shall forthwith be
delivered to Pledgee to hold as, Pledged Collateral and shall, if
received by Pledgor, be received in trust for the benefit of Pledgee,
be segregated from the other property or funds of Pledgor and be
forthwith delivered to Pledgee as Pledged Collateral in the same form
as so received (with all necessary endorsements).
(iii) Pledgee shall promptly execute and deliver (or cause
to be executed and delivered) to Pledgor all such proxies, dividend
payment orders and other instruments as Pledgor may from time to time
reasonably request for the purpose of enabling Pledgor to exercise the
voting and other consensual rights which it is entitled to exercise
pursuant to paragraph (i) above and to receive the dividends,
principal or interest payments which it is authorized to receive and
retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event
of Default (as defined below):
(i) Upon written notice from Pledgee to Pledgor, all
rights of Pledgor to exercise the voting and other consensual rights
which it would otherwise be entitled to exercise pursuant to Section
8(a)(i) shall cease, and all such rights shall thereupon become vested
in Pledgee who shall thereupon have the right to exercise such voting
and other consensual rights.
(ii) All rights of Pledgor to receive the dividends,
interest and other payments which it would otherwise be authorized to
receive and retain pursuant to Section 8(a)(ii) shall cease, and all
such rights shall thereupon become vested in Pledgee who shall
thereupon have the right to receive and hold as Pledged Collateral
such dividends, interest and other payments which shall, upon written
notice from Pledgee, be paid to Pledgee.
(iii) All dividends, interest and other payments which are
received by Pledgor contrary to the provisions of paragraph (ii) of
this Section 8(b) shall be received in trust for the benefit of
Pledgee, shall be segregated from other funds of Pledgor and shall
forthwith be paid over to Pledgee as Pledged Collateral in the same
form as so received (with any necessary endorsements).
(c) In order to permit Pledgee to exercise the voting and
other consensual rights which it may be entitled to exercise pursuant to
Section 8(b)(i) hereof and to receive all dividends and other distributions
which it may be entitled to receive under Section 8(a)(ii) hereof or Section
8(b)(ii) hereof, Pledgor shall promptly execute and deliver (or cause to be
executed and delivered) to Pledgee all such proxies, dividend payment orders
and other instruments as Pledgee may from time to time reasonably request.
(d) Each of the following shall constitute an event of default
(an "Event of Default") hereunder: (i) Pledgor's failure to pay, within
fifteen (15) days after the date when such payment is due, any payment of
principal or interest on the Note, (ii) Pledgor's failure to observe or
perform, within fifteen (15) days after receipt of notice of default from
Pledgee, any covenant or agreement contained in this Agreement or in the
Note, (iii) if any representation, warranty, certification or statement made
by the Pledgor in this Agreement or in any certificate or other document
delivered pursuant to the Note or this Agreement shall prove to have been
incorrect in any material respect when made or deemed made, (iv) the
appointment of a receiver or a trustee of all or part of the Pledgor's
property, (v) an assignment for the benefit of the Pledgor's creditors, (vi)
the commencement or filing of any voluntary proceeding or petition by the
Pledgor under any bankruptcy or insolvency law or any law relating to the
relief of debtors or readjustment of indebtedness, (vii) the commencement
or filing of any involuntary proceeding or petition against the Pledgor
under any bankruptcy or insolvency law or any law relating to the relief of
debtors or readjustment of indebtedness, which proceeding or petition has
not been dismissed within sixty (60) days after the commencement or filing
thereof, (viii) the appointment of a receiver, custodian, trustee or
liquidator for any part of the assets or property of the Pledgor, (ix) the
failure of the Pledgor generally to pay his debts as they become due, and
(x) the failure of the Pledgee to have a first priority security interest
in the Pledged Collateral.
SECTION 9. Remedies upon Default. If any Event of Default
shall have occurred and be continuing:
(a) Pledgee may exercise in respect of the Pledged Collateral,
in addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on default
under the Uniform Commercial Code as in effect in the State of Wisconsin (or
any other state with jurisdiction over the Pledged Collateral) at that time,
and Pledgee may also in its sole discretion, without notice (except as
specified below), sell the Pledged Collateral or any part thereof in one or
more parcels at public or private sale, at any exchange, broker's board or
at any of Pledgee's offices or elsewhere, for cash, on credit or for future
delivery, at such time or times and at such price or prices and upon such
other terms as are commercially reasonable, irrespective of the impact of
any such sales on the market price of the Pledged Collateral. Pledgee may
be the purchaser of any or all of the Pledged Collateral at any such sale
and shall be entitled, for the purpose of bidding and making settlement or
payment of the purchase price for all or any portion of the Pledged
Collateral sold at any such public sale, to use and apply any of the Secured
Obligations as a credit on account of the purchase price of any Pledged
Collateral payable by Pledgee at such sale. Each purchaser at any such sale
shall hold the property sold absolutely free from any claim or right on the
part of Pledgor, and Pledgor hereby waives (to the extent permitted by law)
all rights of redemption, stay and/or appraisal which it now has or may at
any time in the future have under any rule of law or statute now existing
or hereafter enacted. Pledgor agrees that, to the extent notice of sale
shall be required by law, at least ten (10) days' notice to Pledgor of the
time and place of any public sale or the time after which any private sale
is to be made shall constitute reasonable notification. Pledgee shall not
be obligated to make any sale of Pledged Collateral regardless of notice of
sale having been given. Pledgee may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to which it
was so adjourned. Pledgor hereby waives any claims against Pledgee arising
by reason of the fact that the price at which any Pledged Collateral may
have been sold at such a private sale was less than the price which might
have been obtained at a public sale, even if Pledgee accepts the first offer
received and does not offer such Pledged Collateral to more than one
offeree. If the proceeds of any sale or other disposition of the Pledged
Collateral are insufficient to pay all the Secured Obligations, Pledgor
shall be liable for the deficiency and the fees of any attorneys employed
by Pledgee to collect such deficiency.
(b) If Pledgee determines to exercise its right to sell any
or all of the Pledged Collateral, upon written request, Pledgor shall
furnish to Pledgee all such information as Pledgee may reasonably request
in order to facilitate such sale.
SECTION 10. Pledgee May Perform. If Pledgor fails to perform
any agreement contained herein, then, during an Event of Default, Pledgee
may itself perform, or cause performance of, such agreement, and the
expenses of Pledgee incurred in connection therewith shall be payable by
Pledgor under Section 15(b) hereof.
SECTION 11. Pledgee Appointed Attorney-in-Fact. Pledgor hereby
irrevocably appoints Pledgee as Pledgor's attorney-in-fact, with full
authority in the place and stead of Pledgor and in the name of Pledgor or
otherwise, from time to time, during the continuation of an Event of
Default, in Pledgee's reasonable discretion to take any action and to
execute any instrument, including but not limited to financing and
continuation statements, which Pledgee may deem necessary or advisable,
subject to the terms and conditions of this Agreement, to accomplish the
purposes of this Agreement, including, without limitation, (a) to receive,
endorse and collect all instruments made payable to Pledgor representing any
dividend, principal or interest payment or other distribution in respect of
the Pledged Collateral or any part thereof and to give full discharge for
the same, and (b) to ask, demand, collect, sue for, recover, compound,
receive and give acquittance and receipts for moneys due and to become due
under or in respect of any of the Pledged Collateral, and to file any claims
or take any action or institute any proceedings which Pledgee may deem
necessary or desirable for the collection of any of the Pledged Collateral
or to enforce the rights of Pledgee with respect to any of the Pledged
Collateral.
SECTION 12. Standard of Care. The powers conferred on Pledgee
hereunder are solely to protect its interest in the Pledged Collateral and
shall not impose on it any duty to exercise such powers. Pledgee shall be
deemed to have exercised reasonable care in the custody and preservation of
the Pledged Collateral in its possession if the Pledged Collateral is
accorded treatment substantially equivalent to that which Pledgee accords
its own property consisting of negotiable securities, it being understood
that Pledgee shall have no responsibility for (a) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders
or other matters relating to any Pledged Collateral, whether or not Pledgee
has or is deemed to have knowledge of such matters, (b) taking any necessary
steps (other than steps taken in accordance with the standard of care set
forth above to maintain possession of the Pledged Collateral) to preserve
rights against any parties with respect to any Pledged Collateral,
(c) taking any necessary steps to collect or realize upon the Secured
Obligations or any guarantee therefor, or any part thereof, or any of the
Pledged Collateral, or (d) initiating any action to protect the Pledged
Collateral against the possibility of a decline in market value.
SECTION 13. Application of Proceeds. All Proceeds received by
Pledgee in respect of any sale of, collection from, or other realization
upon all or any part of the Pledged Collateral may, in the discretion of
Pledgee, be held by Pledgee as Pledged Collateral for, and/or then or at any
time thereafter applied in whole or in part by Pledgee against the Secured
Obligations in the following order of priority:
FIRST: To the payment of all costs and expenses of such sale,
collection or other realization, and all expenses, liabilities and
advances made or incurred by Pledgee in connection therewith and all
amounts for which Pledgee is entitled to indemnification and
reimbursement hereunder and all advances made by Pledgee hereunder for
the account of the Pledgor or for the payment of all costs and
expenses paid or incurred by Pledgee in connection with the exercise
of any right or remedy hereunder, all in accordance with Section 15
hereof;
SECOND: To the payment in full of all Secured Obligations,
including those obligations set forth in the Note; and
THIRD: To the payment to or upon the order of Pledgor, or to
whosoever may be lawfully entitled to receive the same or as a court
of competent jurisdiction may direct, of any surplus then remaining
from such proceeds.
SECTION 14. Actions by Pledgee. During the continuation of an
Event of Default, Pledgee shall have the right hereunder, in its sole
discretion, to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking any action with
respect to the Pledged Collateral (including, without limitation, the
release or substitution of Pledged Collateral).
SECTION 15. Indemnity and Expenses.
(a) Pledgor agrees to indemnify Pledgee and each of the
officers, directors, agents, employees and affiliates of Pledgee (each an
"Indemnitee"), from and against any and all claims, losses and liabilities
in any way relating to, growing out of or resulting from this Agreement and
the transactions contemplated hereby (including, without limitation,
enforcement of this Agreement), except claims, losses or liabilities
resulting from the gross negligence or willful misconduct of the Indemnitee
seeking indemnification.
(b) Pledgor will upon demand pay to Pledgee the amount of any
and all reasonable costs and expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, which Pledgee may
incur in connection with (i) the administration of this Agreement, (ii) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Pledged Collateral, (iii) the exercise or
enforcement of any of the rights of Pledgee hereunder, or (iv) the failure
by Pledgor to perform or observe any of the provisions hereof.
SECTION 16. Waivers of Pledgor.
(a) Pledgor hereby waives any right to require Pledgee to:
(i) proceed against Pledgor, any guarantor of any of the Secured Obligations
or any other person or entity, (ii) proceed against or exhaust any other
security held from Pledgor or any other person or entity, (iii) give notice
to Pledgor of the terms, time and place of any public or private sale of the
Pledged Collateral or any other security, or otherwise comply with Section
9504 of the Uniform Commercial Code (except as set forth in this Agreement),
(iv) pursue any other remedy in Pledgee's power, or (v) make or give any
presentments, demands for performance, notices of nonperformance, protests,
notices of protest or notices of dishonor in connection with any obligations
or evidences of indebtedness which constitute in whole or in part the
Secured Obligations or in connection with the creation of new or additional
Secured Obligations;
(b) Pledgor waives any defense arising by reason of: (i) any
disability or other defense of Pledgor or any other entity, including,
without limitation, any defense based on or arising out of the
unenforceability of any of the Secured Obligations, legal or equitable
discharge of the Secured Obligations or this Agreement or any statute of
limitations affecting Pledgor's liability hereunder, (ii) the cessation from
any cause whatsoever, other than payment in full, of the Secured Obligations
or the release or substitution of any sureties or guarantors of the Secured
Obligations, (iii) any act or omission (other than as a result of the gross
negligence or willful misconduct of the Pledgee) by Pledgee which directly
or indirectly results in or aids the discharge of Pledgor or any of the
Secured Obligations by operation of law or otherwise, (iv) the release of
any other collateral securing the Secured Obligations or the failure by
Pledgee to perfect or maintain the perfection of any such other collateral,
(v) any modification of the Secured Obligations, in any form whatsoever,
including, but not limited to the renewal, extension, acceleration or other
change in the time for payment of the Secured Obligations, and any change
in the terms of the Secured Obligations, including, but not limited to, any
increase or decrease of the rate of interest on the Secured Obligations, and
(vi) any law limiting the liability of or exonerating guarantors or
sureties; and
(c) until all the Secured Obligations shall have been paid in
full, Pledgor waives any right to enforce any remedy which Pledgee now has
or may hereafter have against any person or entity guaranteeing or securing
the Secured Obligations, and waives any benefit of, or any right to
participate in any security whatsoever now or hereafter held by Pledgee for
the Secured Obligations.
SECTION 17. Continuing Security Interest; Transfer of
Indebtedness. This Agreement shall create a continuing security interest
in the Pledged Collateral and shall, unless released and/or terminated,
(a) remain in full force and effect until indefeasible payment in full of
all Secured Obligations, (b) be binding upon Pledgor, its successors and
assigns, and (c) inure, together with the rights and remedies of Pledgee
hereunder, to the benefit of Pledgee and its successors, and permitted
transferees and assigns. Without limiting the generality of the foregoing
clause (c), upon any assignment by Pledgee of any Underlying Debt of the
Borrower held by it to any other person or entity, such other person or
entity shall thereupon become vested with all the benefits in respect
thereof granted to Pledgee herein or otherwise. Upon the date upon which
the Secured Obligations have been indefeasibly paid and performed in full
and the Note has been extinguished and cancelled, this Agreement shall
automatically terminate, and (i) Pledgor shall be entitled to the return,
upon its request and at its expense, against receipt and without recourse
to Pledgee, of such of the Pledged Collateral pledged by Pledgor hereunder
as shall not have been sold or otherwise applied pursuant to the terms
hereof prior to such request, (ii) Pledgee's security interest in and lien
on such Pledged Collateral shall be simultaneously released upon the making
of such request, and (iii) Pledgee shall, at Pledgor's expense, execute
and/or deliver such documents as Pledgor shall reasonably request to
evidence such release.
SECTION 18. No Waiver by Pledgee; Authority of Pledgor. No
failure on the part of Pledgee to exercise, and no course of dealing with
respect to, and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise
by Pledgee of any right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or
remedy. The remedies herein provided are cumulative to the fullest extent
permitted by law and are not exclusive of any remedies provided by law. It
is not necessary for Pledgee to inquire into the powers of Pledgor or the
officers, directors or agents acting or purporting to act on behalf of
Pledgor.
SECTION 19. Amendment, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by Pledgor
herefrom, shall in any event be effective unless the same shall be in
writing and signed by Pledgee, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which given.
SECTION 20. Addresses for Notices. Unless otherwise
specifically provided herein, any notice or other communication herein
required or permitted to be given shall be given as provided under Section
12 of the Employment Agreement.
SECTION 21. Governing Law; Terms. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF WISCONSIN, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND
EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY
INTEREST GRANTED HEREUNDER, OR ANY REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR PLEDGED COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN THE STATE OF WISCONSIN. Unless otherwise defined herein, terms
defined in Article 9 of the Code are used herein as therein defined.
SECTION 22. Severability. Any provisions of this Agreement
which are prohibited or unenforceable in any jurisdiction shall, as to such
jurisdictions, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 23. Consent to Jurisdiction and Service of Process.
(a) Any legal action or proceeding with respect to this Agreement and any
action for enforcement of any judgment in respect thereof may be brought in
the courts of the State of Wisconsin or of the United States of America for
the Eastern District of Wisconsin, and, by execution and delivery of this
Agreement, each of Pledgor and Pledgee hereby accepts for itself and in
respect of its property, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and any appellate courts from any
thereof. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that Pledgee may
otherwise have to bring any action or proceeding relating to this Agreement
against Pledgor or its properties in the courts of any jurisdiction.
(b) Pledgor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (a) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 20 hereof.
Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 24. Marshaling; Payments Set Aside. Pledgee shall not
be under any obligation to marshal any assets in favor of Pledgor or any
other party or against or in payment of any or all of the Secured
Obligations. To the extent that Pledgor makes a payment or payments to
Pledgee or Pledgee enforces its security interests or exercises its rights
of setoff, and such payment or payments or proceeds of such enforcement or
setoff or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of such
recovery, the obligation or part thereof originally intended to be
satisfied, and all Liens, rights and remedies therefor, shall be revived and
continued in full force and effect as if such payment had not been made or
such enforcement or setoff had not occurred.
SECTION 25. Headings. Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall
not constitute a part of this Agreement or be given any substantive effect.
SECTION 26. Counterparts. This Agreement and any amendments,
waivers, consents or supplements may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed
an original, and all of which together shall constitute one and the same
Agreement.
IN WITNESS WHEREOF, Pledgor has caused this Pledge Agreement to
be duly executed and delivered as of the date first above written.
PLEDGOR:
MICHAEL W. SALSIEDER
/s/Michael W. Salsieder
PLEDGEE:
BUCYRUS INTERNATIONAL, INC.
By: /s/Stephen R. Light
Name: Stephen R. Light
Title: President and Chief Executive Officer
SCHEDULE I
to the Pledge Agreement
Attached to and forming a part of the Pledge Agreement, dated
as of June 23, 1999, between Pledgor and Pledgee.
Pledgor: Michael W. Salsieder
Percent of
Shares Issued
Class Stock Number and
Stock Pledgee of Stock Certificate Nos. of Shares Outstanding
Bucyrus
International, Inc. Common 750 .05%
SCHEDULE II
to the Pledge Agreement
[FORM OF PLEDGE AMENDMENT]
This Pledge Amendment, dated [_______ __, ____], is delivered
pursuant to Section 7 of the Pledge Agreement referred to below. The
undersigned hereby agrees that this Pledge Amendment may be attached to the
Pledge Agreement, dated as of June 23, 1999, between Michael W. Salsieder
and Pledgee (the "Pledge Agreement"; capitalized terms defined therein being
used herein as therein defined), and that the Pledged Shares listed on this
Pledge Amendment shall be deemed to be part of the Pledged Shares and shall
become part of the Pledged Collateral and shall secure the Secured
Obligations as provided in the Pledge Agreement.
MICHAEL W. SALSIEDER
______________________________
Percent of
Shares Issued
Class Stock Number and
Stock Issuer of Stock Certificate Nos. of Shares Outstanding