UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant To Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): April 5, 2017
JOY GLOBAL INC.
(Exact name of registrant as specified in its charter)
|
Delaware (State or other jurisdiction of incorporation) |
001-09299 (Commission File Number) |
39-1566457 (IRS Employer Identification No.) |
100 E. Wisconsin Avenue, Suite 2780
Milwaukee, WI 53202
(Address of principal executive offices, including zip code)
Registrant’s telephone number, including area code: (414) 319-8500
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under Exchange Act (17 CFR 240.13e-4(c)) |
Introductory Note
This Current Report on Form 8-K is being filed in connection with the closing on April 5, 2017 (the “Closing Date”) of the transactions contemplated by that certain Agreement and Plan of Merger, dated as of July 21, 2016 (the “Merger Agreement”), by and among Joy Global Inc. (the “Company”), Komatsu America Corp., a Georgia corporation (“Komatsu”), Pine Solutions Inc., a Delaware corporation and wholly owned subsidiary of Komatsu (“Merger Sub”), and (solely for the purposes specified in the Merger Agreement) Komatsu Ltd., a Japanese joint stock company (“Parent”), pursuant to which Merger Sub merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly-owned subsidiary of Komatsu.
| Item 1.02 | Termination of a Material Definitive Agreement. |
On April 5, 2017, in connection with and substantially concurrent with the Merger, the Company terminated the Amended and Restated Credit Agreement among the Company, as Borrower, certain of its domestic subsidiaries, as Guarantors, Bank of America, N.A., as Administrative Agent, JPMorgan Chase Bank, N.A. and Mizuho Bank (USA), as Co-Syndication Agents, and the lenders party thereto (the “Term Loan Agreement”). The Term Loan Agreement, which would have matured on July 29, 2019, had an outstanding balance of approximately $337 million plus accrued interest at the time of its termination.
On April 5, 2017, in connection with and substantially concurrent with the Merger, the Company terminated the Second Amended and Restated Credit Agreement among the Company, as Borrower, certain of its domestic subsidiaries, as Guarantors, Bank of America, N.A., as Administrative Agent, a Swing Line Lender and an L/C Issuer, JPMorgan Chase Bank, N.A., as a Swing Line Lender and an L/C Issuer, Mizuho Bank, Ltd., as an L/C Issuer, and the lenders party thereto (the “Revolving Credit Agreement”). The Revolving Credit Agreement provided for an aggregate revolving commitment of up to $850 million and would have matured on July 29, 2019. The Revolving Credit Agreement also provided that the Company could request an increase of up to $250 million of additional aggregate revolving commitments, subject to terms and conditions contained in the Revolving Credit Agreement. In connection with the termination of the Revolving Credit Agreement, the Company entered into a replacement letter of credit facility with an aggregate revolving commitment of up to $150 million with the same lending group. The Company does not consider this facility to be material.
| Item 2.01 | Completion of Acquisition or Disposition of Assets. |
On the Closing Date, pursuant to the terms of the Merger Agreement, Merger Sub merged with and into the Company, with the Company surviving the Merger as a wholly-owned subsidiary of Komatsu.
At the effective time of the Merger (the “Effective Time”), pursuant to the Merger Agreement, each share of common stock, $1.00 par value, of the Company (“Joy Global Common Stock”) issued and outstanding immediately prior to the Effective Time of the Merger (other than dissenting shares and shares owned by the Company, Komatsu or any of their respective subsidiaries) was cancelled and converted into the right to receive $28.30 per share in cash, without interest, and subject to any applicable withholding taxes. The transaction resulted in the payment of approximately $2.9 billion in merger consideration.
In addition, the Company’s stock options (whether vested or unvested), the Company’s restricted share unit awards that were granted prior to the date of the Merger Agreement, the Company’s restricted share unit awards that were held by non-employee directors (whether granted to such director prior to or after the date of the Merger Agreement) and the Company’s performance share awards that were outstanding as of immediately prior to the Effective Time were canceled in consideration for the right to receive cash payments. The Company’s restricted share unit awards granted after the date of the Merger Agreement (other than any such award granted to non-employee directors), that were outstanding as of immediately before the Effective Time were converted into long-term incentive awards that entitle each holder to receive a fixed amount in cash.
The foregoing description of the Merger and the Merger Agreement is not complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which was filed with the Securities and Exchange Commission on July 21, 2016 on Form 8-K, and which is filed herewith as Exhibit 2.1 and is incorporated herein by reference.
| Item 3.01 | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
On April 5, 2017, the Company notified the New York Stock Exchange (the “NYSE”) that the Merger had closed and requested that the NYSE file with the Securities and Exchange Commission (the “SEC”) a Form 25 to delist and deregister the Joy Global Common Stock under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Trading of the Company’s common stock on the NYSE will be suspended prior to the opening of trading on April 6, 2017.
Additionally, the Company intends to file with the SEC certifications on Form 15 under the Exchange Act requesting the deregistration of the Company’s common stock under Section 12(g) of the Exchange Act and the suspension of the Company’s reporting obligations under Section 15(d) of the Exchange Act as promptly as practicable.
The information set forth under Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.01.
| Item 3.03 | Material Modification to the Rights of Security Holders. |
On April 5, 2017, in connection with and substantially concurrent with the Merger, Parent entered into a supplemental indenture (the “Supplemental Indenture”) to the Indenture, dated as of November 10, 2006, between the Company and Wells Fargo Bank, National Association, as trustee (as amended and supplemented from time to time, the “Indenture”), which governs the Company’s 5.125% Senior Notes due 2021 and 6.625% Senior Notes due 2036 (collectively, the “Notes”).
The Supplemental Indenture provides for Parent’s unconditional guarantee of the Company’s payment obligations under the Indenture with respect to the Notes. As previously reported, as a consequence of its guarantee, Parent will post on its website annual, quarterly and event-specific reports (prepared under applicable Japanese law and translated into English) that it is required to publish under the Financial Instruments and Exchange Act of Japan and the rules governing timely disclosure of corporate information by issuers of listed securities on the Tokyo Stock Exchange. These reports will be made available to holders of the Notes in lieu of the Company’s existing annual, quarterly and current reporting, which the Company will cease producing for so long as the Parent’s guarantee remains in force.
The foregoing description of the Supplemental Indenture does not purport to be complete and is subject to and qualified in its entirety by reference to the Supplemental Indenture, a copy of which is filed herewith as Exhibit 4.1 and is incorporated herein by reference.
As a result of the termination of the Term Loan Agreement and the Revolving Credit Agreement described in Item 1.02 above, the subsidiary guarantees of the Notes will be automatically and unconditionally released without any action on the part of the trustee or the holders of the Notes.
The information set forth under Items 2.01, 3.01 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
| Item 5.01 | Changes in Control of Registrant. |
The information set forth under Items 2.01, 3.03 and 5.02 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
At the Effective Time, the Company’s directors ceased serving as directors pursuant to the terms of the Merger Agreement. In addition, at the Effective Time, the employment of Edward L. Doheny II, President and Chief Executive Officer, James M. Sullivan, Chief Financial Officer, and Sean D. Major, Executive Vice President, General Counsel and Secretary were terminated. These employment terminations were treated as severance qualifying terminations for purposes of the employment agreements between each officer and the Company.
At or immediately after the Effective Time, the following persons, all of whom have been employees of Komatsu Ltd. or affiliates, became directors or officers of the Company: Masayuki Moriyama, Chairman of the Board of Directors; Jeffrey Dawes, President and Chief Executive Officer and Director; Korekiyo Yanagisawa, Executive Vice President and Chief Operating Officer and Director; Gary Kasbeer, Director; Yasuji Nishiura, Director; Kazuhiko Iwata, Technical Director; Terumi Sasaki, Executive Vice President and Chief Financial Officer and Director; and Edmund Bathelt, Executive Vice President, General Counsel and Secretary and Chief Compliance Officer.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
As of the Effective Time, the Amended and Restated Certificate of Incorporation of the surviving corporation was amended and restated to be the same as the Certificate of Incorporation of Merger Sub, as in effect immediately prior to the Effective Time, except that the name of the surviving corporation was changed to be “Joy Global Inc.” As of the Effective Time, the Amended and Restated Bylaws of the surviving corporation were amended and restated to be the same as the bylaws of Merger Sub, as in effect immediately prior to the Effective Time.
Immediately after the Effective Time, the Amended and Restated Certificate of Incorporation of Joy Global Inc. was further amended, and its Amended and Restated Bylaws further amended and restated. Copies of the Amended and Restated Certificate of Incorporation, Certificate of Amendment and Amended and Restated Bylaws as currently in effect are filed as Exhibits 3.1, 3.2 and 3.3 of this Current Report on Form 8-K, respectively, and are incorporated herein by reference.
Pursuant to the bylaws, as amended and restated, the fiscal year changed to begin on April 1 of each year and end on March 31 of the subsequent year.
The information regarding the Merger and the Merger Agreement set forth under Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit No. | Exhibit | |
| 2.1 | Agreement and Plan of Merger, dated as of July 21, 2016, by and among Joy Global Inc., a Delaware corporation, Komatsu America Corp., a Georgia corporation, Pine Solutions Inc., a Delaware corporation and wholly owned subsidiary of Komatsu, and (solely for the purposes specified in the Merger Agreement) Komatsu Ltd., a Japanese joint stock company (incorporated herein by reference to Exhibit 2.1 of the Current Report on Form 8-K, filed by Joy Global Inc. on July 21, 2016). | |
| 3.1 | Amended and Restated Certificate of Incorporation of Joy Global Inc. | |
| 3.2 | Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Joy Global Inc. | |
| 3.3 | Amended and Restated Bylaws of Joy Global Inc. | |
| 4.1 | Sixth Supplemental Indenture, dated as of April 5, 2017, among the Company, Komatsu Ltd. and Wells Fargo Bank, National Association, as trustee. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Joy Global Inc. | ||
| By: | /s/ Edmund Bathelt | |
| Edmund Bathelt | ||
| Executive Vice President and General Counsel and Secretary | ||
Dated: April 5, 2017
EXHIBIT INDEX
| Exhibit No. | Exhibit | |
| 2.1 | Agreement and Plan of Merger, dated as of July 21, 2016, by and among Joy Global Inc., a Delaware corporation, Komatsu America Corp., a Georgia corporation, Pine Solutions Inc., a Delaware corporation and wholly owned subsidiary of Komatsu, and (solely for the purposes specified in the Merger Agreement) Komatsu Ltd., a Japanese joint stock company (incorporated herein by reference to Exhibit 2.1 of the Current Report on Form 8-K, filed by Joy Global Inc. on July 21, 2016). | |
| 3.1 | Amended and Restated Certificate of Incorporation of Joy Global Inc. | |
| 3.2 | Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Joy Global Inc. | |
| 3.3 | Amended and Restated Bylaws of Joy Global Inc. | |
| 4.1 | Sixth Supplemental Indenture, dated as of April 5, 2017, among the Company, Komatsu Ltd. and Wells Fargo Bank, National Association, as trustee. |
Exhibit 3.1
AMENDED AND RESTATED
Certificate of Incorporation
of
JOY GLOBAL INC.
ARTICLE I
The name of the corporation is Joy Global Inc. (the “Corporation”).
ARTICLE II
The address of the Corporation’s registered office in the State of Delaware is c/o The Corporation Trust Corporation, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of the Corporation’s registered agent at such address is The Corporation Trust Corporation.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).
ARTICLE IV
1. Common Stock. The total number of shares of all classes of stock which the Corporation shall have authority to issue is 5,000 shares of Common Stock, par value $1.00 per share (the “Common Stock”). All shares of Common Stock will be identical and will entitle the holders thereof to the same rights and privileges.
2. Voting Rights. The holders of Common Stock will be entitled to one vote per share on all matters to be voted on by the Corporation’s stockholders, except as otherwise required by law. There shall be no cumulative voting.
3. Liquidation Rights. In the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of the Common Stock shall be entitled to share, ratably according to the number of shares of Common Stock held by them, in the remaining assets of the Corporation available for distribution to its stockholders.
ARTICLE V
To the fullest extent permitted by DGCL as the same now exists or may hereafter be amended, a director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duties as a director. Any repeal or modification of this Article Fifth shall not adversely affect any right or protection of a director existing at the time of such repeal or modification.
ARTICLE VI
The Board of Directors, acting by majority vote, is expressly authorized to adopt, amend or repeal the bylaws of the Corporation.
ARTICLE VII
The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are subject to this reservation.
Exhibit 3.2
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
JOY GLOBAL INC.
(Pursuant to Section 242 of the General Corporation
Law of the State of Delaware)
Joy Global Inc., organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”) does hereby certify:
1. The Board of Directors of the Corporation adopted a resolution by unanimous written consent in lieu of a meeting in accordance with Section 141(f) and Section 242 of the General Corporation Law of the State of Delaware, to amend and restate Article III of the Amended and Restated Certificate of Incorporation of the Corporation to read, in its entirety, as follows:
“ARTICLE III: The purpose of the Corporation is:
(a) to manufacture, buy, sell and deal in machinery, equipment and appliances of all kinds and class, including but not limited to, power shovels, excavators, mining equipment and industrial electrical equipment, and in parts and accessories therefor; and
(b) to engage in any other lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).
2. That pursuant to a resolution of the Board of Directors, this amendment was submitted to the sole stockholder of the Corporation for its approval and was approved by it in accordance with the provisions of Sections 228 and 242 of the General Corporation Law.
3. That this amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
4. All other provisions of the Corporation’s Amended and Restated Certificate of Incorporation shall remain in full force and effect.
[Signature Page Follows]
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed this 5th day of April 2017.
| By: | /s/ Edmund Bathelt | |
| Name: Edmund Bathelt | ||
| Title: Executive Vice President and | ||
| General Counsel and Secretary |
[Signature Page to Certificate of Amendment]
Exhibit 3.3
AMENDED AND RESTATED BYLAWS
of
JOY GLOBAL INC.
(hereinafter, the “Corporation”)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation in the State of Delaware, as set forth in the Certificate of Incorporation, shall be established and maintained at Corporation Trust Corporation, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of the registered agent of the Corporation at such address shall be Corporation Trust Corporation. The principal business office of the Corporation shall be located in the City of Milwaukee, County of Milwaukee, State of Wisconsin. The registered office of the Corporation required by the Wisconsin Business Corporation Law may be, but need not be, the same as its place of business in the State of Wisconsin, and the address of the registered office may be changed from time to time by the Board of Directors.
Section 2. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine.
ARTICLE II
MEETING OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meeting of Stockholders shall be held on such date and at such time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which meeting the stockholders shall elect a Board of Directors by a plurality vote, and transact such other business as may properly be brought before the meeting.
Section 3. Special Meetings. Special Meetings of Stockholders, for any purpose or purposes, may be called by the CEO, President or Secretary, and shall be called by any such officer at the request in writing of a majority of the Board of Directors. Such request shall state the purpose or purposes of the proposed meeting.
Section 4. Notice of Meetings. Written notice of an Annual Meeting or Special Meeting stating the place, date, and hour of the meeting and in the case of a Special Meeting, the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting.
Section 5. Quorum. Except as otherwise provided by law or by the Certificate of Incorporation, the holders of a majority of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, acting by the affirmative vote of a majority of the outstanding shares that are present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented.
Section 6. Voting. Any questions brought before any meeting of stockholders shall be decided by a majority vote of the number of shares entitled to vote, present in person or represented by proxy. Such votes may be cast in person or by proxy, but no proxy shall be voted on or after three years from its date, unless such proxy provides for a longer period.
Section 7. Action by Consent. Any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The number of directors that shall constitute the Board of Directors shall be not less than one nor more than ten. The initial directors shall be determined by resolution of the sole incorporator of the Corporation or the Board of Directors, as the case may be. Thereafter, within the limits specified above, the number of directors shall be determined by the Board of Directors or by the stockholders. Except as provided in Section 2 of this Article, directors shall be elected by a plurality of the votes cast at Annual Meetings of Stockholders, and each director so elected shall hold office until the next Annual Meeting and until his successor is duly elected and qualified, or until his earlier resignation or removal.
Section 2. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by the stockholders, a majority vote of all directors, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier resignation or removal.
Section 3. Committees. The Board of Directors may designate one or more committees, which committees shall, to the extent provided in the resolution of the Board of Directors establishing such a committee, have all authority and may exercise all the powers of the Board of Directors in the management of the business and affairs of the Corporation to the extent lawful under the General Corporation Law of the State of Delaware.
Section 4. Duties and Powers. The business of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by the stockholders.
Section 5. Meetings. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors. Special meetings of the Board of Directors may be called by the president or any one director with one day’s notice to each director, either personally or by mail, telephone, email, or facsimile transmission.
Section 6. Quorum; Board Action. Except as may be otherwise specifically required by law, the Certificate of Incorporation or these Bylaws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business, and the affirmative vote of a majority of the entire Board of Directors shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 7. Actions of Board. Unless otherwise provided by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all the members of the Board of Directors or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings, or transmission or transmissions, are filed with the minutes of proceedings of the Board of Directors or committee.
Section 8. Compensation. The Corporation shall reimburse the reasonable expenses incurred by members of the Board of Directors in connection with attendance at meetings of the Board of Directors and of any committee on which such member serves; provided, that the foregoing shall not preclude any director from serving the Corporation in any other capacity and receiving compensation therefore.
Section 9. Removal. Unless otherwise restricted by the Certificate of Incorporation or by law, any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors.
Section 10. Participation in a Meeting by Telephone. Members of the Board of Directors or any committee of directors may participate in a meeting of the Board or committee by means of conference telephone or similar communication equipment by means of which all persons participating in the meeting can hear each other, and participating in a meeting pursuant to this Section 10 shall constitute presence in person at such meeting.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the Corporation shall be a Chairman of the Board, a Chief Executive Officer, a President, a Chief Financial Officer, a Chief Compliance Officer, one or more Vice Presidents (the number thereof to be determined by the Board of Directors), a Secretary, a Treasurer, a Controller and a General Counsel, each of whom shall be elected by the Board of Directors. The Board of Directors may also elect a Chief Operating Officer and one or more Group Presidents and may designate one or more of the Vice Presidents as Executive Vice Presidents or Senior Vice Presidents. The officers of the Corporation shall have the usual powers and shall perform the usual duties incident to their respective offices. Such other officers and assistant officers and agents as may be deemed necessary may be elected or appointed by the Board of Directors. Any two or more offices may be held by the same person, except the offices of President and Secretary, and the offices of President and Vice President.
Section 2. Removal.
Any officer or agent elected or appointed by the Board of Directors may be removed by the Board of Directors with or without cause whenever in its judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment shall not of itself create contract rights.
Section 3. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the Board of Directors for the unexpired portion of the term.
ARTICLE V
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate of Incorporation or these Bylaws, to be given to any director, member of a committee or stockholder, such notice may be given by mail, addressed to such director, member of a committee or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Written notice may also be given personally, electronic mail or facsimile transmission.
Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate of Incorporation or these Bylaws, to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, may be declared by the Board of Directors at any regular or special meeting, and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.
Section 2. Fiscal Year. The fiscal year of the Corporation shall begin on April 1 of each year and end on March 31 of the subsequent year.
Section 3. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VII
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 1. Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director or an officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an “Indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such Indemnitee in connection therewith; provided, however, that, except as provided in Section 3 of this Article with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such Indemnitee in connection with a proceeding (or part thereof) initiated by such Indemnitee only if such proceeding (or part thereof) was authorized by the board of directors of the Corporation.
Section 2. Right to Advancement of Expenses. The right to indemnification conferred in section 1 of this Article shall include the right to be paid by the Corporation the expenses (including attorney's fees) incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an Indemnitee in his capacity as a director or officer (and not in any other capacity in which service was or is rendered by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that such Indemnitee is not entitled to be indemnified for such expenses under this Section 2 or otherwise. Such undertaking shall be an unlimited, unsecured general obligation of the Indemnitee, and shall be accepted without reference to such Indemnitee’s ability to make repayment. The rights to indemnification and to the advancement of expenses conferred in Sections 1 and 2 of this Article shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the Indemnitee's heirs, executors and administrators. Any repeal or modification of any of the provisions of this Article shall not adversely affect any right or protection of an Indemnitee existing at the time of such repeal or modification.
Section 3. Right of Indemnitees to Bring Suit. If a claim under Section 1 or 2 of this Article is not paid in full by the corporation within sixty (60) days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty (20) days, the Indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any-such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee shall also be entitled to be paid the expenses of prosecuting or defending such suit. In (i) any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to an advancement of expenses), and (ii) any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that, the Indemnitee has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law. Neither the failure of the Corporation (including its board of directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its board of directors, independent legal counsel, or its stockholders) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article or otherwise shall be on the Corporation. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that an Indemnitee acted in such a manner as to make him or her ineligible for indemnification.
Section 4. Non-Exclusivity of Rights. The rights to indemnification and to the advancement of expenses conferred in this Article shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation's Certificate of Incorporation as amended from time to time, these Bylaws, any agreement, any vote of stockholders or disinterested directors or otherwise. However, no person shall be entitled to indemnification by the Corporation by virtue of the fact that such person is actually indemnified by another entity, including an insurer.
Section 5. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.
Section 6. Indemnification of Employees and Agents of the Corporation. The Corporation may, to the extent authorized from time to time by the board of directors, grant rights to the indemnification and to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.
ARTICLE VIII
AMENDMENTS
Section 1. These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the majority vote of the entire Board of Directors.
Section 2. Entire Board of Directors. As used in this Article VIII and in these Bylaws generally, the term “entire Board of Directors” means the total number of the directors which the Corporation would have if there were no vacancies.
Exhibit 4.1
Sixth SUPPLEMENTAL INDENTURE
Dated as of April 5, 2017
by and among
JOY GLOBAL INC.,
as Issuer,
and
Komatsu Ltd.,
as Parent,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
to
Indenture Dated as of November 10, 2006
THIS SIXTH SUPPLEMENTAL INDENTURE (this “Sixth Supplemental Indenture”) is made as of April 5, 2017, by and among JOY GLOBAL INC., a Delaware corporation,(along with any successor thereto, the “Company”), Komatsu Ltd., a Japanese joint stock company (the “Parent”) and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as trustee (along with any successor thereto, the “Trustee”).
RECITALS:
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of November 10, 2006 (the “Base Indenture”), providing for the issuance by the Company from time to time of Securities, in one or more Series up to such principal amounts as may from time to time be authorized;
WHEREAS, the Base Indenture has been supplemented by (i) the Supplemental Indenture, dated as of November 10, 2006 (the “First Supplemental Indenture”), providing for the issuance by the Company of $250,000,000 aggregate principal amount of its 6.00% Senior Notes due 2016 (which notes are no longer outstanding) and $150,000,000 aggregate principal amount of its 6.625% Senior Notes due 2036 (the “2036 Notes”), (ii) the Second Supplemental Indenture, dated as of August 1, 2008 (the “Second Supplemental Indenture”), (iii) the Third Supplemental Indenture, dated as of July 29, 2011 (the “Third Supplemental Indenture”), (iv) the Fourth Supplemental Indenture, dated as of October 12, 2011, providing for the issuance by the Company of $500,000,000 aggregate principal amount of its 5.125% Senior Notes due 2021 (the “2021 Notes” and, together with the 2036 Notes, the “Notes”) (the “Fourth Supplemental Indenture”), and (v) the Fifth Supplemental Indenture, dated as of January 24, 2017 (the “Fifth Supplemental Indenture”) (such Base Indenture as supplemented by the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture and the Fifth Supplemental Indenture, and as the same may be amended, supplemented, waived or modified from time to time, the “Indenture”);
WHEREAS, Section 13.2 of the Indenture provides that the Parent may, in its sole discretion, execute and deliver a supplemental indenture in order to give effect to the guarantee provided for therein (the “Parent Guarantee”);
WHEREAS, the Parent desires to provide the Parent Guarantee;
WHEREAS, Sections 8.1(h) and 13.2 of the Indenture provide that the Company, the Parent and the Trustee are authorized to execute and deliver this Sixth Supplemental Indenture without the consent of any Holder, in order to effect the execution and delivery of the Parent Guarantee;
WHEREAS, the Company and the Parent desire the Trustee to join the execution and delivery of this Sixth Supplemental Indenture and, in accordance with Sections 8.1 and 8.4 of the Base Indenture, the Company has delivered to the Trustee duly adopted resolutions of its Board of Directors authorizing the execution and delivery of this Sixth Supplemental Indenture and an Officers’ Certificate and Opinion of Counsel stating that all conditions precedent set forth in the Indenture relating thereto have been complied with and, accordingly, this Sixth Supplemental Indenture, the amendments set forth herein and the Trustee’s execution of this Sixth Supplemental Indenture are authorized pursuant to Sections 8.1, 8.3 and 8.4 of the Indenture;
WHEREAS, all things necessary to make this Sixth Supplemental Indenture, when duly executed and delivered by the parties hereto, a valid agreement of the Company, the Parent and the Trustee, in accordance with its terms, and a valid amendment of, and supplement to, the Indenture have been done;
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NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Parent and the Trustee mutually covenant and agree for the benefit of each other and the equal and ratable benefit of the Holders of the Notes, that the Indenture is supplemented and amended as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Generally.
(a) Capitalized terms used herein and not otherwise defined herein shall have the respective meanings ascribed thereto in the Base Indenture.
(b) The rules of interpretation set forth in the Base Indenture shall be applied hereto as if set forth in full herein.
ARTICLE II
PARENT GUARANTEE
Section 2.1. Parent Guarantee.
As more fully set forth in Section 13.2 of the Indenture, the Parent unconditionally guarantees, on a senior unsecured basis, to each Holder of the Notes and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes held thereby and the payment obligations of the Company thereunder, that: (i) the principal of, premium, if any, interest, if any, and additional amounts required by the Notes, if any, shall be promptly paid in full when due, subject to any applicable grace period, whether at the maturity date, by acceleration, upon repurchase or redemption or otherwise, and interest on the overdue principal of and premium, if any, and (to the extent permitted by law) interest on the Notes, and all other payment obligations of the Company to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full and performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at the stated maturity, by acceleration, upon repurchase or redemption or otherwise. Failing payment when so due of any amount so guaranteed for whatever reason, the Parent will be obligated to pay the same immediately.
Parent hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of the Parent. Further, to the extent permitted by law, Parent hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Parent Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
If any Holder or the Trustee is required by any court or otherwise to return to the Company, Parent, or any custodian, Trustee or other similar official acting in relation to the Company or Parent any amount paid by the Company or Parent to the Trustee or such Holder, the Parent Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
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Parent further agrees that, as between Parent, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 5.1 of the Base Indenture for the purposes of this Parent Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such obligations as provided in Section 5.1 of the Base Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Parent for the purpose of this Parent Guarantee.
Parent shall be subrogated to all rights of the Holders of the Notes against the Company in respect of any amount paid by the Parent on account of such Notes pursuant to the provisions of this Parent Guarantee or the Indenture; provided, however, that the Parent shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of, and any premium and interest on, all of the Notes have been paid in full.
Section 2.2. Notation of Parent Guarantee.
From this date, in accordance with Section 13.2 of the Indenture the accompanying notation of the Parent Guarantee will be endorsed by manual or facsimile signature by an authorized signatory of the Parent on each of the Notes authenticated and delivered by the Trustee:
“Subject to the limitations set forth in the Indenture referred to in the Security upon which this notation is endorsed, Komatsu Ltd. has unconditionally guaranteed: (a) the due and punctual payment of the principal of, premium, if any, interest, if any, and additional amounts required by the Securities, if any, whether at the maturity date, by acceleration, upon repurchase or redemption or otherwise, (b) the due and punctual payment of interest on the overdue principal of, premium, if any, and interest if lawful, on the Securities, (c) the due and punctual payment or performance of all other payment obligations of the Company to the Holders or the Trustee, all in accordance with the terms set forth in the Indenture, and (d) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, the prompt payment in full thereof when due or performance thereof in accordance with the terms of the extension or renewal, whether at the stated maturity, by acceleration, upon repurchase or redemption or otherwise. This Parent Guarantee is subject to the limitations set forth in the Indenture, including Section 13.2 thereof.
| KOMATSU LTD. | |
| By: | |
| Name: | |
| Title: ” |
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ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.1. Ratification of Base Indenture.
The Indenture, as supplemented by this Sixth Supplemental Indenture, is in all respects ratified and confirmed, and this Sixth Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided.
Section 3.2. Trustee Not Responsible for Recitals.
The recitals in this Sixth Supplemental Indenture are made by the Company and the Parent only and not by the Trustee, and all of the provisions contained in the Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee shall be applicable in respect of the Notes, the Parent Guarantee and of this Sixth Supplemental Indenture as fully and with like effect as if set forth herein in full. The Trustee makes no representation as to and shall not be responsible for the validity or sufficiency of this Sixth Supplemental Indenture, and the Trustee assumes no responsibility for the same.
The Company hereby confirms to the Trustee that this Sixth Supplemental Indenture has not resulted in a material modification of the Notes for Foreign Account Tax Compliance Act (“FATCA”) purposes. The Company shall give the Trustee prompt written notice of any material modification of the Notes that is deemed to occur for FATCA purposes and, until it has received such notice, the Trustee shall assume that no material modification for FATCA purposes has occurred regarding the Notes.
Section 3.3. Headings, etc.
The headings of the Articles and Sections of this Sixth Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.
Section 3.4. Benefits.
Nothing contained in the Indenture shall or shall be construed to confer upon any person other than a Holder of the Notes, the Company, the Parent or the Trustee any right or interest to avail itself of any benefit under any provision of the Indenture, the Notes or this Sixth Supplemental Indenture.
Section 3.5. Effective Date.
This Sixth Supplemental Indenture shall be effective as of the date first above written upon the execution and delivery hereof by each of the parties hereto.
Section 3.6. Counterparts.
This Sixth Supplemental Indenture may be executed in multiple counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument. Signatures of the parties hereto transmitted by facsimile or PDF may be used in lieu of the originals and shall be deemed to be their original signatures for all purposes.
Section 3.7. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS Sixth SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties have caused this Sixth Supplemental Indenture to be duly executed all as of the date and year first written above.
|
JOY GLOBAL INC., a Delaware corporation | ||
| By: | /s/ Barbara G. Bolens | |
| Name: Barbara G. Bolens | ||
| Title: Vice President & Treasurer | ||
Company Signature Page to Sixth Supplemental Indenture
|
Komatsu Ltd. a Japanese joint stock company | ||
| By: | /s/ Tetsuji Ohashi | |
| Name: Tetsuji Ohashi | ||
| Title: President and CEO | ||
Parent Signature Page to Sixth Supplemental Indenture
|
WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Trustee | ||
| By: | /s/ David S. Pickett | |
| Name: David S. Pickett | ||
| Title: Assistant Vice President | ||
Trustee Signature Page to Sixth Supplemental Indenture