Exhibit 2.1 Exhibit 2.1 AGREEMENT ANDPLAN OF MERGER by and among JOY GLOBAL INC., KOMATSU AMERICA CORP., PINE SOLUTIONS INC. and (solely for the purposes set forth on its signature page hereto) KOMATSU LTD. Dated as of July 21, 2016 TABLE OF CONTENTS ARTICLE I THE MERGERSECTION 1.01 The Merger 2SECTION 1.02 The Effective Time2SECTION 1.03The Closing 2SECTION 1.04 Effects of the Merger2SECTION 1.05Organizational Documents3SECTION 1.06 Survining Corporation Directors and Officers 3

This AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of July 21, 2016, is by and among Joy Global Inc., a Delaware corporation (the "Company"), Komatsu America Corp., a Georgia corporation (the "Parent"), Pine Solutions Inc., a Delaware corporation and wholly-owned Subsidiary of Parent ("Merger Sub" and, together with the Company and Parent, the "Parties"), and, solely for the purposes set forth on its signature page hereto, Komatsu Ltd., a Japanese joint stock company (the "Guarantor").

WHEREAS, the Parties intend that, upon the terms and subject to the conditions set forth herein, at the Effective Time, Merger Sub will merge with and into the Company, with the Company surviving such merger;

 

WHEREAS, the board of directors of the Company (the "Company Board") unanimously has (a) determined that it is in the best interests of the Company and its stockholders, and declared it advisable, for the Company to enter into this Agreement, (b) adopted this Agreement and approved the Company's execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and (c) resolved to recommend that the Company's stockholders approve this Agreement;

 

WHEREAS, the board of directors of Parent has (a) determined that it is in the best interests of Parent and its stockholders, and declared it advisable, for Parent to enter into this Agreement and (b) adopted this Agreement and approved Parent's execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement;

 

WHEREAS, the board of directors of Merger Sub has (a) determined that it is in the best interests of Merger Sub and its stockholder, and declared it advisable, for Merger Sub to enter into this Agreement, (b) adopted this Agreement and approved Merger Sub's execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and (c) resolved to recommend that Parent, in its capacity as Merger Sub's sole stockholder, approve this Agreement;

 

WHEREAS, Parent, as sole stockholder of Merger Sub, will concurrently with the execution of this Agreement approve the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby; and

 

WHEREAS, the Company, Parent and Merger Sub desire to make certain representations, warranties, covenants and agreements specified herein in connection with this Agreement.

 

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements set forth in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and subject to the conditions set forth herein, and each intending to be legally bound hereby, the Parties agree as follows:

(a)        Treatment of Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of the Company, Parent, Merger Sub or any holder of shares of Company Common Stock:

(ii) Conversion of Company Common Stock. Subject to Section 2.01(b) and except as otherwise provided in this Agreement, each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (except for shares to be canceled and retired or converted in accordance with Section 2.01(a)(i) and the Dissenting Shares) shall be converted automatically into the right to receive an amount in cash (without interest) equal to the Merger Consideration, payable as provided in Section 2.02, and, when so converted, shall automatically be canceled and retired and shall cease to exist; and

(iii)     Conversion of Merger Sub Common Stock. Each share of common stock, par value $1.00 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into one share of common stock, $1.00 par value, of the Surviving Corporation and shall constitute the only outstanding shares of capital stock of the Surviving Corporation. From and after the Effective Time, all certificates representing the common stock of Merger Sub shall be deemed for all purposes to represent the number of shares of common stock of the Surviving Corporation into which they were converted in accordance with the immediately preceding sentence.

(b)         Adjustments to Merger Consideration. If at any time during the period between the date of this Agreement and the Effective Time, any change in the outstanding shares of capital stock of the Company (or any other securities convertible therefor or exchangeable thereto) shall occur as a result of any reclassification, stock split (including a reverse stock split), combination, exchange or readjustment of shares, or any stock dividend or stock distribution with a record date during such period, or any similar event, the Merger Consideration and any other similarly dependent items shall be equitably adjusted to provide to Parent, Merger Sub, and the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action.

(a)         Paying Agent. Prior to the Effective Time, Parent and the Company shall mutually agree upon and appoint a bank or trust company to act as paying agent (the "Paying Agent") for the purpose of exchanging shares of Company Common Stock for the Merger Consideration in accordance with Section 2.01(a)(ii). Prior to the Effective Time, Parent shall irrevocably deposit or cause to be deposited with the Paying Agent, in trust for the benefit of the holders of Company Common Stock contemplated by Section 2.01(a)(ii), cash in an amount equal to the aggregate amount of the Merger Consideration pursuant to Section 2.01(a)(ii) (the "Payment Fund") and shall provide written evidence reasonably satisfactory to the Company of the completion of such deposit. The Paying Agent shall deliver the Merger Consideration to be paid pursuant to Section 2.01(a) out of the Payment Fund. Except as provided in Section 2.02(e), the Payment Fund shall not be used for any other purpose.

(i) Promptly after the Effective Time (but no later than two (2) Business Days after the Effective Time), the Paying Agent will mail to each holder of record of a certificate representing outstanding shares of Company Common Stock immediately prior to the Effective Time (a "Certificate") and to each holder of uncertificated shares of Company Common Stock represented by book entry immediately prior to the Effective Time ("Book-Entry Shares"), in each case, whose shares were converted into the right to receive the Merger Consideration pursuant to Section 2.01(a)(ii):

(1) a letter of transmittal, which shall specify that delivery shall be effected, and that risk of loss and title to Certificates or Book-Entry Shares held by such holder will pass, only upon delivery of such Certificates or Book-Entry Shares to the Paying Agent and which shall be in form and substance reasonably satisfactory to Parent and the Company, and

(2) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares in exchange for the Merger Consideration with respect to such shares.

(iii) The Paying Agent will accept Certificates or Book-Entry Shares upon compliance with such reasonable terms and conditions as the Paying Agent may impose to effect an orderly exchange of the Certificates and Book-Entry Shares in accordance with customary exchange practices.

 

(iv) From and after the Effective Time, no further transfers may be made on the records of the Company or its transfer agent of Certificates or Book-Entry Shares, and if any Certificate or Book-Entry Share is presented to the Company for transfer, such Certificate or Book-Entry Share shall be canceled against delivery of the Merger Consideration payable in respect of the shares of Company Common Stock represented by such Certificate or Book-Entry Share.

 

(v) If any Merger Consideration is to be remitted to a name other than that in which a Certificate or Book-Entry Share is registered, no Merger Consideration may be paid in exchange for such surrendered Certificate or Book-Entry Share, unless:

 

(1) either (A) the Certificate so surrendered is properly endorsed, with signature guaranteed, or otherwise in proper form for transfer or (B) the Book-Entry Share is properly transferred; and

 

(2) the Person requesting such payment shall (A) pay any transfer or other Taxes required by reason of the payment to a Person other than the registered holder of the Certificate or Book-Entry Share or (B) establish to the satisfaction of the Paying Agent that such Tax has been paid or is not payable.

(vi) At any time after the Effective Time until surrendered as contemplated by this Section 2.02, each Certificate or Book-Entry Share shall be deemed to represent only the right to receive upon such surrender the Merger Consideration payable in respect of the shares of Company Common Stock represented by such Certificate or Book-Entry Share as contemplated by Section 2.01(a)(ii). No interest will be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on the Merger Consideration payable in respect of the shares of Company Common Stock represented by Certificates or Book-Entry Shares.

(c)         No Further Ownership Rights in Company Common Stock.

(i) At the Effective Time, each holder of a Certificate, and each holder of Book-Entry Shares, will cease to have any rights with respect to such shares of Company Common Stock, except, to the extent provided by Section 2.01, for the right to receive the Merger Consideration payable in respect of the shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares upon surrender of such Certificate or Book-Entry Share in accordance with Section 2.02(b) (subject to Section 2.04 in respect of Dissenting Shares);

(ii) The Merger Consideration paid upon the surrender or exchange of Certificates or Book-Entry Shares in accordance with this Section 2.02 will be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificates or Book-Entry Shares.

(d)         Termination of Payment Fund. The Paying Agent will deliver to the Surviving Corporation, upon the Surviving Corporation's demand, any portion of the Payment Fund (including any interest and other income received by the Paying Agent in respect of all such funds) which remains undistributed to the former holders of Certificates or Book-Entry Shares upon expiration of the period ending six (6) months after the Effective Time. Thereafter, any former holder of Certificates or Book-Entry Shares prior to the Merger who has not complied with this Section 2.02 prior to such time, may look only to the Surviving Corporation for payment of his, her or its claim for Merger Consideration to which such holder may be entitled.

(e)         Investment of Payment Fund. The Paying Agent shall invest any cash in the Payment Fund if and as directed by Parent; provided that such investment shall be in obligations of, or guaranteed by, the United States of America, in commercial paper obligations of issuers organized under the Law of a state of the United States of America, rated A‑1 or P‑1 or better by Moody's Investors Service, Inc. or Standard & Poor's Ratings Service, respectively, or in certificates of deposit, bank repurchase agreements or bankers' acceptances of commercial banks with capital exceeding $10,000,000,000, or in mutual funds investing in such assets. Any interest and other income resulting from such investments shall be paid to, and be the property of, Parent. No investment losses resulting from investment of the Payment Fund shall diminish the rights of any of the Company's stockholders to receive the Merger Consideration or any other payment as provided herein. To the extent there are losses with respect to such investments or the Payment Fund diminishes for any other reason below the level required to make prompt cash payment of the aggregate funds required to be paid pursuant to the terms hereof, Parent shall reasonably and promptly replace or restore the cash in the Payment Fund, so as to ensure that the Payment Fund is at all times maintained at a level sufficient to make such cash payments.

(f)         No Liability. None of the Company, Parent, Merger Sub, the Surviving Corporation or the Paying Agent shall be liable to any Person in respect of any portion of the Payment Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.

(g)         Withholding Taxes. Each of Parent, the Company, the Surviving Corporation and the Paying Agent shall be entitled to deduct and withhold from the amount otherwise payable to any Person pursuant to this Agreement such amounts for Taxes that the Parent, the Company, the Surviving Corporation or the Paying Agent, as applicable is required to deduct and withhold with respect to the making of such payment under applicable Tax Law. Amounts so deducted and withheld shall be timely paid over to the appropriate taxing authority, and shall be treated for all purposes under this Agreement as having been paid to the Person in respect of which such deduction or withholding was made. Parent, the Company the Surviving Corporation or the Paying Agent, as relevant, shall provide advance notice of any requirement to withhold and deduct Taxes.

(h)         Lost, Stolen or Destroyed Certificates. If any Certificate formerly representing shares of Company Common Stock has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent, the posting by such Person of a bond, in such reasonable and customary amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent shall deliver and pay, in exchange for such lost, stolen or destroyed certificate, the Merger Consideration payable in respect thereof pursuant to this Agreement.

(a)          Company Options. At the Effective Time, each Company Option that is outstanding as of immediately prior to the Effective Time, whether vested or unvested, shall be cancelled by virtue of the Merger and without any action on the part of the holder thereof, in consideration for the right to receive, as promptly as practicable (but not later than 3 Business Days) following the Effective Time, a cash payment (without interest and less applicable withholding Taxes) with respect thereto equal to the product of (i) the number of shares of Company Common Stock subject to such Company Option as of immediately prior to the Effective Time and (ii) the excess, if any, of the Merger Consideration over the exercise price per share of Company Common Stock subject to such Company Option as of immediately prior to the Effective Time.

(b)         Company RSU Awards and Company Performance Share Awards.

(i) At the Effective Time, each Company RSU Award (excluding any Company Rollover RSU Award) and each Company Performance Share Award that is outstanding as of immediately prior to the Effective Time shall be cancelled by virtue of the Merger and without any action on the part of the holder thereof, in consideration for the right to receive, as promptly as practicable (but not later than 3 Business Days) following the Effective Time, a cash payment (without interest and less applicable withholding Taxes) with respect thereto equal to the product of (A) the number of shares of Company Common Stock subject to such Company RSU Award or Company Performance Share Award as of immediately prior to the Effective Time and (B) the Merger Consideration; provided, however, that to the extent that any such Company RSU Award or Company Performance Share Award constitutes nonqualified deferred compensation subject to Section 409A of the Code, such cash payment shall be paid in accordance with the applicable award's terms and at the earliest time permitted under the terms of such award that will not result in the application of a tax or penalty under Section 409A of the Code. For each Company Performance Share Award outstanding immediately prior to the Effective Time, the number of shares subject to the applicable award shall be one hundred percent (100%) of the "Target Number of Performance Shares" set forth in the award at the time of grant.

(ii) At the Effective Time, each Company Rollover RSU Award that is outstanding as of immediately prior to the Effective Time shall be converted into a long-term incentive award (a "Cash LTI Award") that entitles the holder to receive an aggregate fixed amount in cash equal to the product of (A) the number of shares of Company Common Stock underlying the Company Rollover RSU Award as of immediately prior to the Effective Time and (B) the Merger Consideration. Each Cash LTI Award shall be subject to the same vesting terms that applied to the corresponding Company Rollover RSU Award as of immediately prior to the Effective Time. The portion of each Cash LTI Award that becomes vested on each applicable vesting date (including the date of a Qualifying Termination following the Effective Time, if applicable) shall be paid within thirty (30) days following such vesting date.

(c)         Employee Stock Purchase Plans. Prior to the Effective Time, the Company Board and/or the appropriate committee thereof shall take action with respect to the Employee Stock Purchase Plans in order to effectuate the following: (i) to cause the option offering periods ongoing as of the date of this Agreement to be the final option offering periods under the Employee Stock Purchase Plans and the purchase rights outstanding under the Employee Stock Purchase Plans as of the date of this Agreement to be exercised on the earlier of (x) the applicable regularly scheduled purchase date and (y) the trading date that is five Business Days prior to the Closing Date (in each case, the "Final Purchase Date"), (ii) to cause that no additional options shall be granted under the Employee Stock Purchase Plans on or after the applicable Final Purchase Date, (iii) to prohibit participants in the Employee Stock Purchase Plans from increasing their payroll deductions from those in effect on the date of this Agreement, and (iv) to terminate the Employee Stock Purchase Plans effective immediately prior to the Closing Date.

(d)         Prior to the Effective Time, the Company, the Company Board of Directors and/or the appropriate committee thereof, as applicable, shall adopt any resolutions that are necessary to effectuate the provisions of this Section 2.03.

(a)         Notwithstanding any provision of this Agreement to the contrary, shares of Company Common Stock that are issued and outstanding immediately prior to the Effective Time and that are held by holders who have not voted in favor of or consented to the Merger and who are entitled to demand and have properly demanded their rights to be paid the fair value of such shares of Company Common Stock in accordance with Section 262 of the DGCL (a "Dissenting Share") shall not be cancelled and converted into the right to receive the Merger Consideration as provided in Section 2.01 and Section 2.02, and the holders of Dissenting Shares shall be entitled to only such rights as are granted by Section 262 of the DGCL. If, after the Effective Time, any such holder fails to perfect or otherwise effectively waives, withdraws or loses such right, such Dissenting Shares shall thereupon be treated as if they had been converted into, and have become exchangeable for, at the Effective Time, the right to receive the Merger Consideration as provided in accordance with Section 2.01 and Section 2.02, without any interest thereon.

(b)         The Company shall promptly notify Parent of any notices of intent, demands or other communications received by the Company for appraisal of any shares of Company Common Stock and attempted withdrawals of such demands and of any other instruments served pursuant to the DGCL and received by the Company relating to Section 262 of the DGCL, and Parent shall have the right to participate in negotiations and proceedings with respect to such demands for appraisal.

Except (a) as set forth in the Company Reports publicly available and filed with or furnished to the SEC within twelve (12) months prior to the date of this Agreement (other than disclosures in the "Risk Factors" sections of the such Company Reports or any disclosures included in such Company Reports that are similarly cautionary, predictive or forward-looking in nature; provided, that any matter set forth in such Company Reports shall be deemed to qualify any representation or warranty in this Article III only to the extent that the manner in which it would qualify a representation or warranty is reasonably apparent) or (b) subject to Section 9.04(j), as set forth in the corresponding section of the disclosure schedule delivered by the Company to Parent concurrently with the execution and delivery by the Company of this Agreement (the "Company Disclosure Schedule"), the Company represents and warrants to Parent and Merger Sub as follows:

(a)         The authorized capital stock of the Company consists of 155,000,000 shares of which 150,000,000 shares is Company Common Stock of the par value of $1.00 each, 5,000,000 shares is preference stock of the par value $1.00 each (the "Preferred Stock"). At the close of business on July 18, 2016, (i) 98,148,958 shares of Company Common Stock were issued and outstanding, (ii) no shares of Preferred Stock were issued and outstanding, (iii) 33,644,764 shares of Company Common Stock were held by the Company in its treasury, (iv) Company RSU Awards with respect to an aggregate of 1,646,975 shares of Company Common Stock were issued and outstanding, (v) Company Performance Share Awards with respect to an aggregate of 781,011 shares of Company Common Stock based on achievement of applicable performance criteria at the maximum level were issued and outstanding, and (vi) Company Options with respect to an aggregate of 3,953,757 shares of Company Common Stock were issued and outstanding. At the close of business on July 18, 2016, (a) an aggregate of 6,727,971 shares of Company Common Stock were reserved and available for issuance pursuant to the Company Stock Plans and (b) and an aggregate of 1,444,761 shares of Company Common Stock were reserved and available for issuance pursuant to the Employee Stock Purchase Plans.

(b)         All outstanding shares of Company Common Stock are, and all shares of Company Common Stock that may be issued upon the settlement or exercise (as applicable) of Company RSU Awards, Company Performance Share Awards and Company Options will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to, or issued in violation of, any preemptive right. Except as set forth in this Section 3.03 or pursuant to the terms of this Agreement, there are not issued, reserved for issuance or outstanding, and there are not any outstanding obligations of the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, (i) any capital stock of the Company or any Company Subsidiary or any securities of the Company or any Company Subsidiary convertible into or exchangeable or exercisable for shares of capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary, (ii) any warrants, calls, options or other rights to acquire from the Company or any Company Subsidiary, or any other obligation of the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, any capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary or (iii) any rights issued by or other obligations of the Company or any Company Subsidiary that are linked in any way to the price of any class of Company Common Stock or any shares of capital stock of any Company Subsidiary, the value of the Company, any Company Subsidiary or any part of the Company or any Company Subsidiary or any dividends or other distributions declared or paid on any shares of capital stock of the Company or any Company Subsidiary (the foregoing clauses (i), (ii) and (iii), collectively, "Equity Securities"). Except pursuant to the Company Stock Plan, there are not any outstanding obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any Equity Securities. There is no outstanding Indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote ("Company Voting Debt"). No Company Subsidiary owns any shares of Company Common Stock. Neither the Company nor any of the Company Subsidiaries is a party to any voting agreement with respect to the voting of any capital stock or voting securities of, or other equity interests in, the Company or any of the Company Subsidiaries.

(a)         The execution and delivery by the Company of this Agreement does not, and the performance by the Company of its covenants and agreements hereunder and the consummation of the Merger will not, (i) subject to obtaining the Company Stockholder Approval, conflict with, or result in any violation of any provision of, the Company Articles, the Company Bylaws or the Organizational Documents of any Company Subsidiary, (ii) other than the Consents set forth in Section 3.05(a)(ii) of the Company Disclosure Schedule (the "Required Consents"), conflict with, result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss of a material benefit under any Company Material Contract or any other material Contract to which Company or any of the Company Subsidiaries is party or by which any of their respective properties or assets is bound or any material Permit applicable to the business of the Company or any of the Company Subsidiaries or (iii) subject to obtaining the Company Stockholder Approval and the Consents referred to in Section 3.05(b) and making the Filings referred to in Section 3.05(b), conflict with, or result in any violation of any provision of, any Judgment or Law, in each case, applicable to the Company or any Company Subsidiary or their respective properties or assets, except for, in the case of the foregoing clauses (ii) and (iii), any matter that would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and would not prevent or materially impede, interfere with or delay the consummation of the Merger.

(b)         No consent, waiver or Permit ("Consent") of or from, or registration, declaration, notice or filing ("Filing") made to or with, any Governmental Entity is required to be obtained or made by the Company or any Company Subsidiary in connection with the Company's execution and delivery of this Agreement or its performance of its covenants and agreements hereunder or the consummation of the Merger, except for the following:

(i) (1) the filing with the Securities and Exchange Commission (the "SEC"), in preliminary and definitive form, of the Proxy Statement and (2) the filing with the SEC of such reports under, and such other compliance with, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the Securities Act of 1933, as amended (the "Securities Act"), and rules and regulations of the SEC promulgated thereunder, as may be required in connection with this Agreement or the Merger;

(ii) compliance with, Filings under and the expiration of any applicable waiting period or extension thereof under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (the "HSR Act") and such other Consents or Filings, and the expiration of any applicable waiting period or extension thereof, that Parent and the Company agree should be made or obtained as set forth in Section 3.05(b)(ii) of the Company Disclosure Schedule (the Consents and Filings referred to in this clause (ii), collectively, the "Required Statutory Approvals");

(iii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware and appropriate documents with the relevant authorities of the other jurisdictions in which Parent and the Company are qualified to do business;

(iv) the Required Consents;

 

(vi) such other Filings or Consents the failure of which to make or obtain would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and would not prevent or materially impede, interfere with or delay the consummation of the Merger.

(a)         The Company has furnished or filed all reports, schedules, forms, statements and other documents (including exhibits and other information incorporated therein) required to be furnished or filed by the Company with the SEC since January 1, 2013 (such documents, together with all exhibits, financial statements, including the Company Financial Statements, and schedules thereto and all information incorporated therein by reference, but excluding the Proxy Statement, being collectively referred to as the "Company Reports"). Each Company Report (i) at the time furnished or filed, complied in all material respects with the applicable requirements of the Exchange Act, the Securities Act and the Sarbanes-Oxley Act of 2002 (including the rules and regulations promulgated thereunder), as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such Company Report and (ii) did not at the time it was filed (or if amended or superseded by a filing or amendment prior to the date of this Agreement, then at the time of such filing or amendment) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. As of the date of this Agreement, there are no outstanding or unresolved comments received in writing from the SEC with respect to any of the Company Reports, and, to the Company's Knowledge, none of the Company Reports is the subject of any ongoing review by the SEC. Each of the consolidated financial statements of the Company included in the Company Reports (the "Company Financial Statements") complied at the time it was filed as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, was prepared in accordance with United States generally accepted accounting principles ("GAAP") (except, in the case of unaudited quarterly financial statements, as permitted by Form 10-Q of the SEC) applied on a consistent basis during the periods and as of the dates involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of the Company and the Company's consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods shown (subject, in the case of unaudited quarterly financial statements, to normal year-end audit adjustments).

(b)                               Neither the Company nor any Company Subsidiary has any liability of any nature except liabilities (i) reflected or reserved against in the balance sheet dated October 30, 2015 (including the notes thereto) of the Company and the Company Subsidiaries included in the Company Reports filed prior to the date hereof, (ii) incurred in the ordinary course of business after October 30, 2015, (iii) incurred in connection with the Merger or any other transaction or agreement contemplated by this Agreement or (iv) that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(c)                                The Company maintains a system of "internal control over financial reporting" (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is effective in providing reasonable assurance (i) regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, (ii) that receipts and expenditures of Company and its Subsidiaries are being made only in accordance with authorizations of management and the Board, and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of Company's and its Subsidiaries' assets that would reasonably be expected to have a material effect on Company's financial statements.

(d)                               The Company maintains "disclosure controls and procedures" required by Rule 13a-15 or 15d-15 under the Exchange Act that are effective to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported in all material respects on a timely basis to the individuals responsible for the preparation of the Company's filings with the SEC and other public disclosure documents. The Company has disclosed, based on its most recent evaluation prior to the date of this Agreement, to the Company's outside auditors and the audit committee of the Company Board (1) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that are reasonably likely to adversely affect the Company's ability to record, process, summarize and report financial information and (2) any fraud, known to the Company, whether or not material, that involves management or other employees who have a significant role in the Company's internal controls over financial reporting.

(a)                               (1) All Tax Returns required to have been filed by the Company or any Company Subsidiary have been timely filed (taking into account any extension of time within which to file), and such filed Tax Returns are accurate and complete, (2) all Taxes (whether or not shown on any Tax Returns) that are due have been timely paid in full, except for Taxes which are being contested in good faith and for which adequate reserves have been established in the Company's financial statements in accordance with GAAP, and (3) the Company and each Company Subsidiary has complied with all Tax Laws.

(b)                                Neither the Company nor any Company Subsidiary has granted any extension or waiver of the limitation period applicable to any Tax that remains in effect.

(c)         (1) There are no pending or threatened in writing disputes, claims, audits, examinations, investigations or other proceedings by any taxing authority for any amount of unpaid Taxes asserted against the Company or any Company Subsidiary, (2) there is no deficiency with respect to Taxes which has been assessed in writing against the Company or any Company Subsidiary, except for deficiencies that have been satisfied by payment, settled or withdrawn, and (3) with respect to any tax years open for audit as of the date hereof, neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes or agreed to any extension of a period for the assessment of any Tax.

(i) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Non-U.S. Company Benefit Plan: (A) if intended to qualify for special tax treatment, meets all the requirements for such treatment, (B) that is required to be funded, book-reserved or secured by an insurance policy, is funded, book-reserved, or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles and (C) has been maintained in compliance with its terms and with all applicable Laws, and all required contributions and other payments required to be made by the Company or any Company Subsidiary have been made on or before their applicable due dates, (ii) there is no pending, or to the knowledge of the Company, threatened litigation relating to any Non-U.S. Company Benefit Plan and (iii) no Non-US Company Benefit Plan is subject to any audit or administrative proceeding by any tax authority or any Governmental Entity.

(i) the Company and the Company Subsidiaries are in material compliance with all material Environmental Laws, and, except for matters that have been fully resolved, as of the date of this Agreement, neither the Company nor any Company Subsidiary has received any written communication from a Governmental Entity or other Person that alleges that the Company or any Company Subsidiary is in material violation of any material Environmental Law or any Permit issued pursuant to any material Environmental Law (an "Environmental Permit");

(ii) with respect to all material Environmental Permits necessary to conduct the respective operations of the Company or the Company Subsidiaries as currently conducted, (1) the Company and each of the Company Subsidiaries have obtained and are in material compliance with, or have filed timely applications for, all such Environmental Permits, (2) all such Environmental Permits are valid and in good standing and (3) except for matters that have been fully resolved, as of the date of this Agreement, neither the Company nor any Company Subsidiary has received notice from any Governmental Entity seeking to modify, revoke or terminate, any such Environmental Permits;

(iii) except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, there are no Environmental Claims pending or, to the Knowledge of the Company, threatened in writing against the Company or any Company Subsidiary that have not been fully and finally resolved; and

(iv) except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and the Company Subsidiaries, taken as a whole, to the Knowledge of the Company, there are and have been no Releases of Hazardous Materials at any property currently or previously owned, leased or operated by the Company or any Company Subsidiary that would reasonably be expected to form the basis of any Environmental Claim against the Company or any Company Subsidiary, and neither the Company nor any Company Subsidiary has produced, processed, manufactured, generated, transported, or arranged for the transportation of, treated, handled, used, or stored any Hazardous Materials, except in compliance in all material respects with Environmental Laws.

Parent and Merger Sub represent and warrant to the Company as follows:

 

Prior to filing the Proxy Statement in preliminary form with the SEC, responding to any comment from the SEC with respect to, or any request from the SEC for amendments or supplements to, the Proxy Statement or mailing the Proxy Statement in definitive form to the stockholders of the Company, the Company shall provide Parent with an opportunity to review and comment on such document or response and consider in good faith any of Parent's comments thereon. Each Party shall use its commercially reasonable efforts to have the SEC advise the Company, as promptly as reasonably practicable after the filing of the preliminary Proxy Statement, that the SEC has no further comments on the Proxy Statement. Each of the Company and Parent shall also take any other action (except for qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under the Securities Act, the Exchange Act, any applicable foreign or state securities or "blue sky" Laws and the rules and regulations thereunder in connection with the Merger.

 

provided, that neither Parent nor the Company nor any of their respective Affiliates shall be required to commit, agree or submit (or offer to commit, agree or submit) to any action, term or condition in connection with its obligations under clauses (iii) or (iv) of this Section 6.03(c) that is not conditioned upon consummation of the Merger.

 

 

The Party desiring to terminate this Agreement pursuant to this Section 8.01 (other than pursuant to Section 8.01(a)) shall give written notice of such termination to the other Party specifying the provision of this Agreement pursuant to which such termination is being effected.

 

IN WITNESS WHEREOF, the Parties have duly executed this Agreement, each as of the date first written above.

 

	JOY GLOBAL INC.
	By:	/s/ Edward L. Doheny II
		Name: Edward L. Doheny II
		Title:   President & Chief Executive
		Officer

To induce the Company to enter into this Agreement, Komatsu Ltd. (the "Guarantor"), as primary obligor and not merely as a surety, hereby absolutely, unconditionally and irrevocably guarantees full and timely payment and performance of the duties, obligations and responsibilities of Parent and Merger Sub specified in this Agreement or arising out of or relating to this Agreement as and when required to be performed hereunder, including the obligation of Parent, subject to the terms and satisfaction of the conditions set forth in this Agreement, to, at or prior to the Effective Time, make available or cause to be made available to the Paying Agent cash in an amount equal to the Payment Fund and to pay any fees and expenses of Parent or Merger Sub, any damages arising from the breach by Parent or Merger Sub of their obligations under this Agreement and any other obligations of Parent or Merger Sub (collectively, the "Guaranteed Obligations"), and shall be deemed to have made, and shall be liable for, all of the representations and warranties, covenants and other agreements of Parent contained herein.

 

The Guarantor acknowledges and agrees that this guaranty is a primary obligation of the Guarantor, and that the Company shall be entitled to make any demand hereunder, and pursue all of its rights and remedies, against all or any of the Guarantor, Parent and Merger Sub, whether or not the Company has made any demand or pursued any remedies against Parent or Merger Sub. This is a guarantee of payment and performance, and not merely of collectability. The obligations of the Guarantor under this guaranty shall be enforceable against the Guarantor to the same extent as if the Guarantor were the primary obligor (and not merely a surety) under this Agreement.

 

The Guarantor hereby waives as to itself promptness, diligence, notice of the acceptance of this guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any Guaranteed Obligations incurred, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, and all suretyship defenses.

 

The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of the Company to assert any claim or demand or to enforce any right or remedy against Parent or Merger Sub; (ii) any change in the time, place or manner of payment of any of the Guaranteed Obligations or any waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of this Agreement made in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in connection with any of the Guaranteed Obligations; (iii) any change in the corporate existence, structure or ownership of the Guarantor, Parent, Merger Sub or any other Person interested in the transactions contemplated by this Agreement; (iv) the adequacy of any other means the Company may have of obtaining payment related to any of the Guaranteed Obligations, (v) any voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment, or other similar proceeding or any other inability to pay or perform affecting the Guarantor, Parent, Merger Sub or any other Person interested in the transactions contemplated by this Agreement; (vi) the existence of any claim, set-off or other right which Guarantor may have at any time against the Company, Parent, Merger Sub or any other Person interested in the transactions contemplated by this Agreement, whether in connection with such transactions or otherwise; (vii) the adequacy of any other means the Company may have of obtaining payment of the Guaranteed Obligations or (viii) the value, genuineness, validity, regularity, illegality or enforceability of this Agreement or any agreement or instrument related to this Agreement; provided, however, that the Guarantor shall be entitled to all rights, defenses and counterclaims of Parent and/or Merger Sub with respect to any Claim for enforcement of this Guaranty.

 

This Guaranty may not be revoked or terminated and shall remain in full force and effect and shall be binding on Guarantor, its successors and assigns until all amounts payable by Guarantor under this Guaranty with respect to the Guaranteed Obligations have been indefeasibly paid in full.

 

The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by this Agreement and that the waivers by the Guarantor set forth in this Guarantee are knowingly made in contemplation of such benefits. For the avoidance of doubt, if Parent or Merger Sub is obligated to consummate the Merger pursuant to the terms and conditions of this Agreement, no further act or thing need occur to establish the Guarantor's liability hereunder, and no act or thing, except full performance of the Guaranteed Obligations, shall in any way exonerate or discharge the obligations of the Guarantor hereunder or modify, limit or release the Guarantor's liability hereunder. The Company may, at any time, take any and all actions available hereunder or under applicable law to enforce Guarantor's obligations hereunder, regardless of whether action is brought against Parent or Merger Sub or whether Parent or Merger Sub is joined in any such action or actions.

 

All payments by the Guarantor pursuant to this Guaranty shall be made in lawful money of the United States in immediately available funds. Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. In the event that any payment hereunder is rescinded or must otherwise be returned for any reason whatsoever, Guarantor shall remain liable hereunder as if such payment had not been made.

 

The Guarantor may not assign or delegate its rights, interests or obligations hereunder to any other person (by operation of law or otherwise) without the prior written consent of the Company.

The terms of Sections 9.02, 9.07 and 9.11 of this Agreement shall apply to this Guaranty mutatis mutandis.

 

	KOMATSU LTD.
	By:	/s/ Tetsuji Ohashi
		Name: Tetsuji Ohashi
		Title: President and CEO

 

 

Section 1.01 Certain Defined Terms. For purposes of this Agreement, each of the following terms has the meaning specified in this Section 1.01 of Exhibit A:

 

"Affiliate" of any Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. For purposes of this definition, "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise.

 

"Antitrust Laws" means the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, all applicable state, foreign or supranational antitrust Laws and all other applicable Laws issued by a Governmental Entity that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.

 

"Business Day" means any day except for (a) a Saturday or a Sunday or (b) a day on which banking and savings and loan institutions are authorized or required by Law to be closed in Milwaukee, Wisconsin or New York, New York.

 

"Cause" means (a) "Cause" as defined in an employee's employment, change in control or severance agreement or (b) if there is no such agreement or it does not define "Cause", (i) conviction of an employee for committing a felony under U.S. federal or state law or an equivalent offense under the laws of any non-U.S. jurisdiction, (ii) failure on the part of the employee to perform his or her employment duties in any material respect or (iii) employee's material violation of the written policies of the Company or a Company Subsidiary; provided that, termination of an employee's employment pursuant to clause (b)(ii) or (iii) shall be considered to be with "Cause" only if (x) the Company provides notice to the employee of the basis for Cause and (y), if the basis for Cause is capable of remedy, the employee fails to remedy such condition within fifteen (15) days following receipt of such notice.

 

 "Claim" means any demand, claim, suit, action, legal proceeding (whether at law or in equity) or arbitration.

 

"Code" means the Internal Revenue Code of 1986, as amended.

 

"Company Benefit Plan" means each means each compensatory or employee benefit plan, program, agreement or arrangement, including pension, retirement, profit-sharing, deferred compensation, stock option, change in control, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, vacation, bonus or other incentive plans, medical, retiree medical, vision, dental or other health plans, life insurance plans, and each other material employee benefit plan or fringe benefit plan, including any "employee benefit plan" as that term is defined in Section 3(3) of ERISA, in each case, whether oral or written, funded or unfunded, or insured or self-insured, (A) that is maintained by the Company or any Company Subsidiary for the benefit of any Company Personnel, or (B) to which the Company or any Company Subsidiary contributes or is obligated to contribute or would reasonably be expected to have any Liability, other than a Multiemployer Plan and other than any plan or program maintained by a Governmental Entity to which the Company or any of its Affiliates contribute pursuant to applicable Laws.

 

"Company IP Agreements" means all licenses, sublicenses, consent to use agreements, covenants not to sue and permissions and other Contracts, including the right to receive royalties or any other consideration, whether written or oral, concerning rights in Intellectual Property and to which the Company or any of the Company Subsidiaries is a party or under which the Company or any of the Company Subsidiaries is a licensor or licensee.

 

"Company Material Adverse Effect" means any change or effect that, individually or in the aggregate, (1) has or would reasonably be expect to have a material adverse effect on the business, financial condition or results of operations of the Company and the Company Subsidiaries, taken as a whole or (2) would reasonably be expected to prevent or materially impede, interfere with or delay the Company's timely consummation of, the transactions contemplated by this Agreement; provided that no change or effect resulting from or arising out of any of the following, individually or in the aggregate, shall constitute or be taken into account in determining whether a Company Material Adverse Effect has occurred: (a) any change or condition affecting the mining or heavy equipment manufacturing and servicing industries in North America or in any other region where such industries exist, including the coal mining and coal mining heavy equipment manufacturing and servicing industries in North America or in any other region where such industries exist or any industry in which the Company or any Company Subsidiary operates or does business whether in North America or in any other region where such industry exists (including, in each case, any changes in the operations thereof); (b) any change affecting any economic, legislative or political condition or any change affecting any securities, credit, financial, commodities or other capital markets condition, in each case in the United States, in any foreign jurisdiction or in any specific geographical area in which the Company or any Company Subsidiary operates or does business; (c) any failure in and of itself by the Company or any Company Subsidiary to meet any internal or public projection, budget, forecast, estimate or prediction in respect of revenues, earnings or other financial or operating metrics for any period (it being understood that the changes and effects giving rise to or contributing to such failure may (if not otherwise excluded hereby) constitute or be taken into account in determining whether a Company Material Adverse Effect has occurred); (d) any change resulting from the announcement, execution or delivery of this Agreement, including (i) any action taken by the Company or any Company Subsidiary that is required or contemplated by this Agreement, or is consented to by Parent or (ii) any Claim arising out of or related to this Agreement (including stockholder litigation); (e) any change or condition affecting the market for minerals, ores, refined or unrefined products thereof or other commodities, including any change in the price or availability of minerals, ores, refined or unrefined products thereof or other commodities; (f) any change in the market price, credit rating or trading volume of shares of Company Common Stock on the NYSE or any change affecting the ratings or the ratings outlook for the Company or any Company Subsidiary (it being understood that the changes and effects giving rise to or contributing to any such change may (if not otherwise excluded hereby) constitute or be taken into account in determining whether a Company Material Adverse Effect has occurred), (g) any change in applicable Law, regulation or GAAP (or authoritative interpretation thereof); (h) geopolitical conditions, the outbreak or escalation of hostilities, any act of war, sabotage or purported terrorism, or any escalation or worsening of any such act of war, sabotage or purported terrorism threatened or underway as of the date of this Agreement; (i) any hurricane, strong winds, ice event, fire, tornado, tsunami, flood, earthquake or other natural disaster or weather-related event, circumstance or development, (j) any change or effect arising from any requirements imposed by any Governmental Entities as a condition to obtaining the Required Statutory Approvals and (k) any action required or permitted to be taken by the Company or any Company Subsidiary set forth on the Company Disclosure Schedule; provided, however, that any change or effect set forth in clauses (a), (b), (e) and (g) above may be taken into account in determining whether a Company Material Adverse Effect has occurred solely to the extent such change or affect has a materially disproportionate adverse effect on the Company and the Company Subsidiaries, taken as a whole, as compared to other participants in the relevant business industries in which the Company and its Subsidiaries operate (in which case, only the incremental disproportionate impact may be taken into account in determining whether there has been, or would be, a Company Material Adverse Effect).

 

"Company Option" means any option to purchase shares of Company Common Stock granted by the Company under a Company Stock Plan.

 

"Company Performance Share Award" means any performance share award relating to shares of Company Common Stock granted by the Company under a Company Stock Plan.

 

"Company Personnel" means any current or former director, officer, or employee of the Company or any Company Subsidiary.

 

"Company Rollover RSU Award" means a Company RSU Award granted after the date of this Agreement to any Company Personnel (other than any non-employee director of the Company).

 

"Company RSU Award" means any restricted share unit award relating to shares of Company Common Stock granted by the Company under a Company Stock Plan that is or was subject solely to time-based vesting (including any vested restricted share unit award held by a current or former non-employee director for which settlement has been deferred).

 

"Company Stock Plan" means the 2016 Omnibus Incentive Compensation Plan and the 2007 Stock Incentive Plan of the Company as amended and in effect from time to time.

 

"Confidentiality Agreement" means that certain letter agreement, dated as of May 1, 2016, by and between the Guarantor and the Company.

 

"Contract" means any written or oral contract, lease, license, evidence of indebtedness, mortgage, indenture, purchase order, binding bid, letter of credit, security agreement, undertaking or other agreement that is legally binding.

 

"Employee Stock Purchase Plans" means the International Employee Stock Purchase and the Employee Stock Purchase Plan of the Company as amended and in effect from time to time.

 

"Environmental Claim" means any Claim against, or any investigation as to which the Company or any Company Subsidiary has received written notice of, the Company or any Company Subsidiary asserted by any Person alleging liability (including potential liability for investigatory costs, cleanup costs, governmental response costs, natural resources damages, property damages, personal injuries, or penalties) or responsibility arising out of, based on or resulting from (a) the presence or Release of or exposure to any Hazardous Materials at any location, whether or not owned or operated by the Company or any Company Subsidiary, or (b) any violation or alleged violation of Environmental Law or any Environmental Permit.

 

"Environmental Laws" means all applicable Laws issued, promulgated by or with any Governmental Entity, and any order or binding agreement with any Governmental Entity, relating to pollution or protection of or damage to the environment (including ambient and indoor air, surface water, groundwater, land surface, subsurface and sediments), natural resources, endangered or threatened species or the climate as it relates to exposure to hazardous or toxic materials, including Laws relating to the exposure to Hazardous Materials.

 

"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.

 

"ERISA Affiliate" means, with respect to any entity, trade or business, any other entity, trade or business that is, or was at the relevant time, a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes or included the first entity, trade or business.

 

"Good Reason" means (a) "Good Reason" as defined in the employee's employment, change in control or severance agreement or (b) if there is no such agreement or it does not define "Good Reason", the occurrence of any of the following events without the employee's written consent: (i) a reduction in the employee's base salary or base wage rate, or (ii) a relocation of the employee's principal place of employment by more than fifty (50) miles; provided, that an employee's resignation shall be considered to be for "Good Reason" under clause (b) only if (x) such employee provides notice to the Company of the act or omission constituting Good Reason within thirty (30) days following the occurrence of such act or omission, (y) the Company fails to remedy such act or omission within thirty (30) days following receipt of such notice, and (z) such employee resigns within thirty (30) days after the end of such cure period.

 

 "Governmental Entity" means any U.S. or foreign federal, state, provincial or local governmental authority, court, government or self-regulatory organization, commission, tribunal or organization or any regulatory, administrative or other agency, or any political or other subdivision, department or branch of any of the foregoing, including any governmental, quasi-governmental or nongovernmental body administering, regulating, or having general oversight over any energy-related markets, or any court, arbitrator, arbitration panel or similar judicial body.

 

"Hazardous Materials" means any chemical, material, substance, product, mixture or waste that is regulated as a pollutant, a contaminant, hazardous or toxic under any Environmental Law and petroleum or petroleum-derived products, radon, radioactive materials or wastes, asbestos in any form, lead or lead-containing materials, urea formaldehyde foam insulation and polychlorinated biphenyls.

 

"Indebtedness" means, with respect to any Person, without duplication, (a) all obligations of such Person for borrowed money (other than intercompany indebtedness), (b) all obligations of such Person evidenced by bonds, debentures, notes, commercial paper or similar instruments, (c) all obligations of such Person evidenced by letters of credit, bankers' acceptances or similar facilities to the extent drawn upon by the counterparty thereto, and (d) all guarantees or other assumptions of liability for any of the foregoing.

 

"Intellectual Property" means all intellectual property and industrial property rights of any kind or nature, including all U.S. and foreign trademarks, service marks, service names, internet domain names, trade dress and trade names, and all goodwill associated therewith and symbolized thereby, patents and all related continuations, continuations-in-part, divisionals, reissues, reexaminations, substitutions, and extensions thereof, trade secrets, registered and unregistered copyrights and works of authorship, proprietary rights in databases to the extent recognized in any given jurisdiction, and registrations and applications for registration of any of the foregoing.

 

"Judgment" means a judgment, order, decree, injunction, ruling, writ, assessment or arbitration award of a Governmental Entity of competent jurisdiction.

 

"Knowledge" means (i) with respect to the Company, the actual knowledge of Edward Doheny, James Sullivan, Sean Major, Johannes Maritz, Matt Kulasa, Randy White (but solely with respect to Sections 3.05, 3.06(a), 3.07, 3.10, 3.11, 3.14, 3.16 and 3.17), Bryan Johnson, Martin Pittorino, John Koetz, Peter Salditt and Sean Fitzgerald after due inquiry and (ii) with respect to the Parent or the Merger Sub, the actual knowledge of Rod Schrader, Masayuki Moriyama, Gary Kasbeer and Ed Bathelt after due inquiry.

 

"Law" means any domestic or foreign, federal, state, provincial or local statute, law, ordinance, rule, binding administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree or other requirement of any Governmental Entity, including the rules and regulations of the NYSE and the DGCL.

 

"Liens" means, with respect to any property or asset, all pledges, liens, mortgages, charges, encumbrances, hypothecations, options, rights of first refusal, rights of first offer and security interests of any kind or nature whatsoever.

 

"Merger Consideration" means $28.30 in cash.

 

"Non-U.S. Company Benefit Plan" means each Company Benefit Plan that is maintained outside the jurisdiction of the United States.

 

"NYSE" means the New York Stock Exchange.

 

"ordinary course of business" means the ordinary course of business consistent with past practice.

"Organizational Documents" means any corporate, partnership or limited liability organizational documents, including certificates or articles of incorporation, bylaws, certificates of formation, operating agreements (including limited liability company agreement and agreements of limited partnership), certificates of limited partnership, partnership agreements, stockholder agreements and certificates of existence, as applicable.

"Permit" means a franchise, license, permit, authorization, variance, exemption, order, registration, clearance or approval of a Governmental Entity.

 

"Permitted Liens" means (a) statutory Liens for current Taxes or other governmental charges not yet due and payable or the amount or validity of which is being contested in good faith (provided appropriate reserves required pursuant to GAAP have been made in respect thereof), (b) mechanics', carriers', workers', repairers' and similar statutory Liens arising or incurred in the ordinary course of business for amounts which are not delinquent or which are being contested by appropriate proceedings (provided appropriate reserves required pursuant to GAAP have been made in respect thereof), (c) covenants, conditions, restrictions, easements and other similar non-monetary matters of record affecting title to such Person's owned or leased real property, which do not materially impair the occupancy or use of such real property for the purposes for which it is currently used in connection with such Person's businesses, (d) any right of way or easement related to utilities, public roads and highways, (e) Liens arising under workers' compensation, unemployment insurance, social security, retirement and similar laws and (f) Liens that have not had or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

"Person" means any natural person, firm, corporation, partnership, company, limited liability company, trust, joint venture, association, Governmental Entity or other entity.

 

"Qualifying Termination" means a termination of an employee's employment by the Company, the Surviving Corporation, Parent or any of their respective Affiliates without Cause or a resignation by an employee for Good Reason.

"Release" means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment (including ambient and indoor air, surface water, groundwater, land surface, subsurface and sediments).

 

"SR Drive Technology" means the structure or methods of using or manufacturing any drive system making use of a switched reluctance motor, as well as all hardware and software components and Intellectual Property necessary to use the system in operation in heavy equipment, including but not limited to kinetic energy storage, controller, power source, power conversion and braking components.

 

"Subsidiary" of any Person means another Person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing body (or, if there are no such voting interests, more than 50% of the equity interests of which) is owned directly or indirectly by such first Person.

 

"Tax Return" means all Tax returns, reports, or filings required to be filed with a Governmental Entity responsible for the administration of Taxes, including any information return, claim for refund, amended return or declaration of estimated Taxes.

 

"Taxes" means all federal, state, local or foreign taxes of any kind imposed by any Governmental Entity (including income, payroll, employment, unemployment, severance, environmental, occupation, premium, windfall profits, intangibles, license, customs, duties, fees, assessments or charges of any kind whatsoever, gross receipts, franchise, alternative minimum, sales, use, transfer, value added, VAT, excise, stamp, real property, personal property, capital stock, social security, withholding, and estimated taxes), together with all interest, penalties and additions imposed with respect to such amounts and any interest in respect of such additions or penalties.

 

"U.S. Company Benefit Plan" means each Company Benefit Plan that is not a Non-U.S. Company Benefit Plan.

Section 1.02 Other Defined Terms. In addition to the defined terms set forth in Section 1.01 of this Exhibit A, each of the following capitalized terms has the respective meaning specified in the Section set forth opposite such term below: