STRATEGIC ALLIANCE
ALLIANCE AGREEMENT
dated as of
June 2, 1995
between
FREIGHTLINER CORPORATION
a Delaware corporation
and
OSHKOSH TRUCK CORPORATION
a Wisconsin corporation
ALLIANCE AGREEMENT
ARTICLE I
CERTAIN DEFINITIONS
ARTICLE II
PURCHASE AND SALE OF SECURITIES
SECTION 2.1 Purchase of Securities . . . . . . . . . . . . . . 8
SECTION 2.2 Purchase Price for Securities . . . . . . . . . . . 8
SECTION 2.3 Deliveries at the Closing . . . . . . . . . . . . . 8
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF OSHKOSH
SECTION 3.1 Organization and Qualification; Subsidiaries . . 9
SECTION 3.2 Articles of Incorporation and By-Laws . . . . . . 10
SECTION 3.3 Capitalization . . . . . . . . . . . . . . . . . 10
SECTION 3.4 Authority Relative to this Alliance Agreement,
etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.5 Issuance of Securities . . . . . . . . . . . . . 11
SECTION 3.6 No Conflicts . . . . . . . . . . . . . . . . . . 11
SECTION 3.7 Governmental Consents, etc. . . . . . . . . . . . 11
SECTION 3.8 Compliance . . . . . . . . . . . . . . . . . . . 12
SECTION 3.9 Reports . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.10 Absence of Certain Changes or Events . . . . . . . 13
SECTION 3.11 Absence of Litigation . . . . . . . . . . . . . . 13
SECTION 3.12 Employee Benefit Plans . . . . . . . . . . . . . . 13
SECTION 3.13 Title to Properties; Encumbrances . . . . . . . . 14
SECTION 3.14 Certain Contracts . . . . . . . . . . . . . . . . 14
SECTION 3.15 Intellectual Property, etc. . . . . . . . . . . . . 15
SECTION 3.16 Taxes . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.17 Environmental Matters . . . . . . . . . . . . . . 16
SECTION 3.18 Undisclosed Liabilities . . . . . . . . . . . . . 18
SECTION 3.19 Contracts with Affiliates; Contracts with Respect
to Shares . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.20 Disclosure . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.21 Brokers . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF FREIGHTLINER
SECTION 4.1 Corporate Organization . . . . . . . . . . . . . . 19
SECTION 4.2 Authority Relative to This Alliance Agreement . . . 19
SECTION 4.3 No Conflicts . . . . . . . . . . . . . . . . . . . 19
SECTION 4.4 Governmental Consents, etc. . . . . . . . . . . . . 20
SECTION 4.5 Brokers . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.6 Investment . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.7 Disclosure . . . . . . . . . . . . . . . . . . . . 20
ARTICLE V
CONDITIONS TO THE CLOSING
SECTION 5.1 Conditions to Obligations of Freightliner and
Oshkosh . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 5.2 Conditions to Obligations of Freightliner to Effect
the Closing . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 5.3 Conditions to Obligations of Oshkosh to Effect the
Closing . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE VI
INVESTMENT COVENANTS
SECTION 6.1 Interim Conduct of the Business of the Company . 23
SECTION 6.2 Reservation of Shares . . . . . . . . . . . . . . 24
SECTION 6.3 Preemptive Rights . . . . . . . . . . . . . . . . 24
SECTION 6.4 Board of Directors . . . . . . . . . . . . . . . 24
SECTION 6.5 Standstill Restrictions . . . . . . . . . . . . . 25
SECTION 6.6 Restrictions on Transfers of Voting Stock . . . . 26
SECTION 6.7 Rights of First Refusal; Restrictions on
Transfer . . . . . . . . . . . . . . . . . . . . 26
SECTION 6.8 Registration Rights . . . . . . . . . . . . . . . 28
SECTION 6.9 Consents . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.10 Certain Filings . . . . . . . . . . . . . . . . . 29
SECTION 6.11 Notices of Certain Events . . . . . . . . . . . . 29
SECTION 6.12 Further Assurances . . . . . . . . . . . . . . . . 29
SECTION 6.13 Public Announcements . . . . . . . . . . . . . . . 30
SECTION 6.14 Other Offers . . . . . . . . . . . . . . . . . . . 30
ARTICLE VII
ALLIANCE COVENANTS
SECTION 7.1 Purpose . . . . . . . . . . . . . . . . . . . . . 30
SECTION 7.2 Non-Commercial DOD Business . . . . . . . . . . . 31
SECTION 7.3 Front Discharge Concrete Truck . . . . . . . . . 32
SECTION 7.4 Oshkosh Refuse Products . . . . . . . . . . . . . 32
SECTION 7.5 On/Off Highway Haulers (F and J Series) . . . . . 33
SECTION 7.6 Integrated Rear Discharge Concrete Truck Mixer . 33
SECTION 7.7 Twin Steer Trucks . . . . . . . . . . . . . . . . 34
SECTION 7.8 All Wheel Drive Trucks . . . . . . . . . . . . . 34
SECTION 7.9 Oshkosh Snow Removal and ARFF Trucks . . . . . . 34
SECTION 7.10 Unimog . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 7.11 Components . . . . . . . . . . . . . . . . . . . . 35
SECTION 7.12 Sourcing Coordination . . . . . . . . . . . . . . 36
SECTION 7.13 Protection of Intellectual Property Interests . . 36
SECTION 7.14 Pricing . . . . . . . . . . . . . . . . . . . . . 36
SECTION 7.15 Systems Integration . . . . . . . . . . . . . . . 36
SECTION 7.16 Sales and Parts Distribution Transition . . . . . 36
SECTION 7.17 Continuity of Sourcing . . . . . . . . . . . . . . 37
ARTICLE VIII
ORGANIZATION AND MANAGEMENT OF ALLIANCE
SECTION 8.1 Executive Advisory Board . . . . . . . . . . . . . 37
SECTION 8.2 Functional and Ad-Hoc Committees . . . . . . . . . 40
SECTION 8.3 Seconded Representatives . . . . . . . . . . . . . 41
SECTION 8.4 Consultation Procedures . . . . . . . . . . . . . . 41
SECTION 8.5 Dispute Resolution; Deadlock . . . . . . . . . . . 42
SECTION 8.6 Annual Review of Alliance . . . . . . . . . . . . . 42
ARTICLE IX
TERMINATION
SECTION 9.1 Pre-Closing Termination . . . . . . . . . . . . . . 43
SECTION 9.2 Post-Closing Termination . . . . . . . . . . . . . 44
SECTION 9.3 Effect of Termination . . . . . . . . . . . . . . . 44
ARTICLE X
INDEMNIFICATION
SECTION 10.1 Survival . . . . . . . . . . . . . . . . . . . . . 44
SECTION 10.2 Indemnification . . . . . . . . . . . . . . . . . 44
SECTION 10.3 Procedures . . . . . . . . . . . . . . . . . . . . 45
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Amendments; No Waivers . . . . . . . . . . . . . 45
SECTION 11.2 Entire Agreement; Assignment . . . . . . . . . . 46
SECTION 11.3 Validity . . . . . . . . . . . . . . . . . . . . 46
SECTION 11.4 Notices . . . . . . . . . . . . . . . . . . . . 46
SECTION 11.5 Governing Law . . . . . . . . . . . . . . . . . 48
SECTION 11.6 Descriptive Headings . . . . . . . . . . . . . . 48
SECTION 11.7 Parties in Interest . . . . . . . . . . . . . . 48
SECTION 11.8 Counterparts . . . . . . . . . . . . . . . . . . 48
SECTION 11.9 Equitable Relief . . . . . . . . . . . . . . . . 48
SECTION 11.10 Expenses . . . . . . . . . . . . . . . . . . . . 48
ANNEX A
SERIES A WARRANT TO PURCHASE
SHARES OF CLASS B COMMON STOCK
of
OSHKOSH TRUCK CORPORATION
1. Term of Warrant . . . . . . . . . . . . . . . . . . . . . . A-2
2. Exercise of Warrant . . . . . . . . . . . . . . . . . . . . A-2
2.1 Method . . . . . . . . . . . . . . . . . . . . . . . . A-2
2.2 Effect . . . . . . . . . . . . . . . . . . . . . . . . A-2
2.3 Holder Not a Shareholder . . . . . . . . . . . . . . . A-3
2.4 No Fractional Shares or Scrip . . . . . . . . . . . . A-3
3. Registered Warrants . . . . . . . . . . . . . . . . . . . . A-3
3.1 Series . . . . . . . . . . . . . . . . . . . . . . . . A-3
3.2 Record Ownership . . . . . . . . . . . . . . . . . . . A-3
3.3 Registration of Transfer . . . . . . . . . . . . . . . A-3
3.4 Worn and Lost Warrants . . . . . . . . . . . . . . . . A-4
3.5 Restrictions on Transfer . . . . . . . . . . . . . . . A-4
3.6 Warrant Agent . . . . . . . . . . . . . . . . . . . . A-4
4. Reservation of Stock . . . . . . . . . . . . . . . . . . . A-4
5. Effects of Certain Events . . . . . . . . . . . . . . . . . A-5
5.1 Class B Common Stock Dividends, Subdivisions or
Combinations . . . . . . . . . . . . . . . . . . . . . A-5
5.2 Distributions of Assets or Securities Other Than Class
B Common Stock . . . . . . . . . . . . . . . . . . . . A-5
5.3 Below Market Distributions or Issuances . . . . . . . A-5
5.4 Repurchases . . . . . . . . . . . . . . . . . . . . . A-6
5.5 Fractional Shares . . . . . . . . . . . . . . . . . . A-7
6. Certain Reorganizations . . . . . . . . . . . . . . . . . . A-7
7. No Impairment . . . . . . . . . . . . . . . . . . . . . . . A-7
8. Calculation of Adjustments . . . . . . . . . . . . . . . . A-7
9. Certificate as to Adjustments . . . . . . . . . . . . . . . A-8
10. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . A-8
10.1 Dilutive Events . . . . . . . . . . . . . . . . . . . A-8
10.2 Dissolution; Liquidation . . . . . . . . . . . . . . . A-8
10.3 Repurchase Programs . . . . . . . . . . . . . . . . . A-9
11. Amendments . . . . . . . . . . . . . . . . . . . . . . . . A-9
12. Additional Definition . . . . . . . . . . . . . . . . . . . A-9
13. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . A-9
14. Time . . . . . . . . . . . . . . . . . . . . . . . . . . . A-9
15. Rules of Construction . . . . . . . . . . . . . . . . . . . A-9
16. Governing Law . . . . . . . . . . . . . . . . . . . . . . . A-9
ASSIGNMENT OF WARRANT . . . . . . . . . . A-10
NOTICE OF EXERCISE . . . . . . . . . . . A-11
ANNEX B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
ANNEX C
REGISTRATION RIGHTS
SECTION 1. Demand Registration . . . . . . . . . . . . . . . C-1
SECTION 2. Piggyback Registration . . . . . . . . . . . . . C-3
SECTION 3. Incidental Obligations . . . . . . . . . . . . . C-4
SECTION 4. Registration Expenses . . . . . . . . . . . . . . C-4
SECTION 5. Indemnification, Contribution,
Underwriting Agreement . . . . . . . . . . . . . . . C-5
SECTION 6. Transferability . . . . . . . . . . . . . . . . . C-5
INDEX OF DEFINED TERMS
Ad-Hoc Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Alliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Alliance Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Alliance Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Asset Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . 2
Audited Financial Statements . . . . . . . . . . . . . . . . . . . . . 13
beneficial ownership . . . . . . . . . . . . . . . . . . . . . . . . . 2
beneficially own . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Class A Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . 3
Class B Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . 3
Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Co-Chairman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Acquisition Proposal . . . . . . . . . . . . . . . . . . . . . 30
Company Disclosure Schedule . . . . . . . . . . . . . . . . . . . . . . 4
Company Material Adverse Effect . . . . . . . . . . . . . . . . . . . . 4
Consulted Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Consulting Party . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Customer support . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Daimler-Benz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Decision Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Department of Justice . . . . . . . . . . . . . . . . . . . . . . . . . 29
DOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
EAB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Employee Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Encumbrance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Environmental Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Environmental Notice . . . . . . . . . . . . . . . . . . . . . . . . . 18
EPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ERISA Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Executive Advisory Board . . . . . . . . . . . . . . . . . . . . . . . 37
Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Exercise Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Exon-Florio Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 20
First Refusal Closing . . . . . . . . . . . . . . . . . . . . . . . . . 28
Foreign Benefit Plan . . . . . . . . . . . . . . . . . . . . . . . . . 14
Freightliner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Freightliner Director . . . . . . . . . . . . . . . . . . . . . . . . . 24
FTC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Functional Committees . . . . . . . . . . . . . . . . . . . . . . . . . 40
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Governmental Body . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Governmental Permit . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Hart-Scott-Rodino Act . . . . . . . . . . . . . . . . . . . . . . . . . 5
Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . 15
IRS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
LTICP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Market Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Mercedes-Benz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Multiemployer Plan . . . . . . . . . . . . . . . . . . . . . . . . . . 5
NASDAQ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Offeror . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . 5
Oshkosh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
PBGC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Permitted Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . 6
Permitted Transferee . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . C-4
Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Right of First Refusal . . . . . . . . . . . . . . . . . . . . . . . . 27
SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Standstill Percentage . . . . . . . . . . . . . . . . . . . . . . . . . 6
Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Termination Notice . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Warrant Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ALLIANCE AGREEMENT
ALLIANCE AGREEMENT, dated as of June 2, 1995 (the "Alliance
Agreement"), between Freightliner Corporation, a Delaware corporation
("Freightliner"), and Oshkosh Truck Corporation, a Wisconsin corporation
("Oshkosh").
WHEREAS, Freightliner and Oshkosh have previously entered into a non-
binding letter of intent providing for a comprehensive and far-reaching
strategic alliance of the two companies; and
WHEREAS, it is intended that in furtherance of the strategic alliance
the parties will pursue joint development, production, marketing and
distribution initiatives in specific areas of the business of making and
selling heavy duty trucks (including components) and that they will
maximize these opportunities by making specific initiatives subject to the
leadership and responsibility of one or the other of the parties; and
WHEREAS, in order to support the strategic alliance and to permit
Freightliner to participate in the anticipated benefits of the alliance to
the stockholders of Oshkosh Freightliner will make a common equity
investment in Oshkosh and will also acquire warrants to purchase
additional common equity in Oshkosh; and
WHEREAS, the respective Boards of Directors of each of Freightliner
and Oshkosh have determined that the transactions provided for in this
Alliance Agreement are in the best interests of their respective companies
and shareholders and have approved and adopted this Alliance Agreement and
the Management Board (Vorstand) of each of Daimler-Benz
Aktiengesellschaft, a stock corporation organized under the laws of
Germany and the parent of Freightliner ("Daimler-Benz"), and Mercedes-Benz
Aktiengesellschaft, a stock corporation organized under the laws of
Germany and a wholly owned subsidiary of Daimler-Benz ("Mercedes-Benz"),
have approved this Agreement and the transactions contemplated hereby.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms have the meanings
specified for them in this Article I:
"Affiliate" - With respect to any Person, any other Person which,
directly or indirectly, controls or is controlled by, or is under common
control with, such Person. For purposes of this definition "control"
(including the correlative meanings of the terms "controlled by" and
"under common control with"), with respect to any Person, shall mean
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of voting securities or by contract or otherwise.
"Alliance Period" - The period commencing on the Closing Date and
ending on the expiration date of this Alliance Agreement.
"Asset Purchase Agreement" - The asset purchase agreement, dated as
of the date hereof, between Freightliner, a newly formed wholly owned
subsidiary of Freightliner and Oshkosh, pursuant to which Freightliner
will acquire certain assets of the chassis division of Oshkosh.
"beneficial ownership" and "beneficially own" - With respect to any
equity securities, any interest therein which constitutes "beneficial
ownership" or which cause the holder thereof to "beneficially own" such
securities as such terms are used and defined in Rule 13d-3 under the
Exchange Act; provided that, solely for purposes of the Alliance Agreement
and for no other purpose, Freightliner shall be deemed to be the
beneficial owner of the Warrant Shares from and after the Closing Date.
"Business Day" - Any day that is not a Saturday, Sunday or a day on
which banks located in either the State of Oregon or the State of
Wisconsin are required to be closed.
"Change of Control" - With respect to Oshkosh, (i) the acquisition by
any Person or group (other than Persons who are listed as beneficial
owners of Class A Common Stock in the beneficial ownership table of the
Oshkosh proxy statement dated December 19, 1994 and other than Permitted
Transferees) of beneficial ownership of more than 150,000 shares of Class
A Common Stock; (ii) the acquisition by any Person or group (other than
Persons who are listed as beneficial owners of Class A Common Stock in the
beneficial ownership table of the Oshkosh proxy statement dated December
19, 1994 and other than Permitted Transferees) of beneficial ownership of
shares of Common Stock constituting more than 25% of all issued and
outstanding shares of Common Stock; (iii) the shareholders of Oshkosh
approve by the legally requisite vote any merger, consolidation,
liquidation or other business combination transaction with any other
Person pursuant to or as a result of which any Person or group (other than
Persons who are listed as beneficial owners of Class A Common Stock in the
beneficial ownership table of the Oshkosh proxy statement dated
December 19, 1994 and other than Permitted Transferees) acquires
beneficial ownership of securities of the resulting or surviving entity
with voting power in excess of 25% of the outstanding voting power of such
entity; or (iv) during any period of two consecutive years (not including
any period prior to the execution of this Alliance Agreement), individuals
who at the beginning of such period constitute the entire Board of Oshkosh
or all of the Class A directors of Oshkosh, together with any new director
or directors whose election by the Board or nomination for election by the
Oshkosh shareholders was approved by a vote of at least 60% of all
directors and 100% of all Class A directors then in office who were
directors (or Class A directors, as the case may be) at the beginning of
the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the Oshkosh
Board or of the Class A directors of Oshkosh; and with respect to
Freightliner, a sale, transfer, assignment, pledge, hypothecation or other
disposition of a majority of the voting capital stock of Freightliner by
its stockholder to any Person or group that was not, immediately prior to
such sale, transfer, assignment, pledge, hypothecation or disposition, an
Affiliate of Freightliner.
"Class A Common Stock" - Authorized shares of Common Stock classified
as Class A Common Stock.
"Class B Common Stock" - Authorized shares of Common Stock classified
as Class B Common Stock.
"Closing" - The consummation of the purchase and sale transactions as
provided in Article II of this Agreement, which shall take place at 10:00
A.M. in the offices of Freightliner, 4747 North Channel Avenue, Portland,
Oregon, or at such other time and place as the parties may agree.
"Closing Date" - The date on which the Closing actually occurs which
shall be the latest to occur of (i) June 2, 1995, (ii) the date on which
the conditions identified in Sections 5.1, 5.2 and 5.3 of this Agreement
have been satisfied or waived, and (iii) such other date as the parties
mutually agree.
"Code" - The Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated thereunder.
"Common Stock" - Authorized shares of common stock, par value $.01
per share, of Oshkosh.
"Company" - Oshkosh and its consolidated Subsidiaries, taken as a
whole.
"Company Disclosure Schedule" - The written schedule of disclosures
which Oshkosh is delivering to Freightliner as contemplated by this
Alliance Agreement simultaneously with the execution and delivery hereof,
containing various exceptions to the representations and undertakings of
Oshkosh as set forth in this Agreement.
"Company Material Adverse Effect" - Any effect resulting from an
existing or incipient condition, fact, development or other situation
which effect is materially adverse to the business, properties, assets,
liabilities, results of operations or financial condition of the Company.
"Encumbrance" - Any security interest, mortgage, deed of trust, lien
(including any lien imposed by any court or any Governmental Body),
pledge, assignment, hypothecation, deposit arrangement, option, sale and
leaseback transaction, financing statement filing, any lessor's or
lessee's interest under any lease, charge, adverse claim or restriction of
any kind or character, including without limitation the rights of any
vendor, lessor or other Person under any conditional sale or other title
retention agreement or any lease, sublien, charge, preferential
arrangement or other claim, and any restriction on the use, voting,
transfer, receipt of income or other exercise of any attributes of
ownership.
"Environment" - The air, ground (surface and subsurface strata) or
water (surface or groundwater), or the workplace.
"Environmental Law" - Any applicable federal, state, local or other
law, statute, ordinance, rule, common law, regulation, permit, judgment,
order, decree or other binding requirement of, or binding agreement with,
any Governmental Body, relating to the presence, release or threatened
release of materials, energy or noise into the environment or workplace,
the protection of natural resources and the Environment, historic
preservation, zoning or land use, and any judicial ruling, court decree,
order or judgment with respect thereto.
"EPA" - The United States Environmental Protection Agency and any
successor Governmental Body.
"ERISA" - The Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations promulgated thereunder.
"ERISA Affiliate" - Any trade or business, whether or not
incorporated, that together with Oshkosh would be deemed a "single
employer" within the meaning of Section 4001 of ERISA.
"Exchange Act" - The Securities Exchange Act of 1934, as amended from
time to time, and the rules and regulations promulgated thereunder.
"Exemption" -- Any exemption from any legal requirement to obtain or
apply for a Governmental Permit.
"Governmental Body" - Any domestic or foreign national, regional,
state (including the District of Columbia and the Commonwealth of Puerto
Rico) or municipal or other local government or multi-national body
(including the European Union), any subdivision, agency, commission,
authority or instrumentality thereof, or any quasi-governmental or
arbitral tribunal or other private body exercising any regulatory or
taxing authority thereunder.
"Governmental Permit" - Any permit, authorization, registration,
consent, approval, registration, exemption, waiver, franchise, exception,
variance, order, certificate, judgment, decree, license, exemption or
declaration of or by any court or Governmental Body.
"Hart-Scott-Rodino Act" - The Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and regulations
promulgated thereunder.
"IRS" - The United States Internal Revenue Service and any successor
Governmental Body.
"Multiemployer Plan" - Any "multi-employer plan" as defined in
Section 4001(a)(3) of ERISA or Section 414(f) of the Code, either
currently or formerly contributed to (or required to be contributed to) by
Oshkosh, any subsidiary or any ERISA Affiliate.
"Officer's Certificate" - A certificate reciting and certifying, on
behalf of the party delivering the certificate, the statements required to
be recited and certified and signed in their capacity as officers of such
party by any two of the Chairman, President, Chief Financial Officer,
Secretary, Treasurer and General Counsel of the party on whose behalf the
certificate is required to be delivered.
"PBGC" - The Pension Benefit Guaranty Corporation or any Person
succeeding to all or substantially all of its functions under ERISA.
"Permitted Encumbrances" - Any Encumbrance which is (i) an
Encumbrance for current taxes not yet due and payable, (ii) related to a
zoning or building statute, ordinance, resolution or regulation not
violated by existing improvements on or the current use of the property or
any portion thereof subject thereto, (iii) inchoate mechanic and
materialmen or comparable Encumbrances for construction in progress which,
in the aggregate, do not exceed $50,000, (iv) Encumbrances which do not
interfere with the current use of the property or asset subject thereto,
or (v) listed and described on Schedule 1.1 of the Company Disclosure
Schedule.
"Permitted Transferee" - Any one or more of J.P. Mosling, Jr., S.P.
Mosling, their parents, brothers and sisters, any lineal descendant of the
foregoing, any spouse of any of the foregoing, any estate of any of the
foregoing and any trust for the benefit of any of the foregoing.
"Person" - Any natural person, corporation, partnership, limited
liability company, joint venture, trust, association, unincorporated
organization, Governmental Body or other entity.
"Release" - Any release, spill, leak, placement, pumping, pouring,
flooding, emission, emptying, discharge, injection, escape, leaching,
migration, disposal or dumping.
"SEC" - The United States Securities and Exchange Commission, and any
successor Governmental Body.
"Securities Act" - The Securities Act of 1933, as amended from time
to time, and the rules and regulations promulgated thereunder.
"Standstill Percentage" - 16% of the total number of shares of Voting
Stock, considering Freightliner as the beneficial owner of all outstanding
shares of Class B Common Stock that it is purchasing hereunder and of all
Warrant Shares issuable upon an exercise of the Warrants for so long as,
and to the extent that, Freightliner retains its beneficial ownership of
such Warrants; provided, however, the Standstill Percentage shall be
adjusted downward at any time that Freightliner sells or otherwise
disposes of any shares of Common Stock, Warrants or Warrant Shares to the
percentage that the shares of Common Stock and Warrants Shares then
beneficially owned by Freightliner bears to the total number of shares of
Voting Stock then outstanding (including all Warrant Shares that
Freightliner beneficially owns) and shall be adjusted upward at any time
that an action taken by Oshkosh causes the number of shares of Voting
Stock (including Warrant Shares) then beneficially owned by Freightliner
to exceed the Standstill Percentage without any action on the part of
Freightliner.
"Subsidiary" - With respect to any Person, any other Person (whether
now existing or hereafter organized or acquired) in which (other than
directors' qualifying shares required by law) at least a majority of the
securities or other ownership interests of each class having ordinary
voting power or analogous right (other than securities or other ownership
interests which have such power or right only by reason of the happening
of a contingency that has not yet occurred), at the time as of which any
determination is being made, are owned, beneficially and of record, by
such Person or by one or more of the other Subsidiaries of such Person or
by any combination thereof.
"Tax" or "Taxes" - Any and all taxes, charges, fees, imposts, levies,
interest, penalties, additions to tax or other assessments or fees of any
kind (whether federal, state, local or foreign), including without
limitation income, corporate, capital, gross receipts, profits,
occupation, ad valorem, transfer, withholding, payroll, employment,
excise, property, sales, use, turnover, value added and franchise taxes,
deductions, withholdings and custom duties, imposed by any Governmental
Body.
"Tax Returns" - Any return, report, information return or other
document (including any related or supporting information) filed or
required to be filed with any Governmental Body in connection with the
determination, assessment, collection or administration of any Taxes or
the administration of any laws, regulations or administrative requirements
relating to any Taxes.
"Voting Stock" - The Class A Common Stock, the Class B Common Stock,
the Warrant Shares and any other securities (including voting preferred
shares) issued by Oshkosh if such other securities are entitled to vote
generally for the election of one or more classes of directors of Oshkosh,
whether currently outstanding or hereafter issued and outstanding (other
than securities having such powers only upon the occurrence of a
contingency that has not yet occurred).
"Warrants" - The Warrants to purchase Class B Common Stock in the
form of Annex A attached hereto.
"Warrant Shares" - 1,250,000 shares of Class B Common Stock issuable
upon the exercise of the Warrants in accordance with their terms.
Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and the plural,
and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, the feminine and the neuter.
ARTICLE II
PURCHASE AND SALE OF SECURITIES
SECTION 2.1 Purchase of Securities. Upon the terms and subject
to the conditions set forth in this Agreement, and in reliance on the
representations, warranties, covenants and agreements contained in this
Agreement, on the Closing Date:
(a) Oshkosh shall issue, sell and deliver to Freightliner,
and Freightliner shall accept, purchase and pay for, 350,000
shares (the "Shares") of newly issued Class B Common Stock,
registered in the name of Freightliner (or its nominee); and
(b) Oshkosh shall issue, sell and deliver to Freightliner,
and Freightliner shall accept, purchase and pay for, the
Warrants to purchase 1,250,000 Warrant Shares, which shall be in
the form set forth in Annex A to this Agreement and shall be
registered in the name of Freightliner (or its nominee).
SECTION 2.2 Purchase Price for Securities. The aggregate
purchase price payable by Freightliner for the securities purchased
pursuant to Section 2.1 shall be $9,437,500 in cash, consisting of $15 per
share for the shares of Class B Common Stock and $3.35 per Warrant for the
Warrants.
SECTION 2.3 Deliveries at the Closing. At the Closing:
(a) Oshkosh shall deliver the following to Freightliner:
(i) A stock certificate or certificates evidencing 350,000
newly issued, fully paid and non-assessable (except for
statutory liability under Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law) shares of Class B Common
Stock (the "Stock"), duly executed and registered in the name of
Freightliner and bearing an appropriate legend to the effect
that they have been acquired in a transaction that has not been
registered under applicable securities law.
(ii) A Warrant certificate or certificates substantially in
the form of Annex A evidencing the Warrants to purchase
1,250,000 Warrant Shares and bearing an appropriate legend to
the effect that they have been acquired in a transaction that
has not been registered under applicable securities law.
(iii) The Officer's Certificates and other documents
contemplated by Section 5.2(d).
(iv) All other documents, instruments and writings required
to be delivered by Oshkosh at or prior to the Closing Date
pursuant to this Alliance Agreement or otherwise required in
connection herewith, it being understood and agreed that as of
the Closing Date neither the shares of Common Stock nor the
Warrants being acquired by Freightliner will be registered under
the Securities Act or any state securities act.
(b) Freightliner shall deliver the following to Oshkosh:
(i) A wire transfer of immediately funds in the amount of
$9,437,500 to any bank in the United States designated in
writing by Oshkosh with accompanying wiring instructions at
least two business days prior to the scheduled Closing Date.
(ii) The Officer's Certificates contemplated by Section
5.3(c).
(iii) All other documents, instruments and writings
required to be delivered by Freightliner at or prior to the
Closing Date pursuant to this Alliance Agreement or otherwise
required in connection herewith.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF OSHKOSH
Oshkosh hereby represents and warrants to Freightliner, solely
in connection with this Agreement, that:
SECTION 3.1 Organization and Qualification; Subsidiaries. Each
of Oshkosh and its Subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction in which
it is incorporated and has the requisite corporate power and authority to
own, operate or lease its properties and to carry on its business as it is
now being conducted, and is duly qualified as a foreign corporation to do
business, and is in good standing, in each jurisdiction where the
character of its properties owned, operated or leased or the nature of its
activities makes such qualification necessary, except for such failures to
so qualify or to be in good standing which would not individually or in
the aggregate have a Company Material Adverse Effect.
SECTION 3.2 Articles of Incorporation and By-Laws. Oshkosh has
furnished to Freightliner a complete and correct copy of the Articles of
Incorporation and the By-Laws, each as amended to date, of Oshkosh and
each of its Subsidiaries. The Articles of Incorporation and By-Laws of
Oshkosh and of each of its Subsidiaries are in full force and effect.
Neither Oshkosh nor any of its Subsidiaries is in violation of any of the
provisions of its Articles of Incorporation or By-Laws.
SECTION 3.3 Capitalization. The authorized capital stock of
Oshkosh consists of 21,000,000 shares of stock, which consist of
19,000,000 shares of Common Stock, of which 1,000,000 shares are Class A
Common Stock and 18,000,000 million shares are Class B Common Stock, and
2,000,000 shares of preferred stock, par value $.01 per share (the
"Preferred Stock"). As of the date hereof, there are 449,370 shares of
Class A Common Stock issued and outstanding, 8,262,595 shares of Class B
Common Stock issued and outstanding and no shares of Preferred Stock
issued or outstanding. All of such issued and outstanding shares of
Common Stock are validly issued, fully paid and nonassessable (except for
statutory liability under Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law) and free of preemptive rights. As of the date hereof,
296,200 authorized and issued shares of Class B Common Stock are held in
the treasury of Oshkosh, and no other shares of Common Stock or Preferred
Stock are held in the treasury of Oshkosh. As of the date hereof,
1,365,000 shares of Common Stock or Preferred Stock are reserved for
issuance pursuant to the terms of any outstanding security, agreement or
other obligation of Oshkosh. Except as set forth in Section 3.3 of the
Company Disclosure Schedule and as provided in this Alliance Agreement,
there are no shares of capital stock of Oshkosh issued or outstanding or
any options, warrants, subscriptions, calls, rights, pledges, convertible
or exchangeable securities or other agreements or commitments obligating
Oshkosh to issue, transfer or sell any shares of its capital stock.
Except as set forth in Section 3.3 of the Company Disclosure Schedule,
there are no voting trusts or other agreements or understandings to which
Oshkosh or any current stockholder of Oshkosh or, to the knowledge of
Oshkosh, any other Affiliate of Oshkosh is a party or is bound with
respect to the acquisition, sale or issuance, ownership or voting of its
capital stock.
SECTION 3.4 Authority Relative to this Alliance Agreement, etc.
Oshkosh has all necessary corporate power and authority to execute and
deliver this Alliance Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Alliance
Agreement by Oshkosh and the consummation by Oshkosh of the transactions
contemplated hereby have been duly authorized by all necessary corporate
action on the part of Oshkosh. This Alliance Agreement has been duly
executed and delivered by Oshkosh and, assuming the due authorization,
execution and delivery by Freightliner, constitutes a legal, valid and
binding obligation of Oshkosh, enforceable against Oshkosh in accordance
with its terms.
SECTION 3.5 Issuance of Securities. The Shares have been duly
and validly authorized and, upon payment therefor by Freightliner and
issuance and delivery thereof by Oshkosh in accordance with this Alliance
Agreement, will be duly and validly issued, fully paid, nonassessable
(except for statutory liability under Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law), free of preemptive rights and free
and clear of all Encumbrances. The execution, issuance and delivery of
the Warrants by Oshkosh have been duly authorized by all necessary corpo-
rate action on the part of Oshkosh. Upon their execution, issuance and
delivery in accordance with this Alliance Agreement, the Warrants will
have been duly executed, issued and delivered by Oshkosh and will
constitute a legal, valid and binding obligation of Oshkosh, enforceable
against Oshkosh in accordance with their terms. The Warrant Shares have
been duly and validly authorized and reserved for issuance and, upon
payment therefor by Freightliner and issuance and delivery thereof by
Oshkosh in accordance with this Alliance Agreement and the terms of the
Warrants, will be duly and validly issued, fully paid, nonassessable
(except for statutory liability under Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law), free of preemptive rights and free
and clear of all Encumbrances.
SECTION 3.6 No Conflicts. The execution and delivery of this
Alliance Agreement by Oshkosh does not, and the performance of this
Alliance Agreement (including the issuance and delivery of the Shares, the
execution, delivery and issuance of the Warrants and the issuance and
delivery of the Warrant Shares upon exercise of the Warrants) by Oshkosh
will not, (i) conflict with or violate the Articles of Incorporation or
By-Laws of Oshkosh or any of its Subsidiaries, (ii) conflict with or
violate any order, judgment, writ, injunction or decree applicable to
Oshkosh or any of its Subsidiaries or by which any of their respective
properties or assets may be bound, (iii) conflict with or violate any
statute, rule or regulation applicable to Oshkosh or any of its
Subsidiaries or by which any of their respective properties or assets may
be bound, or (iv) except as set forth in Section 3.6(iv) of the Company
Disclosure Schedule, result in a violation or breach of, or constitute a
default (or an event which with notice or lapse of time or both would
constitute a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of
an Encumbrance on any of the properties or assets of Oshkosh or any of its
Subsidiaries pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or
obligation to which Oshkosh or any of its Subsidiaries is a party or by
which Oshkosh or any of its Subsidiaries or any of their respective
properties or assets may be bound, except for, in the case of clauses
(iii) and (iv), any such violations, breaches, defaults or other occur-
rences which would not, individually or in the aggregate, have a Company
Material Adverse Effect.
SECTION 3.7 Governmental Consents, etc. Except for applicable
requirements of the Hart-Scott-Rodino Act, the execution and delivery of
this Alliance Agreement by Oshkosh does not and the performance of this
Alliance Agreement (including the issuance and delivery of the Shares and
the Warrants and the performance of the Warrants) by Oshkosh will not,
require any consent, approval, authorization or permit of, or filing with
or notification to, any federal, state, foreign, or other governmental or
regulatory authority.
SECTION 3.8 Compliance. Oshkosh and each of its Subsidiaries
(i) are, and the business of Oshkosh and each of its Subsidiaries has been
conducted, in all material respects in compliance with all statutes,
rules, regulations, ordinances, zoning restrictions, codes, orders,
licenses and permits of every Governmental Body applicable to Oshkosh or
any of its Subsidiaries or by which Oshkosh or any of its Subsidiaries or
any of their respective properties or assets may be bound and (ii) have
all Governmental Permits necessary to conduct their businesses as
currently conducted and such Governmental Permits are in full force and
effect, and no violation exists or has been recorded in respect of any
such Governmental Permits, no proceeding is pending or threatened with
respect to the revocation or limitation of any such Governmental Permit
and there is no basis or ground for any such revocation or limitation,
other than, in the case of clauses (i) and (ii) above, such matters which
would not, individually or in the aggregate, have a Company Material
Adverse Effect.
SECTION 3.9 Reports. Oshkosh has filed all required
statements, forms, reports and other documents with the SEC since
September 30, 1992 (collectively, the "SEC Reports"), all of which (as
they may have been amended prior to the date hereof) as of the filing date
complied in all material respects with all applicable requirements of the
Securities Act and the Exchange Act. None of the SEC Reports contained as
of the filing date any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading. Each of the balance sheets
(including the related notes and the reports thereon of Ernst & Young LLP,
independent public accountants for Oshkosh) included in the SEC Reports
fairly presents in all material respects the consolidated financial
position of the Company as of the respective dates thereof, and the other
related financial statements (including the related notes and the reports
thereon of Ernst & Young LLP, independent public accountants for Oshkosh)
included therein fairly present in all material respects the results of
operations and cash flows of the Company for the respective fiscal periods
then ended, except, in the case of interim financial statements, for
normal year-end audit adjustments. Each of the financial statements
(including the related notes and the reports thereon of Ernst & Young LLP,
independent public accountants for Oshkosh) included in the SEC Reports
has been prepared in accordance with United States generally accepted
accounting principles ("GAAP") consistently applied during the periods in-
volved, except as otherwise noted therein and, in the case of interim
financial statements, subject to normal year-end adjustments and the
absence of notes. The financial statements as of and for the years ended
September 30, 1992, September 25, 1993, and September 30, 1994
(including the related notes and the reports thereon of Ernst & Young LLP,
independent public accountants for Oshkosh) are hereinafter referred to as
the "Audited Financial Statements."
SECTION 3.10 Absence of Certain Changes or Events. Since
September 30, 1994, each of Oshkosh and its Subsidiaries has conducted its
business only in the ordinary course of business and in a manner
consistent with past practice and, except as set forth in Section 3.10 of
the Company Disclosure Schedule, there has not been (a) any Company
Material Adverse Effect, (b) any damage, destruction or loss (whether or
not covered by insurance) with respect to any assets of Oshkosh or any of
its Subsidiaries which would have a Company Material Adverse Effect, (c)
any change by Oshkosh or any of its Subsidiaries in accounting methods,
principles or practices, (d) any entry by Oshkosh or any of its
Subsidiaries into any commitments or transactions material to the Company,
or (e) any increase in or establishment of any bonus, insurance,
severance, deferred compensation, pension, retirement, profit sharing,
stock option (including, without limitation, the granting of stock
options, stock appreciation rights, performance awards or restricted stock
awards), stock purchase or other employee benefit plan applicable to, or
any other increase in the compensation payable or to become payable to,
any officers or key employees of Oshkosh or any of its Subsidiaries.
SECTION 3.11 Absence of Litigation. Except as set forth in
Section 3.11 of the Company Disclosure Schedule and except for product
liability, warranty liability and employment-related claims arising in the
ordinary course of business, there are no claims, actions, suits, proceed-
ings or investigations pending or threatened against Oshkosh or any of its
Subsidiaries, or any properties or rights of Oshkosh or any of its
Subsidiaries, before any court, tribunal, panel, arbitrator or
Governmental Body, domestic or foreign. None of Oshkosh or any of its
Subsidiaries is subject to any material order, writ, judgment, injunction,
decree, determination or award.
SECTION 3.12 Employee Benefit Plans.
(a) Oshkosh has made available to Freightliner complete
and correct copies of all written employee benefit plans (as defined in
Section 3(3) of ERISA) under which Oshkosh, any of its Subsidiaries or any
ERISA Affiliate, have any present or future obligations or liabilities in
respect of employees or former employees of Oshkosh, any of its Subsidiar-
ies or any ERISA Affiliate or their dependents or beneficiaries (the
"Employee Plans").
(b) Except as otherwise described in Section 3.12 of the
Company Disclosure Schedule, (i) none of the Employee Plans is a
Multiemployer Plan; (ii) to the knowledge of Oshkosh, there has been no
"prohibited transaction," as such term is defined in Section 406 of ERISA
and Section 4975 of the Code, with respect to any Employee Plan that is
not exempt under Section 408 of ERISA which could result in any material
liability of Oshkosh or any of its Subsidiaries; (iii) all Employee Plans
are in compliance in all material respects with the requirements
prescribed by applicable law (including, without limitation, ERISA and the
Code) and have been administered in all material respects in accordance
with their respective terms; (iv) each Employee Plan intended to qualify
under Section 401(a) of the Code and each trust established in connection
with any Employee Plan intended to qualify under Section 501(a) of the
Code does, to the knowledge of Oshkosh, so qualify, and a favorable
determination letter with respect to each such Employee Plan and trust has
been received from the IRS and nothing has since occurred which may
reasonably be expected to cause the loss of such qualification or
exemption; (v) none of the assets of Oshkosh, any of its Subsidiaries or
any ERISA Affiliate is subject to any Encumbrance arising under Section
302(f) of ERISA or Section 412(n) of the Code, neither Oshkosh, any of its
Subsidiaries nor any ERISA Affiliate has been required to post any
security under Section 307 of ERISA or Section 401(a)(29) of the Code, and
no fact or event exists which could give rise to any such Encumbrance or
requirement to post any such security; (vi) with respect to each Employee
Plan no "reportable event" which is required to be reported to the PBGC
within the meaning of Section 4043 of ERISA nor any event described in
Section 4062, 4063 or 4041 of ERISA has occurred, (vii) neither Oshkosh,
any of its Subsidiaries nor any ERISA Affiliate has incurred or reasonably
expects to incur (A) any liability to the PBGC with respect to any
Employee Plan (other than a liability for premiums pursuant to Section
4007 of ERISA), (B) any withdrawal liability with respect to any
Multiemployer Plan; or (C) any liability under Title IV of ERISA, and
(viii) neither Oshkosh, any of its Subsidiaries nor any ERISA Affiliate
has received any notification that any Multiemployer Plan is in
reorganization or is being or has been terminated within the meaning of
Title IV of ERISA, and Oshkosh has no reason to believe that any
Multiemployer Plan will be in reorganization or will be terminated.
(c) In addition to the foregoing, with respect to each
employee benefit plan maintained by a Subsidiary of Oshkosh that is not
subject to United States law (a "Foreign Benefit Plan"), to the best of
Oshkosh's knowledge, (i) each Foreign Benefit Plan has been maintained in
compliance with applicable law in all material respects and (ii) there are
no undisclosed material liabilities with respect to any such Foreign
Benefit Plan.
SECTION 3.13 Title to Properties; Encumbrances. Except for
Permitted Encumbrances or except as set forth in Section 3.13 of the
Company Disclosure Schedule, each of Oshkosh and its Subsidiaries has good
and marketable title to all properties and assets, real, personal and
mixed, reflected in its books as being owned by it, in each case free and
clear of all Encumbrances.
SECTION 3.14 Certain Contracts. Except to the extent set forth
(x) in Section 3.14 of the Company Disclosure Schedule, or (y) in the SEC
Reports, neither Oshkosh nor any of its Subsidiaries is a party to any
written or binding oral: (a) employment, consulting or severance
agreement, collective bargaining agreement, or pension, profit-sharing,
incentive compensation, deferred compensation, stock purchase, stock
option, stock appreciation right, group insurance, severance pay, or
retirement plan or agreement involving any director or officer or former
director or officer; (b) indenture, mortgage, note, installment
obligation, agreement or other instrument relating to the borrowing of
money by Oshkosh or any of its Subsidiaries or the guaranty of any
obligation for the borrowing of money by Oshkosh or any of its
Subsidiaries; (c) agreement which involves an aggregate obligation of more
than $500,000; (d) agreement with or for the benefit, directly or
indirectly, of any Affiliate of Oshkosh or, if an individual, members of
such Person's immediate family which will remain in effect following the
Closing Date which involves an aggregate obligation of more than $60,000;
(e) agreement containing covenants limiting the freedom of Oshkosh or any
of its Subsidiaries to compete in any line of business with any Person or
in any area or territory; or (f) license agreement (collectively, the
"Contracts"). Complete and correct copies of all Contracts listed in
Section 3.14 of the Company Disclosure Schedule have been delivered or
have been made available for inspection to Freightliner. Except as set
forth in Section 3.14 of the Company Disclosure Schedule or as
specifically identified in the SEC Reports, there is not, under any of the
Contracts, any existing default or event of default which, with or without
due notice or lapse of time or both, would constitute a default or event
of default on the part of Oshkosh or any of its Subsidiaries, except such
defaults, events of default and other events which would not, individually
or in the aggregate, have a Company Material Adverse Effect; and the Con-
tracts are valid and binding obligations of Oshkosh or the relevant
Subsidiary and, to Oshkosh's knowledge, of the other party or parties
thereto, and they are in full force and effect and are enforceable in
accordance with their respective terms. Except as set forth in Section
3.14 of the Company Disclosure Schedule, to the knowledge of Oshkosh, no
other party to any of the Contracts is in default in the performance of
any material covenant or obligation to be performed by it pursuant to any
such Contract or has given notice that it intends to terminate, or alter
in any way adverse to Oshkosh or such Subsidiary, its performance under
such Contract, excluding from the foregoing all defaults and notices of
termination or alteration which would not, individually or in the aggre-
gate, reasonably be expected to have a Company Material Adverse Effect.
With respect to leases of real property included in the Contracts, such
leases of Oshkosh and its Subsidiaries create valid leasehold interests in
such real property.
SECTION 3.15 Intellectual Property, etc. Oshkosh or one of its
Subsidiaries owns free and clear of all Encumbrances, except for Permitted
Encumbrances, or possesses adequate licenses and other rights to use, all
material patents, trademarks, trade names, copyrights, know-how and other
proprietary information used or held for use in connection with the busi-
ness of the Company as currently being, or proposed to be, conducted (the
"Intellectual Property"). All of the Intellectual Property is valid and
subsisting and neither Oshkosh nor any of its Subsidiaries has any
knowledge of any assertions or claims challenging the validity of any of
the Intellectual Property. To the knowledge of Oshkosh, the conduct of
the business of the Company as now conducted or proposed to be conducted
does not and will not conflict with any patents, trademarks, trade names,
copyrights, know-how or other proprietary information of others in any way
which would have a Company Material Adverse Effect, and no such intel-
lectual property of others conflicts with the Intellectual Property except
for such conflicts which would not have a Company Material Adverse Effect.
SECTION 3.16 Taxes.
(a) Oshkosh and each of its Subsidiaries (i) have timely filed (or
have had filed on their behalf) or will file or cause to be timely filed
all Tax Returns required to be filed by any of them on or prior to the
Closing Date (all such returns being true, correct and complete in all
material respects), other than those Tax Returns the failure of which to
file is not reasonably likely to have a Company Material Adverse Effect
and (ii) have duly paid (or have had paid on their behalf) all Taxes shown
to be due on such Tax Returns, other than Taxes the nonpayment of which
would not, in the aggregate, be reasonably likely to have a Company
Material Adverse Effect or that are being contested in good faith through
appropriate proceedings. There are no Liens for Taxes upon any of the
assets of Oshkosh or any of its Subsidiaries other than Liens for Taxes
not yet due or payable.
(b) The reserve for Taxes reflected in the balance sheet for the
year ended September 30, 1994 included in the Audited Financial Statements
is adequate for the payment of all liabilities for Taxes of Oshkosh and
each of its Subsidiaries through the date thereof, other than for Taxes
being contested in good faith through appropriate proceedings. Any Taxes
in respect of the period since the date of such balance sheet have arisen
in the ordinary course of business. The United States federal income Tax
Returns of Oshkosh and its Subsidiaries have been closed through the
taxable year ended September 30, 1986. The State of Wisconsin income Tax
Returns are closed through the taxable year ended September 30, 1985.
Except as set forth on Section 3.16(b) of the Company Disclosure Schedule,
no deficiency or adjustment for any Taxes has been asserted or assessed
against Oshkosh or any of its Subsidiaries. Except as set forth on
Section 3.16(b) of the Company Disclosure Schedule, neither Oshkosh nor
any of its Subsidiaries has granted any requests, agreements, consents or
waivers to extend the statutory period of limitations applicable to the
assessment of any Taxes with respect to any Tax Returns of Oshkosh or any
of its Subsidiaries. Except as set forth on Section 3.16(b) of the
Company Disclosure Schedule, there are no ongoing audits or examinations
of any of the Tax returns of Oshkosh or any of its Subsidiaries.
SECTION 3.17 Environmental Matters.
(a) Except as provided in Section 3.17(a) of the Company
Disclosure Schedule, to the knowledge of Oshkosh, Oshkosh and each of its
Subsidiaries are in compliance with all Environmental Laws as presently in
effect which are applicable to their property or their business. Oshkosh
and each of its Subsidiaries (i) hold all material Governmental Permits
and Exemptions required to be held pursuant to Environmental Laws as
presently in effect for the current use, occupancy or operation of their
property or business, and (ii) are in material compliance with each such
Governmental Permit and Exemption.
(b) Except as provided in Section 3.17(b) of the Company
Disclosure Schedule, or as would not have a Company Material Adverse
Effect, there is no Environmental Notice (as defined in paragraph (f)
below) pending or threatened against Oshkosh or any of its Subsidiaries
or, to Oshkosh's knowledge, against any Person whose liability for such
Environmental Notice may have been retained or assumed by or could be
imputed or attributed to Oshkosh or any of its Subsidiaries.
(c) Except as provided in Section 3.17(c) of the Company
Disclosure Schedule, to the knowledge of Oshkosh, there are no past or
present actions, activities, circumstances, conditions, events or inci-
dents, that could form the basis of any Environmental Notice against or
with respect to Oshkosh or any of its Subsidiaries or, to Oshkosh's best
knowledge, against or with respect to any Person whose liability for any
Environmental Notice may have been retained or assumed by or could be
imputed or attributed to Oshkosh or any of its Subsidiaries.
(d) Except as provided in Section 3.17(d) of the Company
Disclosure Schedule, to the knowledge of Oshkosh, (i) there are not at the
present time, and there never have been at any time in the past, any
underground storage tanks located on property currently or formerly owned
or leased by Oshkosh or any of its Subsidiaries, (ii) no part of any real
property of, and no operation of, Oshkosh or its Subsidiaries is or has
been or, based on current circumstances, will be a TSDF under the federal
Resource Conservation and Recovery Act or any similar state law, and (iii)
Oshkosh and its Subsidiaries have not disposed of materials on any
property at any time owned, leased or operated by any of them, nor have
they transported or arranged for the disposal of materials except in
compliance with applicable Environmental Law at the time of such disposal.
(e) Except as provided in Section 3.17(e) of the Company
Disclosure Schedule, to the knowledge of Oshkosh, (i) there is no friable
asbestos present at and no asbestos has been used in manufacturing at any
property owned or leased by Oshkosh or any of its Subsidiaries that would
require removal or abatement under applicable Environmental Laws, and (ii)
no polychlorinated biphenyls (PCB's) are or have been used or stored on
any property owned or leased by Oshkosh or any of its Subsidiaries.
(f) For purposes of this Section 3.17, "Environmental
Notice" means any written notice or claim by any Person alleging potential
liability (including, without limitation, potential liability for
investigatory costs, remedial costs, governmental costs, harm or damages
to a Person, property, natural resources or other, control or prevention
of nuisance and similar conduct, fines or penalties) arising out of, based
on or resulting from (i) the emission, discharge, disposal, release or
threatened release in or into the environment of any material or (ii)
circumstances forming the basis of any violation, or alleged violation, of
any applicable Environmental Laws.
SECTION 3.18 Undisclosed Liabilities. Except as set forth in
Section 3.18 of the Company Disclosure Schedule, neither Oshkosh nor any
of its Subsidiaries has any liability or obligation, secured or unsecured
(whether absolute, accrued, contingent or otherwise, and whether due or to
become due), of a nature required by GAAP to be reflected in a corporate
balance sheet or disclosed in the notes thereto, other than such liabili-
ties and obligations which are adequately accrued or reserved against in
the balance sheet for the quarter ended March 31, 1995 included in
Oshkosh's Report to the SEC on Form 10-Q for such quarter or disclosed in
the notes thereto or which (i) were incurred after the date of such
balance sheet in the ordinary course of business consistent with past
practice, and (ii) in the aggregate are not material to the Company.
SECTION 3.19 Contracts with Affiliates; Contracts with Respect
to Shares. Except as set forth in Section 3.19 of the Company Disclosure
Schedule or as contemplated in this Alliance Agreement, there are no (i)
contracts, arrangements or understandings between Oshkosh or any of its
Subsidiaries on the one hand and any Affiliate (other than a Subsidiary)
of Oshkosh on the other and no (ii) contracts, arrangements or
understandings to which Oshkosh, any Subsidiary of Oshkosh or, to the
knowledge of Oshkosh, any Affiliate of Oshkosh is a party or is bound
relating to the capital stock of Oshkosh or any of its Subsidiaries,
including the purchasing, selling, transferring, voting or holding of such
capital stock, or with respect to the membership of the Board of Directors
of such companies or the management or control of such companies.
SECTION 3.20 Disclosure. The representations and warranties of
Oshkosh contained in this Alliance Agreement and in the other certificates
furnished to Freightliner (which includes for this purpose Daimler-Benz,
Mercedes-Benz and other Affiliates of Freightliner), by or on behalf of
Oshkosh pursuant to this Alliance Agreement, when considered as a whole
(after giving effect to any supplements or amendments thereof prior to the
time of signing on the date hereof), do not contain any untrue statement
of a material fact and do not omit to state any material fact necessary in
order to make the statements contained herein or therein not misleading.
There is no fact known to Oshkosh (other than matters of a general
economic or competitive nature) which has resulted in, or could be
reasonably expected to result in, a Company Material Adverse Effect which
has not been disclosed herein or in such other documents, certificates and
statements furnished to Freightliner pursuant to this Alliance Agreement.
SECTION 3.21 Brokers. Except as set forth in Section 3.21 of
the Company Disclosure Schedule, no broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated by this Alliance Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF FREIGHTLINER
Freightliner hereby represents and warrants to Oshkosh that:
SECTION 4.1 Corporate Organization. Freightliner is a corpo-
ration duly organized, validly existing and in good standing under the
laws of the State of Delaware and has the requisite corporate power and
authority to own, operate or lease its properties and to carry on its
business as it is now being conducted. All of the outstanding capital
stock of Freightliner is owned by Daimler-Benz North America Corporation,
a Delaware corporation which is a direct wholly owned subsidiary of
Daimler-Benz.
SECTION 4.2 Authority Relative to This Alliance Agreement.
Freightliner has all necessary corporate power and authority to execute
and deliver this Alliance Agreement and to consummate the transactions
contemplated hereby and has the financial resources to consummate such
transactions or has a commitment from Mercedes-Benz or another of its
financially capable Affiliates to provide such resources. The execution
and delivery of this Alliance Agreement by Freightliner and the consum-
mation by Freightliner of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of
Freightliner and all of its Affiliates (including Daimler-Benz and
Mercedes-Benz). This Alliance Agreement has been duly executed and
delivered by Freightliner and, assuming the due authorization, execution
and delivery by Oshkosh, constitutes a legal, valid and binding obligation
of Freightliner, enforceable against Freightliner in accordance with its
terms.
SECTION 4.3 No Conflicts. The execution and delivery of this
Alliance Agreement by Freightliner does not, and the performance of this
Alliance Agreement by Freightliner will not, (i) conflict with or violate
the Certificate of Incorporation or By-Laws (or other charter documents)
of Freightliner, (ii) conflict with or violate any order, judgment, writ,
injunction, decree, statute, rule or regulation applicable to Freightliner
or by which it or any of its properties or assets may be bound or (iii)
result in a violation of or breach of, or constitute a default (or an
event which with notice or lapse of time or both would constitute a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of an
Encumbrance on any of the property or assets of Freightliner pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which Freightliner
is a party or by which any of its properties or assets may be bound,
except in the case of clauses (ii) and (iii) for any such violations,
breaches, defaults or other occurrences which would not, individually or
in the aggregate, have a material adverse effect on the business,
properties, assets, liabilities, results of operations or financial
condition of Freightliner and its Subsidiaries, taken as a whole.
SECTION 4.4 Governmental Consents, etc. Except for applicable
requirements of the Hart-Scott-Rodino Act, the Omnibus Trade and
Competitiveness Act of 1988 (the "Exon-Florio Amendment"), the Bank
Holding Company Act of 1956, as amended, the International Banking Act of
1978, as amended, and the rules and regulations promulgated under such
Acts, the execution and delivery of this Alliance Agreement by
Freightliner does not, and the performance of this Alliance Agreement or
the exercise of the Warrants in accordance with the terms thereof by
Freightliner will not, require any consent, approval, authorization or
permit of, or filing with or notification to, any Governmental Body,
except for such consents, approvals, authorizations and permits for which
the failure to obtain or make them would not prevent or delay consummation
of the transactions contemplated by this Alliance Agreement or otherwise
prevent Freightliner from performing its obligations under this Alliance
Agreement or from exercising the Warrants as provided therein.
SECTION 4.5 Brokers. Except as Freightliner has disclosed in
writing to Oshkosh, no broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Alliance Agreement.
SECTION 4.6 Investment. Freightliner is acquiring the Shares
and the Warrants and any Warrant Shares issuable upon exercise of the
Warrants in accordance with the terms thereof for investment and not with
a view toward, or for sale in connection with, any distribution thereof,
nor with any present intention of distributing or selling the Shares, the
Warrants or the Warrant Shares.
SECTION 4.7 Disclosure. The representations and warranties of
Freightliner contained in this Alliance Agreement and in the other
certificates furnished to Oshkosh, by or on behalf of Freightliner
pursuant to this Alliance Agreement, when considered as a whole (after
giving effect to any supplements or amendments thereof prior to the time
of signing on the date hereof), do not contain any untrue statement of a
material fact and do not omit to state any material fact necessary in
order to make the statements contained herein or therein not misleading.
There is no fact known to Freightliner (other than matters of a general
economic or competitive nature) which has resulted in, or could be
reasonably expected to result in, a material adverse effect on the
business of Freightliner, taken as a whole, which has not been disclosed
herein or in such other documents, certificates and statements furnished
to Oshkosh pursuant to this Alliance Agreement.
ARTICLE V
CONDITIONS TO THE CLOSING
SECTION 5.1 Conditions to Obligations of Freightliner and
Oshkosh. The respective obligations of Freightliner and Oshkosh to effect
the Closing shall be subject to the fulfillment on or prior to the Closing
Date of the following conditions, any one or more of which may be waived
if they are waived by both Freightliner and Oshkosh:
(a) No Governmental Body, and no national, federal, state
or local court of competent jurisdiction, shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation, executive
order, decree, injunction or other order (whether temporary, preliminary
or permanent) which is in effect and binding upon Freightliner or Oshkosh
or both and has the effect of making the transactions contemplated hereby
illegal or otherwise restricting, preventing or prohibiting consummation
of the transactions contemplated by this Alliance Agreement.
(b) This Agreement and the transactions contemplated
hereby shall have been approved by the stockholders of Oshkosh by the vote
required by law if such approval is required by law; provided, however,
that approval of the structure of any conversion privileges of Class A
stockholders may occur in due course at a date subsequent to Closing at
such time as the holders of a majority of such Class A stockholders may
determine.
(c) The applicable waiting period under the Hart-Scott-
Rodino Act relating to the transactions contemplated hereby shall have
expired or been terminated.
(d) All of the conditions to the closing of the
transactions contemplated under the Asset Purchase Agreement shall have
been satisfied or waived, and such closing shall be occurring
simultaneously with the Closing hereunder.
SECTION 5.2 Conditions to Obligations of Freightliner to Effect
the Closing. The obligations of Freightliner to effect the Closing shall
be further subject to the fulfillment on or prior to the Closing Date of
each of the following conditions, any one or more of which may be waived
by Freightliner:
(a) The representations and warranties of Oshkosh
contained in this Alliance Agreement and in any certificate or agreement
of Oshkosh delivered pursuant hereto shall be true and correct in all
material respects on the date hereof and on and as of the Closing Date
(unless a representation speaks as of a specified date), with the same
force and effect as if made on and as of such Closing Date.
(b) All the agreements and obligations contained in this
Alliance Agreement and in any certificate or agreement of Oshkosh
delivered pursuant hereto to be performed or complied with by Oshkosh, at
or before the Closing, shall have been performed or complied with in all
material respects.
(c) The holders of Class A Common Stock identified in
Annex B shall have executed and delivered to each of Freightliner and
Oshkosh a letter agreement in the form of Annex B.
(d) Oshkosh shall have furnished to Freightliner such
Officer's Certificates and such other documents to evidence fulfillment of
the conditions set forth in this Article V as Freightliner may have
reasonably requested, including without limitation fulfillment of the
conditions set forth paragraphs (a) and (b) of this Section 5.2.
SECTION 5.3 Conditions to Obligations of Oshkosh to Effect the
Closing. The obligations of Oshkosh to effect the Closing shall be
further subject to the fulfillment on or prior to the Closing Date of the
following conditions, any one or more of which may be waived by Oshkosh:
(a) The representations and warranties of Freightliner
contained in this Alliance Agreement and in any certificate or agreement
of Freightliner delivered pursuant hereto shall be true and correct in all
material respects on the date hereof and on and as of the Closing Date
with the same force and effect as if made as of the Closing Date.
(b) All the agreements contained in this Alliance
Agreement and in any certificate or agreement of Freightliner delivered
pursuant hereto to be performed or complied with by Freightliner, at or
before the Closing, shall have been performed or complied with in all
material respects.
(c) Freightliner shall have furnished to Oshkosh such
Officer's Certificates and such other documents to evidence fulfillment of
the conditions set forth in this Article V as Oshkosh may have reasonably
requested, including without limitation fulfillment of the conditions set
forth paragraphs (a) and (b) of this Section 5.3.
ARTICLE VI
INVESTMENT COVENANTS
SECTION 6.1 Interim Conduct of the Business of the Company.
From the date hereof until the Closing Date, unless Freightliner shall
otherwise have consented in writing, Oshkosh and its Subsidiaries shall
conduct their respective businesses in the ordinary course consistent with
past practice and shall use their commercially reasonable best efforts to
preserve intact their business organizations and relationships with third
parties and to keep available the services of their present officers and
employees. Without limiting the generality of the foregoing, from the
date hereof until the Closing Date, except as contemplated or required by
this Alliance Agreement or set forth in Section 6.1 of the Oshkosh
Disclosure Schedule, neither Oshkosh nor any Subsidiary shall, directly or
indirectly, do, or propose or agree to do, any of the following without
the prior written consent of Freightliner:
(a) adopt or propose any change in their respective articles of
incorporation or bylaws or equivalent organizational documents;
(b) merge or consolidate with any other Person or, except in
the ordinary course of business, acquire a material amount of assets of
any other Person;
(c) sell, lease, license or otherwise dispose of any material
assets or property except (i) pursuant to existing contracts or
commitments or (ii) in the ordinary course consistent with past practice;
(d) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with respect
to any of their respective capital stock unless all such capital stock is
wholly owned by Oshkosh or a direct or indirect wholly owned Subsidiary of
Oshkosh; provided that Oshkosh may declare and pay regular quarterly cash
dividends on the Common Stock in the ordinary course;
(e) reclassify, combine, split, subdivide or redeem, purchase
or otherwise acquire, directly or indirectly, any of their respective
capital stock, except in connection with any conversion of Class A Common
Stock into Class B Common Stock;
(f) agree or commit to do any of the foregoing; or
(g) take or agree or commit to take any action that would make
any representation and warranty of Oshkosh hereunder inaccurate in any
respect at, or as of any time prior to, the Closing Date.
SECTION 6.2 Reservation of Shares. Oshkosh shall at all times
reserve and keep available for issuance such number of its authorized but
unissued shares of Class B Common Stock to enable Freightliner to acquire
the Warrant Shares through the exercise of the Warrants at any time that
it elects to make such exercise.
SECTION 6.3 Preemptive Rights. (a) During the Alliance
Period, Oshkosh shall not issue, sell or otherwise distribute any shares
of capital stock of Oshkosh (other than shares of Class A Common Stock),
unless it shall first have notified Freightliner of its intention to do so
and shall have afforded Freightliner a reasonable period (not less than 10
Business Days) within which to make a binding commitment to purchase or
otherwise acquire that number of shares out of such issuance, sale or
distribution on the same terms as the remaining shares are being issued,
sold or distributed which will permit Freightliner to retain the same
percentage ownership in Oshkosh that it has immediately prior to the
completion of such issuance, sale or distribution. If Class B Common
Stock is being issued, sold or distributed, Freightliner pre-transaction
and post-transaction percentage ownership shall be calculated in the same
manner that the Standstill Percentage and Freightliner's beneficial
ownership are calculated.
(b) Notwithstanding anything to the contrary in this Section
6.3, Freightliner shall have no right of prior notice with respect to the
grant or exercise of any rights to acquire shares of capital stock of
Oshkosh under existing or future grants of options, restricted stock or
performance share units under the Oshkosh 1990 Incentive Stock Plan for
Key Employees, as amended, or the 1994 Long Term Incentive Compensation
Plan ("LTICP"), and instead shall have the right only to notice of any
exercise of options, vesting of restricted shares or delivery of shares
under the LTICP. If Freightliner shall exercise its preemptive rights as
to any such exercise, the price at which Oshkosh will issue and sell such
shares shall be the greater of $15 per share or the price at which Common
Stock is so issued pursuant to such exercise.
SECTION 6.4 Board of Directors. (a) Promptly after the
Closing Date, Oshkosh will take such action as may be necessary to
increase the size of its Board of Directors from seven members to ten
members, with seven of such members being elected by the holders of the
Class A Common Stock and three of such members being elected by the
holders of the Class B Common Stock, and to fill the vacancy among the
Class B directors by electing the President and Chief Executive Officer of
Freightliner as a Class B director (the "Freightliner Director").
(b) Except as provided in paragraph (a), during the Alliance
Period:
(i) Oshkosh will not take or recommend to its stockholders
any action which would cause the number of Class A directors to
exceed six or would cause the number of Class B directors to
exceed two; and
(ii) in connection with each meeting of stockholders of
Oshkosh, Oshkosh shall nominate the President and Chief
Executive Officer of Freightliner to serve as a Class B director
until the next succeeding Annual Meeting of Stockholders of
Oshkosh or until his successor shall have been elected and
qualified and shall use its best efforts to cause him to be
elected.
SECTION 6.5 Standstill Restrictions. Except as otherwise
contemplated or required by this Alliance Agreement, from the date hereof
through the expiration of the Alliance Period, Freightliner shall not, and
shall not permit any of its Subsidiaries to:
(a) in any manner acquire, agree to acquire, make any proposal
to acquire or announce or disclose any intention to make a proposal to
acquire, directly or indirectly, all or any significant portion of the
assets of Oshkosh or any Voting Stock except that Freightliner or its
Subsidiaries may acquire beneficial ownership of Voting Stock if, after
giving effect to such acquisition, Freightliner, its Subsidiaries and its
Affiliates would beneficially own Voting Stock not in excess of the
Standstill Percentage;
(b) propose to enter into, or announce or disclose any
intention to propose to enter into, directly or indirectly, any merger or
business combination involving Oshkosh or any of its Subsidiaries or to
purchase, directly or indirectly, a material portion of the assets of the
Company;
(c) make, or in any way participate, directly or indirectly, in
any "solicitation" of "proxies" (as such terms are defined or used in
Regulation 14A of the Exchange Act) to vote, or seek to advise or
influence any person with respect to the voting of, any Voting Stock, or
become a "participant" in any "election contest" (as such terms are used
or defined in Regulation 14A of the Exchange Act) relating to the election
of directors of Oshkosh; provided, however, that Freightliner shall not be
deemed to have engaged in a "solicitation" or to have become a
"participant" by reason of the presence of the Freightliner Director on
the Board of Directors of Oshkosh or by reason of its voting its Voting
Stock in any such election or by reason of Oshkosh's solicitation of
proxies in connection with any annual or special meeting of stockholders
of Oshkosh;
(d) form, join or in any way participate in a "group" (as
defined in Section 13(d)(3) of the Exchange Act) or otherwise act in
concert with any Person (i) for the purpose of circumventing the
provisions of this Section 6.5, or (ii) other than Freightliner and its
Affiliates, for the purpose of acquiring, holding, voting or disposing of
any Voting Stock; or
(e) deposit any Voting Stock in a voting trust or subject any
Voting Stock to a voting or similar agreement.
Notwithstanding the foregoing, Freightliner shall not be obligated to
dispose of any shares of Voting Stock if its beneficial ownership
percentage of outstanding Voting Stock is increased as a result of a
recapitalization of Oshkosh or a repurchase of securities by Oshkosh or
any other action taken by Oshkosh or its Subsidiaries.
SECTION 6.6 Restrictions on Transfers of Voting Stock. At any
time prior to the delivery of a Termination Notice pursuant to Section
9.2, neither Freightliner nor any of its Subsidiaries shall, directly or
indirectly, sell, dispose of or otherwise transfer any Voting Stock or
Warrants, except:
(a) to Oshkosh or any Person or group approved by Oshkosh;
(b) to Freightliner or any of its Subsidiaries which
agrees to be bound by this Section 6.6;
(c) pursuant to a merger or consolidation of Oshkosh or
pursuant to a plan of liquidation of Oshkosh, in each case which
has been approved by the Board of Directors of Oshkosh;
(d) in response to a tender or exchange offer made in
accordance with Regulation 14D of the Exchange Act; provided
that no tender of Voting Stock is made prior to two Business
Days before the scheduled expiration of the tender or exchange
offer;
(e) at any time following a Change in Control of Oshkosh,
in accordance with the procedures set forth in Section 6.7; and
(f) at any time following the occurrence of a Business
Deadlock, in accordance with the procedures set forth in Section
6.7.
SECTION 6.7 Rights of First Refusal; Restrictions on Transfer.
(a) If, in reliance on clause (e) or (f) of Section 6.6,
Freightliner or one of its Subsidiaries desires to dispose, in a bona fide
third party transaction, of all or any of its Voting Stock or Warrants
pursuant to a written offer received from a third party proposing to
purchase such shares (such offer hereinafter referred to as the "Offer"
and such third party as the "Offeror"), Freightliner shall give written
notice (the "Notice") to Oshkosh of the terms and conditions of such Offer
and shall deliver a copy of the Offer to Oshkosh. Oshkosh shall have the
option (the "Right of First Refusal"), but not the obligation, exercisable
for not more than 15 Business Days from the date that Oshkosh receives the
Notice, to purchase all, but not less than all, of the Voting Stock or
Warrants, or both, for which the Offer was made at the price and upon the
same terms and conditions set forth in the Offer or, in the case of non-
cash consideration, the cash equivalent thereof. (Freightliner and
Oshkosh are sometimes referred to in this Section 6.7 individually as a
"Party" and collectively as the "Parties.")
(b) If, for any reason, Oshkosh fails to exercise the Right of
First Refusal within the applicable exercise period, no subsequent
exercise thereof shall be effected, and Freightliner or its Subsidiary
shall have the right for a period of 60 days following the expiration of
the Right of First Refusal, to sell its Voting Stock or Warrants, or both,
that are the subject of the Notice, free and clear of the restrictions or
limitations of this Alliance Agreement in a bona fide transaction or
transactions; provided, however, that such sale may only be made to the
Offeror on the same or more favorable terms and conditions as the terms
and conditions of the Offer or to a third party on more favorable terms
and conditions than the terms and conditions of the Offer. If any Voting
Stock or Warrants are not sold pursuant to the provisions of this
paragraph prior to the expiration of the 60 day period specified herein,
such Voting Stock or Warrants, or both, shall become subject once again to
the provisions and restrictions hereof.
(c) If, in reliance on clause (e) or (f) of Section 6.6,
Freightliner or one of it Subsidiaries exercises its right to demand
registration of Voting Stock as provided in Annex C or otherwise proposes
to sell shares of Class B Common Stock through the National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or such
other national securities exchange on which such stock is then listed and
sold, it shall give the notice required in Annex C that it otherwise is
proposing to sell a specified amount of Voting Stock through NASDAQ or
such other exchange and for all purposes of this Section 6.7 any such
notice shall be deemed a Notice of an Offer to purchase the number of
shares specified in the Notice for cash at a per share price equal to the
Market Price. As used herein, the "Market Price" means the average of the
daily closing prices per share of Class B Common Stock for the 20
consecutive trading days preceding the date on which the Notice was sent
on which the Common Stock actually traded as reported by the NASDAQ or
such other exchange. In the event that Oshkosh fails to exercise its
Right of First Refusal on shares of Class B Common Stock proposed to be
sold by Freightliner or one of its Subsidiaries through NASDAQ or such
other exchange within 10 days of the date of such Notice of an Offer,
Freightliner or such Subsidiary shall have the right to sell such shares
through NASDAQ or such other exchange during the 60 day period
contemplated by paragraph (b) without reference to the provisory clause in
the first sentence of such paragraph unless such sale is being made
pursuant to a registration statement in which event such 60 day period
shall not be deemed to commence until the registration statement covering
such shares is effective.
(d) The exercise of a Right of First Refusal shall be effected
only by giving notice (the "Exercise Notice") to Freightliner not later
than the close of business on the last date set forth herein for the
exercise thereof, if any, setting forth the election to exercise such
Right of First Refusal. The Exercise Notice shall also specify the date
on which the closing of the transaction will take place, which shall be
not less than 10 nor more than 15 days after the date of the Exercise
Notice or, if the Offer specified a date for closing, such specified date.
(e) The closing of any transaction resulting from the exercise
of a Right of First Refusal (hereinafter the "First Refusal Closing")
shall take place at the offices of Freightliner. At any First Refusal
Closing, subject to the conditions herein set forth, the certificates
representing the shares being purchased shall be delivered, free and clear
of any Encumbrances whether or not noted thereon, duly endorsed for
transfer with signatures guaranteed by a commercial bank or a member of
the New York Stock Exchange, and accompanied by any required transfer tax
stamps, against payment of the aggregate purchase price for such shares by
wire transfer of immediately available funds or by certified or official
bank check payable to the direct order of Freightliner or its Subsidiary,
as the case may be.
(f) If a Right of First Refusal is not exercised within the
period of time set forth herein for its exercise, such Right of First
Refusal shall lapse and shall be null and void and no Party shall have any
further rights or obligations thereunder. Time is of the essence with
respect to all time periods prescribed in this Section 6.7.
(g) Certificates representing the Shares, the Warrants and, if
the Warrants are exercised in accordance with their terms, the Warrant
Shares shall bear an appropriate legend to the effect that such securities
may only be transferred in accordance with this Alliance Agreement.
SECTION 6.8 Registration Rights. Subject to the provisions of
Sections 6.6 and 6.7, Oshkosh shall make available to Freightliner and any
of its Subsidiaries registration rights in accordance with the provisions
of Annex C which is attached hereto and incorporated herein by reference.
SECTION 6.9 Consents. Each of the parties hereto shall use its
commercially reasonable best efforts to obtain consents of all Persons and
Governmental Bodies necessary to the consummation of the transactions
contemplated by this Agreement.
SECTION 6.10 Certain Filings. Freightliner and Oshkosh will
file or cause to be filed with the United States Federal Trade Commission
(the "FTC") and the Antitrust Division of the United States Department of
Justice (the "Department of Justice") pursuant to the Hart-Scott Rodino
Act all requisite documents and notifications in connection with the
transactions contemplated hereby and will use their respective best
efforts to insure that the applicable waiting period under the Hart-Scott-
Rodino Act expires or is terminated as soon as is reasonably possible.
Each of Freightliner and Oshkosh will make or cause to be made all such
other filings and submissions under laws and regulations that may be
applicable to each of them, respectively, if any, as may be required for
each of them, respectively, to consummate the transactions contemplated by
this Agreement. Freightliner and Oshkosh will cooperate and coordinate
with one another in exchanging such information and assistance as the
other may request in connection with all of the foregoing.
SECTION 6.11 Notices of Certain Events. Prior to the Closing
each of Freightliner and Oshkosh shall promptly notify the other of its
receipt or discovery of:
(a) any notice or other communication from any Person
alleging that the consent of such Person is or may be required
in connection with the transactions contemplated by this
Alliance Agreement;
(b) any notice or other communication from any
Governmental Body in connection with the transactions
contemplated by this Alliance Agreement;
(c) the occurrence, or non-occurrence, of any event the
occurrence, or non-occurrence, of which would be likely to cause
(x) any representation or warranty contained in this Alliance
Agreement to be untrue or inaccurate or (y) any covenant,
condition or agreement contained in this Agreement not to be
complied with or satisfied in all material respects; and
(d) any failure of either party to comply with or satisfy
in all material respects any covenant, condition or agreement to
be complied with or satisfied by such party hereunder;
provided, however, that the delivery of any notice pursuant to this
Section 6.11 shall not limit or otherwise affect the remedies available
hereunder to the party entitled to receipt of such notice.
SECTION 6.12 Further Assurances. Upon the terms and subject to
the conditions hereof, each of the parties hereto shall (except as
otherwise required by law) use all reasonable efforts to take, or cause to
be taken, all actions and to do, or cause to be done, all other things
necessary, proper or advisable to consummate and make effective as
promptly as practicable the transactions contemplated by this Agreement
and to obtain in a timely manner all necessary waivers, consents and
approvals. From time to time after the Closing Date, without further
consideration from the other party, each of Freightliner and Oshkosh will
at their own expense execute and deliver such other and further documents
as the other may reasonably request in order more effectively to
consummate and complete the transactions contemplated hereby.
SECTION 6.13 Public Announcements. Prior to the Closing
neither Freightliner nor Oshkosh shall issue any press release or
otherwise make any public statement with respect to any of the
transactions contemplated by this Alliance Agreement without the prior
written consent of the other party hereto, except as may be required by
applicable law.
SECTION 6.14 Other Offers. From the date hereof until the
earlier of the termination of this Alliance Agreement and the Closing
Date, neither Oshkosh nor any officer, director, employee or other agent
of Oshkosh will, directly or indirectly, (i) take any action to solicit,
initiate or encourage any inquiries or the making or implementation of any
proposal or offer with respect to a merger, acquisition, consolidation or
similar transaction involving, or any purchase of all or any significant
portion of the assets or any equity securities of, Oshkosh or any of its
Subsidiaries (a "Company Acquisition Proposal"), other than the
transactions contemplated by this Alliance Agreement and the Asset
Purchase Agreement, or (ii) engage in negotiations with, or disclose any
nonpublic information relating to the Company or afford access to the
properties, books or records of Oshkosh or any of its Subsidiaries to, any
Person that Oshkosh believes may be considering making, or has made, a
Company Acquisition Proposal. Oshkosh will promptly notify Freightliner
upon receipt of any Company Acquisition Proposal or any indication that
any Person is considering making a Company Acquisition Proposal or any
request for nonpublic information relating to the Company or for access to
the properties, books or records of Oshkosh or any of its Subsidiaries by
any Person that may be considering making, or has made, a Company
Acquisition Proposal and will keep Freightliner fully informed of the
status and details of any such Company Acquisition Proposal, indication or
request.
ARTICLE VII
ALLIANCE COVENANTS
SECTION 7.1 Purpose. Freightliner and Oshkosh will jointly
collaborate and mutually assist one another as provided hereunder (the
"Alliance") for the purpose of (i) jointly continuing, developing and
expanding their pursuit of the Class 8 vocational (construction, refuse
and fire) and on/off highway and specialty heavy vehicle markets, (ii)
jointly pursuing and expanding Oshkosh's components offering to the market
(such as independent suspension, all wheel drive and all wheel steer) and
(iii) jointly pursuing and expanding the parties' respective government
businesses, principally sales to the United States Department of Defense
("DOD"). The Alliance will consist of joint efforts in the following six
major areas: (1) transfer of Freightliner's non-commercial DOD business
to Oshkosh; (2) utilization of Freightliner's dealer network and sales and
marketing distribution system to distribute selected Oshkosh products; (3)
design and development work on the Oshkosh F-Series and J-Series on/off
highway haulers, including integration of Freightliner cabs; (4)
distribution of Oshkosh and Freightliner products in international markets
other than Canada and Mexico on a case-by-case basis through the
distribution channels of Oshkosh, Freightliner and, if appropriate,
Mercedes-Benz; (5) design and development work preparatory for Oshkosh
assembly of all wheel drive vehicles, all wheel steer vehicles, twin steer
vehicles and body installation of rear discharge mixers and snow plows
using Freightliner's "SD Trucks," and (6) joint truck component
development and introduction of each company's components into the other's
products.
SECTION 7.2 Non-Commercial DOD Business. (a) Freightliner
will transfer its non-commercial DOD business (which consists of
Freightliner's severe duty truck models M915, M916 and M917, together with
all extensions, derivatives or remanufacture of those models and any new
models equal to or exceeding the gross vehicle weight of those models) to
Oshkosh and will cooperate in transferring to Oshkosh, through novation,
assignment or other means, any prime contract awarded to Freightliner
based on Solicitation No. DAAEO7-95-R-R020. The term "DOD" shall be
deemed to include sales for national guard or military reserve units. In
addition, the FMTV and other projects may be jointly pursued by the
parties.
(b) Oshkosh will assume primary responsibility for assembly of
the 915, 916 and 917 products for the non-commercial DOD business.
Freightliner will supply Oshkosh with cabs and other components at a unit
price to be negotiated. Freightliner will be responsible for Freightliner
designs and third party liability arising out of such designs. Oshkosh
will be responsible for third party liability arising out of permissible
Oshkosh modifications of Freightliner designs. Freightliner will promptly
notify Oshkosh of all design changes for the commercial models on which
the M915 series trucks are based.
(c) Freightliner will rely on Oshkosh to develop and grow this
business as the heavy truck specialist to the DOD and international
customers. Oshkosh will seek Freightliner counsel on new defense business
opportunities and will utilitze Freighliner designs and components to the
extent feasible in this special market niche.
(d) Aftermarket service for vehicles sold in the non-commercial
DOD business shall be the responsibility of Oshkosh, with such support and
assistance as it may reasonably request from time to time from
Freightliner. Aftermarket service, parts sales and distribution will be
reviewed by the parties with a view toward best meeting the needs of the
parties and their customers.
(e) Freightliner and Oshkosh will use their respective best
efforts to insure a smooth, efficient and expeditious transition of
responsibilities in this business, having due regard for the needs and
wishes of the DOD as the customer.
(f) Except as otherwise provided herein, this segment of the
Alliance will not affect either party's commercial business with other
agencies of the U.S. government, the states and any municipalities, except
that each party will use its best efforts to make known to the other any
opportunities in those areas which present the potential for increased
business and will provide such support and assistance in pursuing such
business as the other may reasonably request. In accordance with the
foregoing, Oshkosh will use its best efforts to assist Freightliner with
maximizing Freightliner's sales to the General Services Administration.
(g) The parties will jointly determine, on a country-by-country
basis, the optimum profile of their cooperation to maximize sales of
commercial and non-commercial trucks and spare parts to foreign
governmental customers.
SECTION 7.3 Front Discharge Concrete Truck. (a) Oshkosh will
continue manufacturing and assembling its S-series front discharge
concrete truck, including the mixer barrel which is also manufactured and
installed by Oshkosh. Design, engineering and product development
relating to this product will continue to be the responsibility of
Oshkosh.
(b) Freightliner will assume responsibility for marketing,
sales, distribution and customer support following a transition process
mutually agreed upon. "Customer support", where used in this Alliance
Agreement, shall include aftermarket service (including warranty
administration) and parts sales.
(c) This product will continue to be an Oshkosh branded
product.
SECTION 7.4 Oshkosh Refuse Products. (a) Oshkosh will
continue manufacturing and assembling its refuse collection product line.
Design, engineering and product development relating to this product will
continue to be the responsibility of Oshkosh. Oshkosh and Freightliner
will jointly pursue design improvements and cost and weight reduction
opportunities for these products. If, as or when Freightliner may have
relevant information for such design, engineering or product development,
it will promptly advise Oshkosh of such information.
(b) Freightliner will assume responsibility for marketing,
sales, distribution and customer support following a transition process
mutually agreed upon.
(c) These products will continue to be Oshkosh branded
products.
SECTION 7.5 On/Off Highway Haulers (F and J Series). (a)
Freightliner and Oshkosh will promptly form a joint team with relevant
experience and expertise which will be assigned the tasks of lowering the
weight and cost of the Oshkosh F-Series on/off highway haulers and of
integrating Freightliner designed and manufactured cabs into the design of
these products.
(b) Promptly following completion of the tasks described in
paragraph (a), and if feasible, Oshkosh shall commence manufacturing and
assembling the F-Series on/off highway haulers utilizing Freightliner
produced cabs. Freightliner shall produce and sell such cabs to Oshkosh
for use in the F-Series on/off highway haulers. For the long term,
design, engineering and product development relating to this product will
continue to be the responsibility of Oshkosh.
(c) Freightliner will assume responsibility for marketing,
sales, distribution and customer support, following a transition process
mutually agreed upon.
(d) This product will continue to be an Oshkosh branded product
unless the parties otherwise agree.
(e) In the event an active market develops for the J-Series,
Oshkosh and Freightliner will discuss a similar program as that developed
for the F-Series.
SECTION 7.6 Integrated Rear Discharge Concrete Truck Mixer.
(a) Freightliner and Oshkosh will jointly offer the market fully
integrated rear discharge concrete trucks and mixers consisting of Oshkosh
assembled Freightliner SD Trucks (the FLD 112 SD and FLD 120 SD 6x6 and
6x4 models) with Oshkosh mixer systems installed thereon. Oshkosh will
provide for the requirements of Freightliner for such systems on a
preferred basis.
(b) Oshkosh will be responsible for assembling this product in
its facilities. Freightliner will provide Oshkosh with fully trimmed cabs
and piece parts for Oshkosh assembly.
(c) Freightliner will assume responsibility for marketing and
sales, distribution and customer support.
(d) The concrete truck will bear the Freightliner name, and the
Oshkosh mixer system will bear the Oshkosh name.
SECTION 7.7 Twin Steer Trucks.
(a) Oshkosh will assume responsibility for assembling
Freightliner FLD and FLB twin steer (two steerable front axles) trucks
according to Freightliner designs.
(b) Oshkosh will be responsible for assembling this product in
its facilities. Freightliner will provide Oshkosh with fully trimmed cabs
and piece parts for Oshkosh assembly.
(c) Freightliner will continue to have responsibility for
marketing and sales, distribution and customer support.
SECTION 7.8 All Wheel Drive Trucks.
(a) Oshkosh will lead the joint design and development of an
all wheel drive design for Freightliner's FLD models.
(b) Oshkosh will be responsible for assembling this product in
its facilities. Freightliner will provide Oshkosh with fully trimmed cabs
and piece parts for Oshkosh assembly.
(c) Freightliner will assume responsibility for marketing and
sales, distribution and customer support.
SECTION 7.9 Oshkosh Snow Removal and ARFF Trucks. (a) Oshkosh
will retain complete responsibility for design, development, manufacture,
marketing and sales, distribution and customer support with respect to its
specialized airport snow removal trucks and airport Aircraft Rescue Fire
Fighting (ARFF) trucks.
(b) Freightliner shall use its best efforts to cause its dealer
network and sales and marketing distribution system to provide such
distribution and product support for these Oshkosh products as Oshkosh may
from time to time reasonably request.
(c) Freightliner will assume responsibility for marketing,
sales, distribution and customer support for Oshkosh non-airport snow
removal trucks, following a transition process mutually agreed upon.
Oshkosh will retain responsibility for manufacture, design, engineering
and product development relating to this product and Freightliner will
advise Oshkosh of relevant design, engineering and product development
information of which it may become aware from time to time.
(d) These products will continue to be Oshkosh branded
products.
SECTION 7.10 Unimog. (a) Oshkosh will pursue discussions with
representatives of Mercedes-Benz to be facilitated by Freightliner.
Subject to business review and feasibility studies by the parties which
conclude that the effort will be mutually beneficial, with the approval of
Mercedes-Benz, Oshkosh will undertake a design and engineering effort to
modify Mercedes-Benz's Unimog product so that it more closely and
adequately meets the requirements of the North American market.
(b) Following agreement and completion of the project
contemplated by paragraph (a), the parties intend that Oshkosh would
assume responsibility for manufacturing the Unimog, as redesigned, for all
North American sales of the product at a unit price and upon terms and
conditions to be agreed upon by the parties and Mercedes-Benz.
(c) Oshkosh will be responsible for all North American U.S.
governmental and military sales of the redesigned product. Freightliner
would be responsible for all other North American distribution of the
Unimog. Customer support shall be as determined jointly by the parties.
(d) The brand name of this product will be determined by the
parties.
SECTION 7.11 Components. (a) Freightliner and Oshkosh will
promptly form a joint team with relevant experience and expertise which
will be assigned the tasks of exploring the development and manufacture of
axles and suspension systems and, in particular, the feasibility of a new
heavy-duty independent suspension and drive system that could be used for
heavy on/off road trucks of 46,000 pounds and greater rear tandem
capacity. If such a system is feasible based on the best technology of
Freightliner and Oshkosh, the parties will pursue the development and
manufacture of such a system, with Oshkosh taking the lead responsibility
for the project.
(b) Oshkosh will continue to engineer and assemble its current
products utilizing the Oshkosh all wheel drive and all wheel steer
components. Oshkosh will purchase cabs, fabrications, suspension systems
and chassis mounting hardware from Freightliner for inclusion in these
products to the extent that such components are competitive with
alternative sources in cost, quality and delivery.
(c) Freightliner will purchase drive/steer axles, transfer
cases, central tire inflation systems, ALL STEER/TM/ systems, independent
suspensions and other component systems from Oshkosh to the extent that
such components are competitive with alternative sources in cost, quality
and delivery.
SECTION 7.12 Sourcing Coordination. Freightliner and Oshkosh
will coordinate their purchasing programs so as to rationalize suppliers
with whom they do business, maximize common supplier purchasing in order
to achieve maximum volume discounts, maximize utilization of supplier
engineering resources and generally to insure that they are achieving the
lowest possible supplier costs that may be achievable by or available to
either of them. Each party will use its reasonable best efforts to
provide the other with access to its suppliers for products purchased by
the other party. Oshkosh and Freightliner will review their coordinated
purchasing activities on a regular periodic basis.
SECTION 7.13 Protection of Intellectual Property Interests.
Freightliner and Oshkosh shall enter into such patent, trade secret,
trademark, tradename and other protected intellectual property
nonexclusive, royalty-free licenses as needed to cover the parties'
respective intellectual property being utilized by one or the other in the
pursuit of the Alliance. Such licenses shall contain all reasonable
provisions necessary to assure that the party with a protectible interest
in any intellectual property being used in the Alliance will not lose such
interest or otherwise have it diluted or diminished. With respect to
trade secrets, the parties will enter into an appropriate protective non-
disclosure agreement.
SECTION 7.14 Pricing. Oshkosh and Freightliner will jointly
develop pricing methodologies between the two companies for products
(including spare parts support) discussed in Sections 7.2 , 7.3, 7.4, 7.5,
7.6, 7.7, 7.8, 7.9 and 7.11 of this Article VII. Distinct value-based
methodologies shall be used with respect to each product and related
parts.
SECTION 7.15 Systems Integration. Through the Management
Information Systems Functional Committee contemplated by Section 8.2(a)
hereof, Oshkosh and Freightliner will establish a joint team to formulate
detailed proposals for most efficiently supporting the manufacturing and
distribution objectives of this Alliance Agreement. These systems
encompass at least the following: sales, marketing, engineering,
manufacturing, finance, purchasing, warranty, materials, spare parts and
dealer systems.
SECTION 7.16 Sales and Parts Distribution Transition.
(a) The parties will evaluate the best use of current Oshkosh
and Freightliner parts distribution centers and regional service centers
based on the support needs for the products to be distributed under this
Alliance Agreement. The parties will use their best efforts to ensure a
smooth and efficient transition of any parts distribution so as to
minimize the disruption to customers.
(b) Oshkosh and Freightliner will jointly develop a reasonable
transition plan, with respect to each of the products to be distributed by
Freightliner, for transferring distribution from Oshkosh dealers and the
current Oshkosh direct sales division to authorized Freightliner dealers.
Communication to existing Oshkosh dealers and to potential Freightliner
dealers shall be coordinated in order to preserve dealer and customer good
will and a continuity and positive image in the market for the respective
products. The parties acknowledge that transition planning must take into
account contractual, legal and ethical obligations to their existing
dealers and customers. Oshkosh's dealers and direct sales accounts are
listed in Tables 1 and 2, respectively, are attached to and incorporated
into this Alliance Agreement. Also, in the transition planning, the issue
of Oshkosh's lost vendor (all makes) parts sales will be addressed by the
Customer Support Committee in order to appropriately compensate Oshkosh,
and the resolution of this issue will be subsequently approved by the EAB.
SECTION 7.17 Continuity of Sourcing. Since Oshkosh will make
significant facility investments for improved productivity and paint
quality to accommodate assembly of the Freightliner products, both parties
agree that Freightliner products transferred to Oshkosh for assembly or
manufacture will not be withdrawn by Freightliner during the Alliance
period unless mutually agreed as long as Oshkosh meets Freightliner's
quality, delivery, and contract price requirements. Further, Oshkosh will
not refuse to assemble trucks that the company has contracted to produce
during the term of the Alliance. Further, each company will consider the
other a preferred supplier and assembler for those products that are
within each company's competence and capacity.
ARTICLE VIII
ORGANIZATION AND MANAGEMENT OF ALLIANCE
SECTION 8.1 Executive Advisory Board.
(a) Composition. Promptly following the Closing Date an
executive advisory board (the "Executive Advisory Board" or "EAB") shall
be established to manage and direct the overall activities and direction
of the Alliance. The EAB shall consist of an equal number of
representatives from Freightliner and Oshkosh (each, a "Member") who shall
be designated by each to the other in writing and who shall be senior
management personnel or of comparable responsibility and authority with
Freightliner and Oshkosh, respectively.
(b) Responsibilities; Authority. The Executive Advisory Board
shall have responsibility for the management and coordination of the
Alliance. It shall not have the right or authority to prevent or
otherwise impede either party from making its own corporate decisions
regarding internal policies and actions; provided, however, that if such
decision would affect the Alliance in any material way, the parties must
inform one another and discuss the consequence; and provided, further that
each party may be required to consult with their respective Chief
Executive Officers or Boards of Directors for review or approval dependent
on the strategic implication on capital or resource commitments prior to
reaching a decision. Subject to the preceding sentence, the Executive
Advisory Board shall have full power and decision-making authority with
respect to the following overall Alliance policies, decisions and actions:
(i) Alliance product strategy;
(ii) Alliance engineering, manufacturing and service
activities;
(iii) Alliance sales and marketing efforts and
coordination;
(iv) Changes (by way of expansion or contraction) in the
scope of the Alliance;
(v) Resolution of issues and questions for decision
referred to the EAB by the Functional Committees (as hereinafter
defined);
(vi) Confidentiality issues;
(vii) Any other Alliance matters specifically provided
in this Alliance Agreement or otherwise referred to the EAB
jointly by the parties; and
(viii) It is a primary responsibility of the EAB to
develop a formal and seamless process for each of the commercial
products delineated initially in ARTICLE VII (or added in the
future) that (1) meets customer needs, (2) evolves the product,
service, and support to meet changing market requirements, (3)
incorporates new technology, (4) meets appropriate safety,
quality, and reliability standards, (5) resolves cost, service,
and quality issues promptly, and (6) utilizes the supply base
and distribution system effectively. The basic purpose of this
process is to ensure that each product leads in its market
segment. Extra attention will be given to the development and
monitoring of this process by the EAB since the product
responsibilities are joint between two parties separated by both
distance and experience.
The product activities between the two companies should be
coordinated as well or better than they are in either company
alone. These processes will be developed jointly for each
product and market by the Oshkosh designated product manager and
the appropriate vocational manager at Freightliner with support
from the functional committees listed below. The processes will
be approved by the EAB. Most of the important activity of the
EAB will be monitoring these processes and judging whether they
are successful in meeting the objectives of market leadership
and increased returns to both companies. Development of these
processes will rely on the internal procedures of Oshkosh and
Freightliner to the extent feasible. These processes should
encompass the total quality focus of ISO 9001 or a similar total
quality system. To the extent feasible, the process will be
similar for all joint alliance products and projects.
(c) Co-Chairmen. Each party shall be entitled to designate a
Co-Chairman of the Executive Advisory Board (the "Co-Chairman").
(d) Meetings. The Executive Advisory Board shall hold at least
four meetings in the first year and thereafter at least two meetings per
year. Any meeting of the Executive Advisory Board may be called by the
Co-Chairmen or any other two Members upon not less than fourteen days
prior written notice given to all the Members setting forth the date,
time, place and agenda for the meeting. The place of the meetings shall
rotate between the principal executive offices of the parties. A quorum
for the conduct of business of the EAB at any meeting shall be a majority
of the Members; provided at least one representative of each party is in
attendance.
(e) Removal; Vacancies. Each party shall be entitled to remove
any Member designated by such party (including, if applicable, the Co-
Chairman) at any time and for any reason. Such removal shall be
immediately effective upon notice thereof to the other party, and no
action thereafter taken by such Member (including, if applicable, in his
capacity as Co-Chairman) so removed shall have any force or effect. If a
Member is so removed, or a Member resigns, dies or ceases for any other
reason to function as a Member (including, if applicable, as Co-Chairman),
the party which designated such Member shall be entitled to designate a
replacement for such Member (including, if applicable, the Co-Chairman.
(f) Action by the Executive Advisory Board. The Executive
Advisory Board may take action only by a unanimous vote at a duly convened
meeting or by a written action signed by all Members. Actions of the
Executive Advisory Board shall be binding upon the parties with respect to
their respective obligations and responsibilities under this Alliance
Agreement, except where approval of the Board of Directors or Chief
Executive Officer may be required, in which event each party shall be
obligated to obtain such approval prior to the meeting of the EAB at which
such decision will be considered.
(g) Other Governing Procedures. Other governing procedures
with respect to the EAB which are not set forth herein shall be
established by the EAB.
SECTION 8.2 Functional and Ad-Hoc Committees.
(a) Functional Areas; Composition. Six functional committees
(the "Functional Committees") shall be established, one for each of the
following functional areas:
(i) Sales, Marketing and Distribution;
(ii) Product Development and Engineering;
(iii) Manufacturing, Purchasing and Quality Assurance;
(iv) Customer Support activities (including product
support, warranty administration, customer service and spare
parts);
(v) Management information systems; and
(vi) Defense business.
In addition, the Executive Advisory Board may establish such additional
ad-hoc committees as it deems necessary or appropriate ("Ad-Hoc
Committees") and may terminate or amend the responsibilities of any
Functional Committee. Each of Freightliner and Oshkosh shall designate in
writing individuals to serve as members of each Functional Committee,
which shall be managerial employees with responsibility within
Freightliner or Oshkosh, respectively, for the specific functional area
for which such Functional Committee is responsible. Any Ad-Hoc or
Functional Committee shall be comprised of such members as the EAB shall
determine, but not less than two, with an equal number designated by each
party.
(b) Responsibilities; Authority. The Functional Committees
shall have responsibility for coordination of the broad, overall
activities of the Alliance within their respective functional areas and
for the continuing review and adjustment of the progress of the Alliance
in such area. The Functional Committees shall have management and
decision-making power and authority regarding all matters specific to
their respective general functional areas. Ad-Hoc Committees shall have
such responsibility and authority as is conferred on them by the Executive
Advisory Board.
(c) Committee Action; Executive Advisory Board Review. A
Functional Committee may take action only by a unanimous vote at a duly
convened meeting, or by a written action signed by all the members of such
Functional Committee. A quorum for the conduct of business of any
Functional Committee at any meeting shall be a majority of the Members;
provided at least one representative of each party is in attendance.
Actions of any Functional Committee shall be binding upon the parties with
respect to their respective obligations under this Alliance Agreement.
The procedures for taking action by any Ad-Hoc Committee shall be
determined by the EAB at the time of creation of such Ad-Hoc Committee and
shall be binding upon the parties. If, after due consideration of a
matter, the members of a Functional Committee or Ad-Hoc Committee are
unable to reach a consensus with respect to such matter, the matter may be
referred to the Executive Advisory Board by any member of such Functional
Committee or Ad-Hoc Committee.
(d) Other Functional Committee Governing Procedures. Other
governing procedures with respect to any Functional Committee not set
forth herein shall be established by such Functional Committee.
(e) Additional Defense Opportunities. The Defense Committee
and, if needed, the EAB, will discuss all non-commercial defense
opportunities for vehicle sales of GVW rating lower than the heavy truck
category in order to determine whether it is advantageous for the parties
to jointly pursue any of these opportunities.
SECTION 8.3 Seconded Representatives. In order to better
facilitate the implementation of the Alliance and the coordination of
Alliance activities, a reasonable number of personnel from each party may
be sent to and located at the other party's facilities. Each party agrees
to provide (at its own expense) adequate office facilities and office
support for such personnel sent by the other party. All other costs
associated with such personnel shall be borne by the party sending such
personnel.
SECTION 8.4 Consultation Procedures. Whenever in Article VII
a party (the "Consulting Party") is required to "consult" with the other
party (the "Consulted Party") with respect to a particular matter or
decision, the Consulting Party shall, at a minimum, afford the Consulted
Party, as and to the extent required by this Section 8.4, opportunities
for substantive input into the matter or decision in question prior to any
resolution of such matter or the making of such decision by the Consulting
Party.
(a) Decision Notice. The Consulting Party shall normally
give the Consulted Party written notice of the matter or decision with
respect to which the Consulted Party is being consulted (the "Decision
Notice"). The Decision Notice shall state the Consulting Party's
preliminary or tentative position or decision and explain in reasonable
detail the various factors it believes to be relevant or decisive in
reaching its preliminary position or decision. If the circumstances make
delivery of the Decision Notice in writing impracticable, such notice may
be delivered telephonically, but in any event shall be given a reasonable
period of time prior to the date the matter is finally resolved or the
decision made.
(b) Discussion Opportunity. The Consulted Party shall
have a reasonable period of time after receiving the Decision Notice to
reply thereto (in writing if it so elects). If after such reply a
mutually agreeable resolution or decision is not promptly reached, the
Consulting Party shall afford the Consulted Party prior to a final
resolution or decision, a reasonable opportunity to meet with the
Consulting Party to discuss the particular matter or decision.
(c) Good Faith. The parties understand and agree that the
foregoing consultation procedures shall be conducted in good faith,
consistent with the cooperative principles set forth in this Alliance
Agreement, having due regard for the particular individual interests of
each party.
SECTION 8.5 Dispute Resolution; Deadlock. The parties will
endeavor in good faith to resolve mutually any dispute between them
involving the interpretation, application or performance of Article VII
and this Article VIII. Any such dispute which cannot be resolved by the
personnel immediately involved shall be referred to the appropriate
Functional Committee for resolution, or if no resolution, for a clear
definition of the issue or issues. The issue or issues so defined shall
then be referred to the EAB for final resolution. The parties will also
endeavor to negotiate and otherwise cooperate in good faith with each
other so that the members will reach unanimity with respect to any matter
considered by the EAB in accordance with this Article. Any dispute
between the Members involving the interpretation, application or
performance of Article VII or this Article VIII which cannot be so finally
resolved, and any matter considered by the EAB in accordance with this
Agreement with respect to which the Members are unable to reach unanimity,
shall be referred to the chief executive officers of Freightliner and
Oshkosh, respectively, for resolution. The two chief executive officers
of Freightliner and Oshkosh must resolve any such dispute within 30 days
in order to preserve the Alliance. If a dispute cannot be resolved in
such manner, the two chief executive officers shall use their best efforts
to devise a strategy to move beyond the dispute to proceed with other
Alliance matters. In such a case the dispute shall be declared unresolved
and tabled.
SECTION 8.6 Annual Review of Alliance. Freightliner and
Oshkosh shall hold an annual review and evaluation of the success,
progress and results of the Alliance for the preceding 12 month period.
To the extent practicable, such review and evaluation shall be conducted
not later than March 31 of each year. Such review shall be conducted
under the leadership and direction of the Executive Advisory Board with
the participation of such Functional Committees and Ad-Hoc Committees as
the Executive Advisory Board shall determine. Such review and evaluation
shall be conducted with reference, among other things, to the objectives
of the parties expressed in their joint incremental sales synergies
objectives for the third year of the Alliance. Such review and evaluation
shall be reflected in an annual report of the results of the Alliance
prepared under the supervision of the EAB, which shall carry the
endorsement of the Executive Advisory Board. Such report shall be
delivered in final form to the parties not later than April 30 of the year
following the year which is being reviewed. Such report shall contain an
affirmative resolution of the Executive Advisory Board to the effect that
the objectives of the parties are under effective pursuit and that the
Alliance continues to be a beneficial endeavor of the parties, or, if the
EAB is unable to make such an affirmative statement, a statement to that
effect.
ARTICLE IX
TERMINATION
SECTION 9.1 Pre-Closing Termination. This Alliance Agreement
may be terminated and the transactions contemplated hereby may be
abandoned at any time prior to the Closing Date:
(a) by mutual written consent of Freightliner and Oshkosh;
(b) by Freightliner or Oshkosh if the Closing has not
occurred by September 30, 1995;
(c) by Freightliner or Oshkosh if there shall be any law
or regulation that makes consummation of the transactions
contemplated hereby illegal or otherwise prohibited or if any
judgment, injunction, order or decree enjoining Freightliner or
Oshkosh from consummating the transactions contemplated hereby
is entered and such judgment, injunction, order or decree shall
become final and nonappealable;
(d) by Freightliner, upon a breach of any representation,
warranty, covenant or agreement on the part of Oshkosh set forth
in this Alliance Agreement, or if any representation or warranty
of Oshkosh shall have become untrue, in either case such that
the conditions set forth in Section 5.2 would be incapable of
being satisfied by September 30, 1995 (or as otherwise
extended); provided that, in any case, a willful breach shall be
deemed to cause such conditions to be incapable of being
satisfied for purposes of this Section 9.1(d); and
(e) by Oshkosh upon a breach of any representation,
warranty, covenant or agreement on the part of Freightliner set
forth in this Alliance Agreement, or if any representation or
warranty of Freightliner shall have become untrue, in either
case such that the conditions set forth in Section 5.3 would be
incapable of being satisfied by September 30, 1995 (or as
otherwise extended); provided that, in any case, a willful
breach shall be deemed to cause such conditions to be incapable
of being satisfied for purposes of this Section 9.1(e).
SECTION 9.2 Post-Closing Termination. Following the Closing
Date, this Alliance Agreement may be terminated and the Alliance
contemplated by Article VII may be abandoned only if during the 90-day
period preceding a Renewal Anniversary (as defined below) either
Freightliner or Oshkosh notifies the other in writing of the notifying
party's election to terminate the Alliance Agreement (a "Termination
Notice"), in which event this Alliance Agreement and the Alliance
contemplated hereby shall expire and be terminated on the second
anniversary of the Renewal Anniversary prior to which the Termination
Notice is given. As used herein, the term Renewal Anniversary means any
anniversary of the Closing Date which follows the Closing Date by a number
of years that is an integral multiple of five.
SECTION 9.3 Effect of Termination. If this Alliance Agreement
is terminated pursuant to either Section 9.1 or Section 9.2, this Alliance
Agreement shall become void and of no effect with no liability on the part
of any party hereto, except that the agreements contained in Sections
6.13, 9.3 and 11.10 shall survive the termination hereof; provided,
however, that nothing herein shall relieve either party from liability for
the willful breach of any of its representations, warranties, covenants or
agreements set forth in this Alliance Agreement.
ARTICLE X
INDEMNIFICATION
SECTION 10.1 Survival. The representations and warranties of
the parties hereto contained in this Alliance Agreement or in any
certificate or other writing delivered pursuant hereto or in connection
herewith shall survive the Closing Date and shall remain in full force and
effect until the second anniversary of the Closing Date. Notwithstanding
the preceding sentence, any representation or warranty in respect of which
indemnity may be sought under Section 10.2 or Section 10.3 shall survive
the time at which it would otherwise terminate pursuant to the preceding
sentence, if notice of the specific inaccuracy or breach thereof giving
rise to such right to indemnity shall have been given to the party against
whom such indemnity may be sought prior to such time.
SECTION 10.2 Indemnification. (a) Oshkosh shall indemnify
Freightliner and its Subsidiaries against, and shall hold them harmless
from and against, any and all damage, loss, liability and expense
(including, without limitation, reasonable expenses of investigation and
reasonable attorneys' fees and expenses in connection with any action,
suit or proceeding) (collectively, "Loss") incurred or suffered by
Freightliner or any of its Subsidiaries arising out of any misrepresen-
tation or breach of warranty made by Oshkosh pursuant to this Alliance
Agreement. No such indemnification obligation shall arise unless the
aggregate amount of such Loss exceeds the sum of $100,000 and a claim
therefor shall have been lodged by Freightliner against Oshkosh within two
years following the Closing Date.
(b) Freightliner shall indemnify Oshkosh and its Subsidiaries
against, and shall hold them harmless from and against, any and all Loss
incurred or suffered by Oshkosh or any of its Subsidiaries arising out of
any misrepresentation or breach of warranty made by Freightliner pursuant
to this Alliance Agreement. No such indemnification obligation shall
arise unless the aggregate amount of such Loss exceeds the sum of $100,000
and a claim therefor shall have been lodged by Oshkosh against
Freightliner within two years following the Closing Date.
SECTION 10.3 Procedures. (a) The party seeking
indemnification under Section 8.2 (the "Indemnified Party") shall give
prompt notice to the party against whom indemnity is sought (the
"Indemnifying Party") of the assertion of any claim, or the commencement
of any suit, action or proceeding in respect of which indemnity may be
sought under such Section. The Indemnifying Party may, and at the request
of the Indemnified Party shall, participate in and control the defense of
any such suit, action or proceeding at its own expense. The Indemnifying
Party shall not be liable under Section 8.2 for any settlement effected
without its consent of any claim, litigation or proceeding in respect of
which indemnity may be sought hereunder; provided that such consent is not
unreasonably withheld.
(b) The Indemnified Party shall cooperate fully in all aspects
of any matter for which indemnity is sought pursuant to this Article VIII
with respect to an action brought by a third party, including, in such
case, by providing reasonable access to employees and officers (as
witnesses or otherwise) and other information.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Amendments; No Waivers. Any provision of this
Agreement may be amended or waived if, and only if, such amendment or
waiver is in writing and signed, in the case of an amendment, by
Freightliner and Oshkosh or in the case of a waiver, by the party against
whom the waiver is to be effective. No failure or delay by any party in
exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 11.2 Entire Agreement; Assignment. This Agreement (a)
constitutes the entire agreement among the parties with respect to the
subject matter hereof, and supersedes all other prior agreements and
understandings, both written and oral, between the parties or any of them
with respect to the subject matter hereof, and (b) shall not be assigned
by operation of law or otherwise, provided that Freightliner may assign
its rights and obligations to any wholly owned Subsidiary of Freightliner,
but no such assignment shall relieve Freightliner of its obligations
hereunder if such assignee does not perform such obligations.
SECTION 11.3 Validity. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement, which shall
remain in full force and effect.
SECTION 11.4 Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given
(and shall be deemed to have been duly given upon receipt) by delivery in
person, by cable, facsimile transmission, telegram or telex, or by regis-
tered or certified mail (postage prepaid, return receipt requested) to the
respective parties as follows:
if to Freightliner, to:
(by hand):
Freightliner Corporation
4747 North Channel Avenue
Portland, Oregon 97217-7699
(by mail):
Freightliner Corporation
P.O. Box 33849
Portland, Oregon 97208-3849
Attention: James T. Hubler, Esq.
General Counsel
Telephone: 503-735-8000
Facsimile: 503-735-8192
with a copy to:
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, NY 10022-9931
Attention: J. Michael Schell
Telephone: 212-735-3150
Facsimile: 212-735-2000
if to Oshkosh, to:
(by hand):
Oshkosh Truck Corporation
2307 Oregon Street
Oshkosh, Wisconsin 54903-2566
(by mail):
Oshkosh Truck Corporation
P.O. Box 2566
Oshkosh, Wisconsin 54903-2566
Attention: R. Eugene Goodson
Chairman and Chief Executive Officer
Telephone: 414-233-9328
Facsimile: 414-233-9624
with copies to:
Dempsey, Magnusen, Williamson & Lampe
One Pearl Avenue
Oshkosh, Wisconsin 54901
Attention: Timothy M. Dempsey
Telephone: 414-235-7300
Facsimile: 414-235-2011
and
Foley & Lardner
Firstar Center
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202-5367
Attention: Michael W. Grebe
Telephone: 414-297-5614
Facsimile: 414-297-4900
or to such other address as the person to whom notice is given has
previously furnished to the others in writing in the manner set forth
above.
SECTION 11.5 Governing Law. Except with respect to those
matters which by statute or the public policy of the State of Wisconsin
must be governed by or construed in accordance with Wisconsin law by
reason of Wisconsin's being Oshkosh's state of incorporation, this
Agreement shall be governed by and construed in accordance with the laws
of the State of Delaware regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
SECTION 11.6 Descriptive Headings. The descriptive headings
herein are inserted for convenience of reference only and are not part of
this Alliance Agreement and shall not affect the meaning or interpretation
of this Alliance Agreement.
SECTION 11.7 Parties in Interest. This Alliance Agreement
shall be binding upon and inure solely to the benefit of Freightliner and
Oshkosh, respectively, and nothing in this Alliance Agreement, express or
implied, is intended to or shall confer upon any other Person or Persons
any rights, benefits or remedies of any nature whatsoever under or by
reason of this Alliance Agreement.
SECTION 11.8 Counterparts. This Alliance Agreement may be
executed in two or more counterparts, each of which shall be deemed to be
an original, but all of which shall constitute one and the same agreement.
SECTION 11.9 Equitable Relief. The parties hereto agree that
irreparable damage would occur in the event of a breach of any of the
provisions of this Agreement and that the parties shall be entitled to
equitable relief, including injunctive relief and specific performance, as
a remedy for any such breach, in addition to any other remedy at law or
equity.
SECTION 11.10 Expenses. Whether or not the transactions
contemplated hereby are consummated, all costs and expenses incurred in
connection with the transactions contemplated by this Alliance Agreement
shall be paid by the party incurring such expenses; provided that
Freightliner and Oshkosh shall share equally the filing fee payable in
respect of the prenotification filing pursuant to the Hart-Scott-Rodino
Act.
IN WITNESS WHEREOF, each of the parties has caused this Alliance
Agreement to be duly executed by their respective officers thereunto duly
authorized, all as of the day and year first above written.
FREIGHTLINER CORPORATION
By: /s/ James L. Hebe
Name: James L. Hebe
Title: President
OSHKOSH TRUCK CORPORATION
By: /s/ Fred S. Schulte
Name: Fred S. Schulte
Title: Chief Financial Officer
ANNEX A
SERIES A WARRANT TO PURCHASE
SHARES OF CLASS B COMMON STOCK
of
OSHKOSH TRUCK CORPORATION
THIS WARRANT WAS ISSUED PURSUANT TO THE ALLIANCE AGREEMENT DATED AS
OF JUNE 2, 1995 (THE "ALLIANCE AGREEMENT"), BETWEEN FREIGHTLINER
CORPORATION AND OSHKOSH TRUCK CORPORATION. NO TRANSFER MAY OCCUR EXCEPT
PURSUANT TO THE TERMS OF THE ALLIANCE AGREEMENT.
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. ACCORDINGLY, THIS WARRANT MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED UNLESS IT IS REGISTERED UNDER THE APPROPRIATE
SECURITIES LAWS OR SUCH OFFER, SALE OR OTHER TRANSFER IS EXEMPT FROM SUCH
REGISTRATION.
No. WA-1 Warrant to Purchase
1,250,000 Class B Common
Shares, par value $.01
per share (subject to
adjustment)
Void after June 2, 2002
For value received, OSHKOSH TRUCK CORPORATION, a Wisconsin
corporation ("Oshkosh"), hereby certifies that FREIGHTLINER CORPORATION,
or registered assigns (the "Holder"), is entitled, subject to the terms
set forth below and to the Alliance Agreement, to purchase from Oshkosh,
1,250,000 shares of Class B Common Stock, par value $.01 per share, of
Oshkosh ("Class B Common Stock"), as constituted on June 2, 1995 (the
"Warrant Issue Date"), on or after the first anniversary of the Warrant
Issue Date and prior to the expiration of this Warrant as provided below,
upon surrender hereof at the principal office of Oshkosh referred to
below, with the Notice of Exercise attached hereto duly executed, and
simultaneous payment therefor in lawful money of the United States as
hereinafter provided at the per share price of $16.50 (the "Exercise
Price"). The number, character and Exercise Price of such shares of Class
B Common Stock are subject to adjustment as provided below. The term
"Warrant" as used herein shall include this Warrant and any warrants
delivered in substitution or exchange therefor as provided herein. This
Warrant is registered and its transfer may be registered upon the books
maintained for that purpose by Oshkosh by delivery of this Warrant duly
endorsed.
Terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Alliance Agreement.
1. Term of Warrant. Subject to the terms and conditions set forth
herein, this Warrant shall be exercisable, in whole or in part, during the
term commencing on June 2, 1996 and ending at 5:00 p.m., Eastern time, on
the date seven years after the Warrant Issue Date, and shall be void
thereafter.
2. Exercise of Warrant.
2.1. Method. The purchase rights represented by this Warrant
are exercisable by the Holder in whole or in part, at any time, or from
time to time, during the term hereof as described in Section 1 above by
the surrender of this Warrant and the Notice of Exercise annexed hereto
duly completed and executed by the Holder at the principal executive
office of Oshkosh at 2307 Oregon Street, Oshkosh, Wisconsin 54903-2566 (or
such other office or agency of Oshkosh as it may designate by notice in
writing to the Holder), upon payment in cash or by wire transfer to a bank
account designated by Oshkosh or by a certified or cashier's check of the
aggregate Exercise Price of the shares to be purchased; provided, however,
that, in lieu of cash, such Holder may pay such Exercise Price by
exchanging shares of Class B Common Stock having an aggregate Market Price
equal to the aggregate Exercise Price or by reducing the number of shares
of Class B Common Stock such Holder would otherwise be entitled to upon
such exercise by a number of shares of Class B Common Stock having an
aggregate Market Price equal to the aggregate Exercise Price.
2.2. Effect. This Warrant shall be deemed to have been
exercised at the time of its surrender for exercise together with full
payment as provided above, and the Person entitled to receive the shares
of Class B Common Stock issuable upon such exercise shall be treated for
all purposes as the holder of record of such shares at and after such
time. As promptly as practicable on or after such date Oshkosh at its
expense shall issue to the Person entitled to receive the same a
certificate for the number of shares of Class B Common Stock issuable upon
such exercise. If this Warrant is exercised in part, Oshkosh at its
expense will execute and deliver a new Warrant exercisable for the number
of shares for which this Warrant may then be exercised. Oshkosh shall not
be required to pay any stamp or other tax or other governmental charge
required to be paid in connection with any transfer involved in the
issuance of Class B Common Stock; and in the event that any such transfer
is involved, Oshkosh shall not be required to issue or deliver any shares
of Class B Common Stock until such tax or other charge shall have been
paid or it has been established to the Company's reasonable satisfaction
that no such tax or other charge is due.
2.3. Holder Not a Shareholder. The Holder shall neither be
entitled to vote nor receive dividends nor be deemed the holder of Class B
Common Stock or any other securities of Oshkosh that may at any time be
issuable on the exercise hereof for any purpose until the Warrant has been
exercised for shares of Class B Common Stock as provided in this Section
2; provided, however, that the Holder shall be treated as the beneficial
owner of the shares issuable upon exercise of the Warrant for purposes of
determining Freightliner's compliance with its commitment to maintain a
beneficial ownership level below the Standstill Percentage.
2.4. No Fractional Shares or Scrip. No fractional shares or
scrip representing fractional shares of Class B Common Stock shall be
issued upon the exercise of this Warrant. In lieu of any fractional share
to which the Holder would otherwise be entitled, Oshkosh shall make a cash
payment equal to the Exercise Price multiplied by such fraction.
3. Registered Warrants.
3.1. Series. This Warrant is one of a series of Warrants,
designated as Series A, which are identical except as to the number of
shares of Class B Common Stock purchasable and as to any restriction on
the transfer thereof in order to comply with the Securities Act of 1933,
as amended (the "Act"), and the regulations of the Securities and Exchange
Commission promulgated thereunder or state securities or blue sky laws.
Such Warrants are referred to herein collectively as the "Warrants."
3.2. Record Ownership. Oshkosh shall maintain a register of the
Holders of the Warrants (the "Register") showing their names and addresses
and the serial numbers and number of shares of Class B Common Stock
purchasable, issued to or transferred of record by them from time to time.
The Register may be maintained in electronic, magnetic or other
computerized form. Oshkosh may treat the person named as the Holder of
this Warrant in the Register as the sole owner of this Warrant. The
Holder of this Warrant is the person exclusively entitled to receive
notifications with respect to this Warrant, exercise it to purchase shares
of Class B Common Stock and otherwise exercise all of the rights and
powers as the absolute owner hereof.
3.3. Registration of Transfer. To the extent permitted under
the Alliance Agreement, transfers of this Warrant may be registered on the
Register. Transfers shall be registered when this Warrant is presented to
Oshkosh duly endorsed with a request to register the transfer hereof in
accordance with the terms of the Alliance Agreement. When this Warrant is
presented for transfer and duly transferred hereunder, it shall be
cancelled and a new Warrant showing the name of the transferee as the
Holder thereof shall be issued in lieu hereof. No transfer of this
Warrant may take place except in accordance with the terms of the Alliance
Agreement.
3.4. Worn and Lost Warrants. If this Warrant becomes worn,
defaced or mutilated but is still substantially intact and recognizable,
Oshkosh or its agent may issue a new Warrant in lieu hereof upon its
surrender. If this Warrant is lost, destroyed or wrongfully taken,
Oshkosh shall issue a new Warrant in place of the original Warrant if the
Holder so requests by written notice to Oshkosh and the Holder has
delivered to Oshkosh an indemnity agreement reasonably satisfactory to
Oshkosh with an affidavit of the Holder that this Warrant has been lost,
destroyed or wrongfully taken.
3.5. Restrictions on Transfer. (a) This Warrant and the Class
B Common Stock issuable upon the exercise hereof have not been registered
under the Act and therefore this Warrant and the Class B Common Stock
issuable upon the exercise of this Warrant may not be offered for sale,
sold or otherwise transferred unless such offer, sale or other transfer is
registered pursuant to the Act and is otherwise registered under the
appropriate state securities or Blue Sky laws or such transfer is exempt
from such registration. This Warrant does not obligate Oshkosh to
register the Warrant or Class B Common Stock issuable upon the exercise
hereof under the Act or any other law. Certificates representing Class B
Common Stock issuable upon the exercise of this Warrant may bear an
appropriate legend to the effect set forth in this Section 3.5(a).
(b) No transfer of this Warrant or the Class B Common Stock
issuable upon the exercise hereof may be made except in accordance with
the terms of the Alliance Agreement.
3.6. Warrant Agent. Oshkosh may, by written notice to the
Holder, appoint an agent for the purpose of maintaining the Register,
issuing Class B Common Stock or other securities then issuable upon the
exercise of this Warrant, exchanging or transferring this Warrant, or any
or all of the foregoing. Thereafter, any such registration, issuance,
exchange, or transfer, as the case may be, shall be made at the office of
such agent.
4. Reservation of Stock. Oshkosh covenants that, during the term
this Warrant is exercisable, Oshkosh will reserve from its authorized and
unissued Class B Common Stock or Class B Common Stock held in Treasury a
sufficient number of shares to provide for the issuance of Class B Common
Stock upon the exercise of this Warrant. Oshkosh further covenants that
all shares that may be issued upon the exercise of rights represented by
this Warrant, upon exercise of the rights represented by this Warrant and
payment of the Exercise Price, all as set forth herein, will be duly
authorized, validly issued, fully paid and non-assessable (except for
statutory liability under Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law). Oshkosh agrees that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary
certificates for shares of Class B Common Stock upon the exercise of this
Warrant.
5. Effects of Certain Events.
5.1. Class B Common Stock Dividends, Subdivisions or
Combinations. In case Oshkosh shall (A) pay or make a dividend or other
distribution to all holders of its Class B Common Stock in shares of its
Class B Common Stock, (B) subdivide, split or reclassify the outstanding
shares of its Class B Common Stock into a larger number of shares or (C)
combine or reclassify the outstanding shares of its Class B Common Stock
into a smaller number of shares, the Exercise Price in effect and the
number of shares of Class B Common Stock issuable upon exercise hereof, in
each case immediately prior thereto shall be adjusted so that the Holder
of this Warrant shall thereafter be entitled to receive upon the exercise
of this Warrant, the number of shares of Class B Common Stock which such
Holder would have owned and been entitled to receive had such Warrant been
exercised immediately prior to the happening of any of the events
described above or, in the case of a stock dividend or other distribution,
prior to the record date for determination of shareholders entitled
thereto. An adjustment made pursuant to this Section 5.1 shall become
effective immediately after such record date in the case of a dividend or
distribution and immediately after the effective date in the case of a
subdivision, split, combination or reclassification.
5.2. Distributions of Assets or Securities Other Than Class B
Common Stock. In case Oshkosh shall, by dividend or otherwise, distribute
to all holders of its Class B Common Stock shares of any of its capital
stock (other than Class B Common Stock), rights or warrants to purchase
any of its securities (other than those referred to in Section 5.3 below
and other than rights issued under a Company stockholder rights plan),
cash (other than any regular quarterly dividend which the Board of
Directors of Oshkosh declares in the ordinary course of business), other
assets or evidences of its indebtedness, then in each such case the
Exercise Price shall be adjusted by multiplying the Exercise Price in
effect immediately prior to the date of such dividend or distribution by a
fraction, of which the numerator shall be the Average Market Price per
share of Class B Common Stock at the record date for determining
shareholders entitled to such dividend or distribution less the fair
market value (as determined in good faith by the Board of Directors) of
the portion of the securities, cash, assets or evidences of indebtedness
so distributed applicable to one share of Class B Common Stock, and of
which the denominator shall be such Average Market Price per share. An
adjustment made pursuant to this Section 5.2 shall become effective
immediately after such record date.
5.3. Below Market Distributions or Issuances. In case Oshkosh
shall issue Class B Common Stock (or rights, warrants or other securities
convertible into or exchangeable or exercisable for shares of Class B
Common Stock) to all holders of Class B Common Stock at a price per share
(or having an effective exercise, exchange or conversion price per share)
less than the Average Market Price per share of Class B Common Stock at
the record date for the determination of shareholders entitled to receive
such Class B Common Stock (or rights, warrants or other securities
convertible into or exchangeable or exercisable for shares of Class B
Common Stock), then in each such case the Exercise Price shall be adjusted
by multiplying the Exercise Price in effect immediately prior to the date
of issuance of such Class B Common Stock (or rights, warrants or other
securities) by a fraction, the numerator of which shall be the sum of (A)
the number of shares of Class B Common Stock outstanding on the date of
such issuance (without giving effect to any such issuance) and (B) the
number of shares which the aggregate consideration receivable by Oshkosh
for the total number of shares of Class B Common Stock so issued (or into
or for which such rights, warrants or other securities are convertible,
exchangeable or exercisable) would purchase at such Average Market Price,
and the denominator of which shall be the sum of (A) the number of shares
of Class B Common Stock outstanding on the date of such issuance (without
giving effect to any such issuance) and (B) the number of additional
shares of Class B Common Stock so issued (or into or for which such
rights, warrants or other securities are convertible, exchangeable or
exercisable). An adjustment made pursuant to this Section 5.3 shall
become effective immediately after the record date for determination of
shareholders entitled to receive or purchase such Class B Common Stock (or
rights, warrants or other securities convertible into or exchangeable or
exercisable for shares of Class B Common Stock). For purposes of this
Section 5.3, the issuance of any options, rights or warrants or any shares
of Class B Common Stock (whether treasury shares or newly issued shares)
pursuant to any employee (including consultants and directors) benefit or
stock option or purchase plan or program of Oshkosh shall not be deemed to
constitute an issuance of Class B Common Stock or options, rights or
warrants to which this Section 5.3 applies. Notwithstanding anything
herein to the contrary, no further adjustment to the Exercise Price shall
be made (i) upon the issuance or sale of Class B Common Stock upon the
exercise of any rights or warrants or (ii) upon the issuance or sale of
Class B Common Stock upon conversion or exchange of any convertible
securities, if any adjustment in the Exercise Price was made or required
to be made upon the issuance or sale of such rights, warrants or
securities.
5.4. Repurchases. In case at any time or from time to time
Oshkosh or any subsidiary thereof shall repurchase, by self tender offer
or otherwise, any shares of Class B Common Stock of Oshkosh at a weighted
average purchase price in excess of the Average Market Price on the
business day immediately prior to the earliest of the date of such
repurchase, the commencement of an offer to repurchase or the public
announcement of either (such date being referred to as the "Determination
Date"), the Exercise Price in effect as of such Determination Date shall
be adjusted by multiplying such Exercise Price by a fraction, the
numerator of which shall be (A) the product of (x) the number of shares of
Class B Common Stock outstanding on such Determination Date and (y) the
Average Market Price of the Class B Common Stock on such Determination
Date minus (B) the aggregate purchase price of such repurchase and the
denominator of which shall be the product of (x) the number of shares of
Class B Common Stock outstanding on such Determination Date minus the
number of shares of Class B Common Stock repurchased by Oshkosh or any
subsidiary thereof in such repurchase and (y) the Average Market Price of
the Class B Common Stock on such Determination Date. An adjustment made
pursuant to this Section 5.4 shall become effective immediately after the
effective date of such repurchase.
5.5 Fractional Shares. Notwithstanding any adjustment pursuant
to this Article 5 in the number of shares of Class B Common Stock or other
securities purchasable upon the exercise of this Warrant, Oshkosh shall
not be required to issue fractions of shares of Class B Common Stock or
other securities upon exercise of this Warrant or to distribute
certificates that evidence fractional shares. In lieu of fractional
shares, there shall be paid to the holder of this Warrant at the time the
Warrant is exercised as provided herein an amount in cash equal to the
same fraction of the current market value of a share of Class B Common
Stock or other security.
6. Certain Reorganizations. In the event of any change,
reclassification, conversion, exchange or cancellation of outstanding
shares of Class B Common Stock of Oshkosh (other than any reclassification
referred to in Section 5.1), whether pursuant to a merger, consolidation,
reorganization or otherwise, or the sale or other disposition of all or
substantially all of the assets and properties of Oshkosh, this Warrant
shall, after such merger, consolidation, reorganization or other
transaction, sale or other disposition, be exercisable for the kind and
number of shares of stock or other securities, cash or property, of
Oshkosh or otherwise, to which the Holder would have been entitled if
immediately prior to such event such Holder had exercised this Warrant for
Class B Common Stock at the Exercise Price in effect as of the
consummation of such event. The provisions of this Section 6 shall
similarly apply to successive changes, reclassifications, conversions,
exchange or cancellations.
7. No Impairment. Except as permitted by the Alliance Agreement,
Oshkosh will not, by amendment of its Articles of Incorporation or through
any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms
to be observed or performed hereunder by Oshkosh, but will at all times in
good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may be necessary or
appropriate in order to protect the exercise rights of the Holder hereof
against impairment.
8. Calculation of Adjustments. No adjustment in the Exercise Price
shall be required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that any
adjustments which by reason of this Section 8 are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Warrant shall be made by Oshkosh
and shall be made to the nearest cent or to the nearest one hundredth of a
share, as the case may be. Anything in this Warrant to the contrary
notwithstanding, Oshkosh shall be entitled to make such reductions in the
Exercise Price, in addition to those required by this Warrant, as it in
its sole discretion shall determine to be advisable in order that any
stock dividends, subdivision of shares, distribution of rights to purchase
stock or securities, or a distribution of securities convertible into or
exchangeable for stock hereafter made by Oshkosh to its shareholders shall
not be taxable.
9. Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Exercise Price pursuant to this Warrant,
Oshkosh at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to the Holder
of this Warrant a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. Oshkosh shall, upon the written request at any
time of the Holder of this Warrant, furnish or cause to be furnished to
such Holder a like certificate setting forth (i) such adjustments and
readjustments, (ii) the Exercise Price at the time in effect, and (iii)
the number of shares of Class B Common Stock and the amount, if any, of
other property which at the time would be received upon the exercise of
this Warrant.
10. Notices.
10.1. Dilutive Events. In the event that Oshkosh shall
propose at any time:
(1) to declare any dividend (other than regular quarterly cash
dividends in the ordinary course of business) or distribution upon its
Class B Common Stock;
(2) to offer for subscription pro rata to the holders of any
class or series of its stock any additional shares of stock of any class
or series or other rights; or
(3) to effect any transaction of the type described in Section 6
hereof involving a change in the Class B Common Stock;
then, in connection with each such event, Oshkosh shall send to the
Holders of this Warrant:
(A) at least 15 days' prior written notice of the date on which
a record shall be taken for such dividend or distribution (and specifying
the date on which the holders of Class B Common Stock shall be entitled
thereto) or for determining rights to vote in respect of the matters
referred to in (1) and (2) above; and
(B) in the case of the matters referred to in (3) above, at
least 20 days' prior written notice of the date when the same shall take
place (and specifying the time on which the holders of Class B Common
Stock shall be entitled to exchange their Class B Common Stock for
securities, cash or other property deliverable upon the occurrence of such
event).
10.2. Dissolution; Liquidation. In the event of any
voluntary or involuntary dissolution, liquidation or winding up of
Oshkosh, Oshkosh shall send to the Holder of this Warrant at least 20
days' prior written notice thereof.
10.3. Repurchase Programs. Oshkosh shall send written
notice immediately upon any public announcement with respect to an open
market repurchase program, any self tender offer for shares of Class B
Common Stock and any other repurchase other than a repurchase of stock of
an employee or consultant pursuant to any benefit plan or agreement.
11. Amendments. This Warrant may not be amended without the prior
written consent of the Holder.
12. Additional Definition. As used herein, the term "Average Market
Price" shall mean the average of the Market Prices for the 20 consecutive
trading days immediately preceding the date in question.
13. Notices. Any notice, certificate or other communication which
is required or convenient under the terms of this Warrant shall be duly
given if it is in writing and delivered in person or mailed by first class
mail, postage prepaid, and directed to the Holder of the Warrant at its
address as it appears on the Register or if to Oshkosh to its principal
executive offices. The time when such notice is sent shall be the time of
the giving of the notice.
14. Time. Where this Warrant provides for a payment or performance
on a Saturday or Sunday or a public holiday in the State of Wisconsin or
the State of Oregon, such payment or performance may be made on the next
succeeding business day, without liability of Oshkosh for interest on any
such payment.
15. Rules of Construction. In this Warrant, unless the context
otherwise requires, words in the singular number include the plural, and
in the plural include the singular, and words of the masculine gender
include the feminine and the neuter, and when the sense so indicates,
words of the neuter gender may refer to any gender. The numbers and
titles of sections contained in this Warrant are inserted for convenience
of reference only, and they neither form a part of this Warrant nor are
they to be used in the construction or interpretation hereof.
16. Governing Law. This Warrant shall be construed in accordance
with and governed by the law of the State of Wisconsin.
IN WITNESS WHEREOF, Oshkosh has caused this Warrant to be executed by
its officer thereto duly authorized.
OSHKOSH TRUCK CORPORATION
By:
Name:
Title:
ASSIGNMENT OF WARRANT
The undersigned hereby sell(s) and assign(s) and transfer(s)
unto ___________________________________________________________
____________________________________________________________________
(name, address and SSN or EIN of assignee)
rights to purchase _______________ shares of Class B Common Stock pursuant
to this Warrant.
Date: Sign:
(Signature must conform in all respects to
name of Holder shown on face of Warrant)
Signature Guaranteed:
_________________________________________
Name of Assignee
_________________________________________
Street
_________________________________________
City, State, ZIP
_________________________________________
SSN or EIN of Assignee
NOTICE OF EXERCISE
[To be completed and signed only upon exercise of Warrant]
The undersigned, the Holder of this Warrant, hereby irrevocably
elects to exercise the right to purchase Class B Common Stock, par value
$.01 per share, of Oshkosh Truck Corporation, as follows:
_______________________________________________
(whole number of Warrants exercised)
Dollars ($ )
(number of Warrants exercised times Exercise Price)
Shares ( )
Dollars ($ )
(number of shares and Market Price of
Common Stock in cashless exercise)
[Signature must be __________________________________________
guaranteed if name of (name of holder of shares if different
holder of shares differs than Holder of Warrant)
from registered Holder
of Warrant] __________________________________________
(address of holder of shares if different
than address of Holder of Warrant)
__________________________________________
(Social Security or EIN of holder of shares if
different than Holder of Warrant)
Date:___________ Sign:_____________________________________________
(Signature must conform in all respects to name of
Holder shown on face of this Warrant)
Signature Guaranteed:
ANNEX B
J. Peter Mosling, Jr.
Stephen P. Mosling
P.O. Box 2566
Oshkosh, WI 54903
June 2, 1995
Freightliner Corporation
4747 North Channel Avenue
Portland, Oregon 97217-7699
Oshkosh Truck Corporation
2307 Oregon Street
Oshkosh, Wisconsin 54903-2566
Re: Alliance Agreement dated June 2,1995
Gentlemen:
The undersigned are the legal and beneficial owners of 240,706
shares of Class A Common Stock, par value $.01 per share (the "Class A
Common Stock"), of Oshkosh Truck Corporation, a Wisconsin corporation
("Oshkosh"). This letter confirms certain agreements of the undersigned
made in order to induce Freightliner Corporation, a Delaware corporation
("Freightliner"), to enter into the above-referenced Alliance Agreement
with Oshkosh (the "Alliance Agreement").
Accordingly, except as otherwise provided in this letter, we hereby
unconditionally agree that we will not sell, transfer, pledge, hypothecate
or otherwise dispose of any shares of Class A Common Stock that we legally
or beneficially own. In lieu of any such sale, transfer, pledge,
hypothecation or other disposition, we will surrender any such shares
which we desire to transfer to Oshkosh to be exchanged on a one share for
one share basis for shares of Class B Common Stock, par value $.01 per
share (the "Class B Common Stock"), of Oshkosh, whether pursuant to
contract with Oshkosh or pursuant to an amended Oshkosh Articles of
Incorporation entitling the Class A Common Stock to convert as of right
into Class B Common Stock. Notwithstanding the foregoing, we hereby
unconditionally agree that we will not exchange any shares of Class A
Common Stock for Class B Common Stock if, following such exchange, we
would not, in the aggregate, own a majority of the Class A Common Stock
outstanding on a fully diluted basis.
Individually, J. Peter Mosling, Jr. and Stephen P. Mosling may
transfer shares of Class A Common Stock (including transfers by reason of
the death of either of them) to Permitted Transferees (as defined in the
Alliance Agreement). Either of them may retain the right to vote any such
shares when transferred (except for a transfer on death) and, to the
extent permitted by law and the bylaws of Oshkosh, may transfer or assign
such voting rights to each other. Any transferee shall agree in writing
at the time of transfer that he, she or it accepts such transfer subject
to the restrictions of this Agreement.
Individually, J. Peter Mosling, Jr. and Stephen P. Mosling are
parties to a certain letter agreement with R. Eugene Goodson, dated June
25, 1990. Under the terms of this letter agreement, Mr. Goodson may
exchange shares of Class B Common Stock of Oshkosh which he then owns for
shares of Class A Common Stock which Messrs. Mosling then own, up to such
point as Mr. Goodson then owns one-third of the total of the shares of
Class A Common Stock then owned directly by Messrs. Mosling. Such
exchanges shall be permitted but all such shares of Class A Common Stock
acquired by Mr. Goodson as a result of such exchanges shall be subject to
the restrictions of this Agreement.
By its acknowledgment and acceptance below, Oshkosh agrees that it
will accept our shares of Class A Common Stock in exchange for shares of
Class B Common Stock on a contractual basis pending an amendment of the
Oshkosh Articles of Incorporation to provide that shares of Class A Common
Stock may be converted into shares of Class B Common Stock at the option
of the holder thereof. Oshkosh further agrees that it will undertake on a
reasonable and timely basis to seek to obtain the necessary approvals
required to implement such amendment to the Oshkosh Articles of
Incorporation.
Oshkosh further agrees that it will not permit any registration
of transfer of shares of Class A Common Stock made in violation of the
commitment contained in this letter and all of the parties to this letter
agreement agree that damages would be an inadequate remedy for any breach
or threatened breach hereof and that accordingly any of the parties shall
be entitled to equitable relief, including an injunction or an order of
specific performance, against any breach or threatened breach of this
letter agreement.
The restrictions and obligations set forth in this letter shall
expire (i) upon termination of the Alliance Agreement if Freightliner
shall not have theretofore exercised the Warrants (as defined in the
Alliance Agreement) or (ii) at such time thereafter as Freightliner shall
beneficially own less than five percent (5%) of the outstanding shares of
Class B Common Stock.
Sincerely,
J. Peter Mosling, Jr. Stephen P. Mosling
R. Eugene Goodson
Accepted and Agreed:
OSHKOSH TRUCK CORPORATION
By:
Name:
Title:
FREIGHTLINER CORPORATION
By:
Name:
Title:
ANNEX C
REGISTRATION RIGHTS
SECTION 1. Demand Registration. (a) Subject to and in accordance
with the Alliance Agreement, Freightliner may at any time request Oshkosh,
in writing, to register under the Securities Act any or all of the shares
of Class B Common Stock and any or all of the Warrants to purchase Class B
Common Stock, in each case acquired from Oshkosh and owned by Freightliner
(or any securities issued or issuable in respect of the Warrants or the
Class B Common Stock, by dividend, recapitalization, reclassification,
merger or otherwise) (the "Registrable Securities"). Oshkosh shall use
its reasonable best efforts to cause the number of Registrable Securities
specified in such request to be registered as soon as reasonably
practicable so as to permit the sale thereof in accordance with the manner
of distribution specified in such request, and in connection therewith
shall prepare and file as promptly as practicable with the SEC a
registration statement under the Securities Act to effect such
registration on such appropriate form as Oshkosh shall reasonably
determine, provided that each such request shall (i) specify the number of
Registrable Securities intended to be offered and sold; (ii) express the
present intention of Freightliner to offer or cause the offering of such
number of Registrable Securities for distribution; (iii) describe the
nature or method of the proposed offer and sale thereof, including the
plan of distribution therefor (including, but not limited to, unless
Oshkosh shall otherwise agree, no more than one offering on a delayed or
continuous basis pursuant to Rule 415 (or any successor rule to similar
effect) promulgated under the Securities Act (a "Rule 415 Offering")
provided, however that such plan of distribution must be an underwritten
public offering if the Registrable Securities intended to be offered and
sold constitute shares of Class B Common Stock constituting in excess of
three percent (3%) of the then outstanding shares of Class B Common Stock
or Warrants to acquire shares of Class B Common Stock exercisable to
acquire such amount of Class B Common Stock; (iv) cover an aggregate
number of Registrable Securities equal to not less than 100,000 shares of
Class B Common Stock (or warrants exercisable for not less than 100,000
shares of Common Stock); (v) not be made less than one year after the
effective date of any other registration statement filed under this
Section 1, less than one year after the effective date of any other
registration statement filed under Section 2 in connection with which
Freightliner sold or had the opportunity to sell Registrable Securities or
less than 6 months after the effective date of any other registration
statement filed by Oshkosh relating to an underwritten offering for cash
of any of its equity securities; and (vi) contain the undertaking of
Freightliner to provide all such information and materials and take all
such action as may be required in order to permit Oshkosh to comply with
all applicable requirements of the SEC and to obtain any desired
acceleration of the effective date of such registration statement. The
obligation of Oshkosh to register any Registrable Securities on demand in
accordance with this Section 1 shall expire (A) after Oshkosh has filed
registration statements by reason of such demands on three separate
occasions; provided, that a registration statement shall not be deemed to
have been filed if it fails to become effective for any reason other than
the failure by Freightliner to proceed with the offer and sale of
Registrable Securities pursuant to its request delivered under this
Section 1 or, if after becoming effective, it shall be subject to a stop
order, injunction or other governmental action restricting distribution
thereunder prior to the completion of the sale of any Registrable
Securities thereunder, other than due to any such action resulting from
action taken by Freightliner; or (B) if earlier, such time after
expiration of the Alliance Agreement after the Warrants have been
exercised or have expired if Freightliner then beneficially owns less than
ten percent (10%) of the outstanding Class B Common Stock and a period of
at least two years has expired after the last exercise of any Warrants.
(b) The obligation of Oshkosh to use its reasonable best efforts
to cause the Registrable Securities to be registered under the Securities
Act is subject to the limitation that Oshkosh shall be entitled to
postpone for a reasonable period of time, but not more than four months,
the filing of any registration statement otherwise required to be prepared
and filed by it pursuant hereto, the effectiveness of a registration
statement therefore filed by it or sales pursuant to an effective
registration statement if, Oshkosh, based on advice of counsel,
determines, in its reasonable judgment exercised in good faith, that such
registration and/or sale (i) would interfere with any financing,
acquisition, corporate reorganization or other material transaction
involving Oshkosh or (ii) would require the disclosure of material
information, which disclosure could materially and adversely affect
Oshkosh, and, in either case, promptly gives written notice of such
determination. If Oshkosh shall so postpone the filing of a registration
statement, Freightliner shall have the right to withdraw the request for
registration by giving written notice to Oshkosh within thirty calendar
days after receipt of the notice of postponement. After the expiration of
any 4-month postponement period, Oshkosh will allow, during the immediate
succeeding 4-month period, the filing and effectiveness of a registration
statement and sales thereunder for a demand registration under this
Section 1. Upon receipt of any notice from Oshkosh of the happening of
any event of the kind described in the first sentence of this Section
1(b), Freightliner will forthwith discontinue the disposition of its
Registrable Securities pursuant to the registration statement until
further notice from Oshkosh.
(c) In connection with any offering pursuant to this Section 1
that is an underwritten offering, Oshkosh shall be entitled to include in
such registration equity securities to be sold for the account of Oshkosh
or any shareholder of Oshkosh; provided, however, that if the managing
underwriters for such offering advise that the inclusion of all securities
sought to be registered may interfere with an orderly sale and
distribution or may materially adversely affect the price of such
offering, the securities to be registered shall be included in such
registration in accordance with the following priorities: first, all
securities to be sold for the account of Freightliner, second, all
securities to be sold for the account of other shareholders who have
priority rights to registration, up to the limit specified by the managing
underwriters, third, all securities to be sold for the account of Oshkosh,
up to the limit specified by the managing underwriters and fourth, all
other securities to be sold for the account of other shareholders, up to
the limit specified by the managing underwriters.
(d) The managing underwriter of any underwritten offering
pursuant to this Section 1 shall be mutually acceptable to Oshkosh and
Freightliner.
SECTION 2. Piggyback Registration. (a) If Oshkosh shall, at any
time and from time to time prior to such time as Oshkosh's obligations
under Section 1 have expired, propose the registration under the
Securities Act of an underwritten offering for cash of any of its equity
securities, whether for the account of Oshkosh or another shareholder,
Oshkosh shall give written notice as promptly as possible of such proposed
registration to Freightliner and will use its best efforts to include in
such registration the sale of such number of shares of Class B Common
Stock that are Registrable Securities as Freightliner shall request that
Freightliner is entitled to transfer under the Alliance Agreement, within
14 days after the giving of such notice, upon the same terms (including
the method of distribution) as such offering; provided that: (i) Oshkosh
shall not be required to give notice or include any such Registrable
Securities in any such registration if the proposed registration is
primarily (A) a registration of a stock option or compensation plan or of
securities issued or issuable pursuant to any such plan or (B) a
registration of securities proposed to be issued in exchange for
securities or assets of, or in connection with a merger or consolidation
with, another corporation; (ii) the offering of any such Registrable
Securities shall be in conformity with this Annex C; and (iii) Oshkosh may
at any time prior to the effectiveness of any such registration statement,
in its sole discretion and without the consent of Freightliner, withdraw
such registration statement and abandon the proposed offering in which
Freightliner had requested to participate.
(b) In connection with any offering pursuant to Section 2, if
the managing underwriters for such offering advise that the inclusion of
all securities sought to be registered may interfere with an orderly sale
and distribution or may materially adversely affect the price of such
offering, the securities to be registered shall be included in such
registration in accordance with the following priorities: first, all
securities to be sold for the account of Oshkosh, second, all securities
to be sold for the account of any other shareholder who has the right to
demand registration in connection with the sale of any securities and has
requested such registration with respect to the registration statement at
issue, third, all securities to be sold for the account of Freightliner,
up to the limit specified by the managing underwriters and fourth all
other securities to be sold for the account of other shareholders, up to
the limit specified by the managing underwriters.
(c) If there is an offering of the type described in this
Section 2, then, whether or nor Freightliner had the ability to register
any Registrable Securities in connection with the offering and
notwithstanding any other provisions of the Alliance Agreement (including
this Annex C), Freightliner shall not transfer any Registrable Securities
during the period commencing 7 days before the effectiveness of such
offering and ending 3 months after completion of such offering.
(d) The managing underwriter of any underwritten offering
pursuant to this Section 2 shall be selected by Oshkosh.
SECTION 3. Incidental Obligations. In connection with any
offering of Registrable Securities registered pursuant to this Annex C,
Oshkosh shall (i) furnish to Freightliner such number of copies of any
prospectus (including any preliminary prospectus) as it may reasonably
request in order to effect the offering and sale of the Registrable
Securities to be offered and sold, but only while Oshkosh shall be
required under the provisions hereof to cause the registration statement
to remain current, and (ii) take such action as shall be necessary to
qualify the Registrable Securities covered by such registration under
state securities laws for offer and sale as Freightliner shall request;
provided that Oshkosh shall not be obligated to qualify as a foreign
corporation to do business under the laws of any jurisdiction in which it
shall not be then qualified or to file any general consent to service of
process. In connection with any offering of Registrable Securities
registered pursuant to this Annex C, Oshkosh shall (A) furnish, at
Oshkosh' expense, unlegended certificates representing ownership of the
Registrable Securities being sold in such denominations as shall be
requested and (B) instruct the transfer agent and registrar of the Oshkosh
Common Stock to release any stop transfer orders with respect to the
Registrable Securities being sold. Upon any registration becoming
effective pursuant to this Annex C, Oshkosh shall use its reasonable best
efforts to keep such registration statement current for a period of ninety
calendar days following its effective date (or until earlier completion of
the distribution contemplated thereby) except that with respect to a Rule
415 Offering Oshkosh shall use its best efforts to keep such registration
statement current and effective for a period of one hundred eighty
calendar days following its effective date. Oshkosh will otherwise use
its best efforts to ensure that any offering pursuant to this Annex C
complies with all applicable law and regulation, including any applicable
listing agreement for Oshkosh's securities and shall furnish such other
information and documents as the Shareholder Representative may reasonably
request in connection therewith, and Freightliner will cooperate with
Oshkosh and furnish such information as Oshkosh may reasonably request in
connection therewith.
SECTION 4. Registration Expenses. In connection with any
registration pursuant to this Annex C, Oshkosh will pay all SEC and Blue
Sky registration and filing fees, underwriting discounts and commissions
in respect of securities to be sold by Oshkosh, printing expenses, fees
and disbursements of legal counsel for Oshkosh and Blue Sky counsel,
transfer agents' and registrar's fees and fees and disbursements of any
public accountants used by Oshkosh in connection with such registration
(excluding the underwriting discounts in respect of securities to be sold
by Oshkosh, the "Registration Expenses"); provided, however, that
Freightliner, and not Oshkosh, shall be obligated to pay all such
Registration Expenses in connection with a demand registration made
pursuant to Section 1 of this Annex C in which Freightliner seeks to
register less than 5% of the outstanding number of shares of Oshkosh
Common Stock on a fully diluted basis. In addition to, and not in
limitation of, the foregoing, Freightliner shall pay all of its own
expenses, including underwriting discounts and transfer taxes in respect
of securities to be sold by it and fees and disbursements of
Freightliner's counsel.
SECTION 5. Indemnification, Contribution, Underwriting Agreement.
In connection with any offering pursuant to this Annex C, Oshkosh and/or
Freightliner, as the case may be, will enter into an underwriting
agreement (and any related agreements) with the underwriters for the
offering on customary terms. In connection with any offering pursuant to
this Annex C, Oshkosh and Freightliner will enter into indemnification and
contribution agreements on customary terms, providing, among other things,
that Freightliner will indemnify and hold harmless Oshkosh in respect of
any information concerning Freightliner contained in the registration
statement supplied in writing by Freightliner, and Oshkosh will indemnify
and hold harmless Freightliner in respect of any other information
contained in the registration statement or any failure of the registration
statement to comply with applicable law. In each case, any dispute as to
what provisions are customary will be determined by counsel for the
managing underwriter for the offering.
SECTION 6. Transferability. Freightliner may not transfer its
rights under this Annex C, in whole or in part, to any transferee of any
Registrable Securities.