-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, B+Y+pojMVxI+0wuExQkCdOr5jFciIh3v4TVyGmSrHufLCVf4R7A+Gjhzr4pY+M1O /rerojwQBIFu8UwIiEtw8A== 0000950117-97-001450.txt : 19970828 0000950117-97-001450.hdr.sgml : 19970828 ACCESSION NUMBER: 0000950117-97-001450 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19970827 SROS: NASD GROUP MEMBERS: JACKSON NATIONAL LIFE INSURANCE CO /MI GROUP MEMBERS: PPM AMERICA, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BUCYRUS INTERNATIONAL INC CENTRAL INDEX KEY: 0000740761 STANDARD INDUSTRIAL CLASSIFICATION: MINING MACHINERY & EQUIP (NO OIL & GAS FIELD MACH & EQUIP) [3532] IRS NUMBER: 390188050 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-33080 FILM NUMBER: 97671074 BUSINESS ADDRESS: STREET 1: P O BOX 500 STREET 2: 1100 MILWAUKEE AVENUE CITY: SOUTH MILWAUKEE STATE: WI ZIP: 53172-0500 BUSINESS PHONE: 4147684000 MAIL ADDRESS: STREET 1: P O BOX 500 STREET 2: 1100 MILWAUKEE AVENUE CITY: SOUTH MILWAUKEE STATE: WI ZIP: 53172-0500 FORMER COMPANY: FORMER CONFORMED NAME: BUCYRUS ERIE CO /DE DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: BECOR WESTERN INC/DE DATE OF NAME CHANGE: 19860901 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: JACKSON NATIONAL LIFE INSURANCE CO /MI CENTRAL INDEX KEY: 0000931788 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: MI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 5901 EXECUTIVE DRIVE CITY: LANSING STATE: MI ZIP: 48911 BUSINESS PHONE: 5173943400 MAIL ADDRESS: STREET 1: C/O ANDERSON, KILL ET AL STREET 2: 1251 AVE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10020 SC 13D/A 1 JACKSON NATIONAL LIFE SC 13D/A UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- Amendment No. 4 to SCHEDULE 13D --------------- Under the Securities Exchange Act of 1934 (Amendment No. 4)* Bucyrus International, Inc. (Name of Issuer) Common Stock, $.01 par value per share (Title of Class of Securities) 118902105 (CUSIP Number) --------------- J. Andrew Rahl, Jr. Esq. Anderson Kill & Olick, P.C. 1251 Avenue of the Americas, New York, NY 10020-1182 (212) 278-1469 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) August 21, 1997 (Date of Event which Requires Filing of this Statement) --------------- If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d- 1(b)(3) or (4), check the following box [ ]. Check the following box if a fee is being paid with the statement [ ]. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7.) -1- Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosure provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). -2- SCHEDULE 13D CUSIP No. 118902105 1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Jackson National Life Insurance Company 38-1659835 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3. SEC USE ONLY 4. SOURCE OF FUNDS* Conversion of pre-bankruptcy debt and equity obligations to post-bankruptcy equity in reorganized Issuer pursuant to a Plan of Reorganization. (00). 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6. CITIZENSHIP OR PLACE OR ORGANIZATION Michigan NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7. SOLE VOTING POWER - 4,228,382 8. SHARED VOTING POWER - 4,228,382 9. SOLE DISPOSITIVE POWER - 4,228,382 10. SHARED DISPOSITIVE POWER - 4,228,382 11. AGGREGATE AMOUNT BENEFICIALLY OWED BY EACH REPORTING PERSON - 4,228,382 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 40.14% 14. TYPE OF REPORTING PERSON* Life Insurance Company (IC) *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION -3- SCHEDULE 13D CUSIP No. 118902105 1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON PPM America, Inc. 36-3714794 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [x] 3. SEC USE ONLY 4. SOURCE OF FUNDS* Conversion of pre-bankruptcy debt and equity obligations to post-bankruptcy equity in reorganized Issuer pursuant to a Plan of Reorganization. (00). 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6. CITIZENSHIP OR PLACE OR ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7. SOLE VOTING POWER - 4,228,382 8. SHARED VOTING POWER - 4,228,382 9. SOLE DISPOSITIVE POWER - 4,228,382 10. SHARED DISPOSITIVE POWER - 4,228,382 11. AGGREGATE AMOUNT BENEFICIALLY OWED BY EACH REPORTING PERSON - 4,228,382 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 40.14% 14. TYPE OF REPORTING PERSON* Investment Adviser (IA) *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION -4- AMENDMENT NO. 4 TO SCHEDULE 13D This Amendment relates to the Schedule 13D dated December 23, 1994 ("Original Schedule 13D"), as amended by Amendment No. 1 thereto dated April 10, 1995 ("First Amendment"), Amendment No. 2 thereto dated April 18, 1996 ("Second Amendment") and Amendment No. 3 thereto dated August 5, 1997 ("Third Amendment"), each filed by Jackson National Life Insurance Company ("JNL") and PPM America, Inc. ("PPM America") relating to the common stock, par value $.01 per share ("Common Stock"), of Bucyrus International, Inc. (the "Issuer"). Notwithstanding this Amendment No. 4, the Original Schedule 13D, the First Amendment, the Second Amendment and the Third Amendment speak as of their respective dates. All capitalized terms used but not otherwise defined in this Amendment have the meanings given to them in the Original Schedule 13D. ITEM 4. PURPOSE OF TRANSACTION. Item 4 of the Original Schedule 13D, as amended by the First Amendment, Second Amendment and Third Amendment, is hereby amended and restated in its entirety as follows: Except as otherwise described herein, the reporting persons acquired the shares of Common Stock described in Item 5 of the Original Schedule 13D for investment purposes. Except as otherwise described herein, the reporting persons presently do not intend to acquire additional shares of Common Stock in the open market or through privately negotiated transactions. The Merger As disclosed in the Issuer's press release dated August 21, 1997, Bucyrus Acquisition Corp. (the "Purchaser"), American Industrial Partners Acquisition Company, LLC (the "Parent"), each an affiliate of American Industrial Partners Capital Fund II, L.P., have entered into a merger agreement (the"Merger Agreement") with the Issuer, a copy of which is attached hereto as Exhibit 2, providing for the acquisition of the Issuer by the Purchaser (the "Merger"). Under the terms of the Merger Agreement, the Purchaser will make a cash tender offer (the "Offer"), to acquire all of the shares of Common Stock of the Issuer at a price of $18 per share. The transaction is subject to shareholder approval, if necessary, regulatory approvals and the purchase of shares of Common Stock in the Offer by the Purchaser. - 5 - Stockholder Agreement In connection with the execution of the Merger Agreement, JNL, the Parent and the Purchaser entered into a Stockholder Agreement, dated as of August 21, 1997, (the "Stockholder Agreement"), pursuant to which and subject to the terms thereof, JNL agreed to tender, or cause to be tendered, all shares of Common Stock owned by JNL (the "Shares") into the Offer. In the Stockholder Agreement, JNL represented that it owns, in the aggregate, 4,228,382 Shares and $63,963,000 in principal amount of the Company's 10.5% Secured Notes due September 14, 1999 (the "Secured Notes"). The following description of the Stockholder Agreement does not purport to be complete and is qualified by reference to the text of the Stockholder Agreement, a copy of which is filed as Exhibit 3 hereto and incorporated herein by reference. Capitalized terms not otherwise defined below have the meanings set forth in the Stockholder Agreement. Pursuant to the Stockholder Agreement, JNL has agreed that it will tender its Shares into the Offer promptly, and in any event no later than the fifth business day following the commencement of the Offer, and that it will not withdraw any Shares so tendered. The Purchaser has agreed to purchase all of the Shares so tendered at $18.00 per Share, or such higher price per Share as may be offered by the Purchaser in the Offer; provided that the Purchaser's obligation to accept for payment and pay for the Shares in the Offer is subject to all the terms and conditions of the Offer set forth in the Merger Agreement and Annex I thereto. Further, pursuant to the Stockholder Agreement, JNL has granted to the Parent during the term of the Merger Agreement an irrevocable proxy to vote the Shares, or grant a consent or approval in respect of the Shares, in connection with any meeting of the stockholders of the Company (i) in favor of the Merger and (ii) against any action or agreement which would impede, interfere with or prevent the Merger, including any other extraordinary corporate transaction such as a merger, reorganization or liquidation involving the Company and a third party or any other proposal by a third party to acquire the Company. During the term of the Stockholder Agreement, JNL has agreed that it will not (subject to certain exceptions) (i) transfer, or enter into any contract, option, agreement or other understanding with respect to the transfer of, the Shares or the Secured Notes held by it or any interest therein, (ii) except as provided in the Stockholder Agreement, grant any proxy, power of attorney or other authorization or consent in or with respect to the Shares or Secured Notes, (iii) deposit the Shares or Secured Notes in any voting trust or enter into any voting agreement or arrangement with respect to the Shares or Secured Notes, or (iv) take any other action with respect to the Shares or Secured Notes that would in any way restrict, limit or interfere with the - 6 - performance of its obligations pursuant to the Stockholder Agreement; provided, however, that JNL may transfer all or a portion of the Shares or Secured Notes to a person or entity who, by written instrument reasonably acceptable in form and substance to the Parent, agrees to be bound by each of the terms of the Merger Agreement. In addition, JNL, the Parent and the Purchaser have agreed that (i) JNL will notify the Purchaser of any inquiry JNL receives which might lead to an acquisition of the Company by a third party; and (ii) JNL will waive, if requested, the provisions of the Indenture relating to the prior notice of redemption of the Secured Notes, or will immediately following consummation of the Senior Notes Offering (as hereinafter defined) and subject to being indemnified by the Parent and Purchaser, sell its Secured Notes to the Company at face value plus accrued interest from June 30, 1997 through the date of purchase. The Stockholder Agreement shall terminate upon the earlier of (a) the date (the "Termination Date") that is six months following the date upon which the Merger Agreement is terminated in accordance with its terms, or (b) the Effective Time, provided that certain provisions specified in the Stockholder Agreement will survive such termination. Neither party has any other unilateral right to terminate the Stockholder Agreement. In the Stockholder Agreement, JNL has granted to the Parent an irrevocable option (the "Purchaser Option") to purchase the Shares at a purchase price of $18.00 per Share (the "Exercise Price"). The Parent's ability to exercise the option is contingent upon the occurrence of certain events. At any time or from time to time prior to the Termination Date, the Parent (or its designee) may exercise the Purchaser Option, in whole but not in part, if on or after the date thereof any Third Party (as defined therein) shall have taken certain defined steps that could evidence, lead to or result in the acquisition of or exercise of control over the Company. Notwithstanding any other provision of the Stockholder Agreement, in the event that the Merger Agreement is terminated and at any time prior to the Termination Date, a person other than the Parent or any of its affiliates acquires a majority of the outstanding Shares at a price higher than the Exercise Price (an "Alternative Transaction"), then the Parent shall promptly either reduce the number of Shares subject to the Purchaser Option, pay cash to JNL or do both such that the actual Total Profit realized or to be realized by the Parent upon the consummation of an Alternative Transaction does not exceed 50% of the Total Profit that the Parent would otherwise realize had it not taken the foregoing actions; provided, that, in the event that the Parent elects to reduce the number of Shares subject to the Purchaser Option, there shall be pending, at the time the Parent makes such election, a transaction involving the Company that, if consummated, would allow JNL to dispose of any remaining Shares that would not otherwise be purchased by the Parent upon the - 7 - exercise of the Purchaser Option. As used in the Stockholder Agreement, the term "Total Profit" shall mean the aggregate amount (before taxes) of the net cash amounts and the fair market value (as reasonably determined by a nationally recognized investment banking firm acceptable to each of the Parent and JNL or, if one cannot be agreed upon, by Salomon Brothers, Inc.) of all other forms of consideration received or to be received by the Parent pursuant to the sale of the aggregate number of Shares subject to the Purchaser Option (or any other securities into which such Shares are converted or exchanged) in any Alternative Transaction, less the aggregate Exercise Price of all of such Shares. In the event that the Parent or the Purchaser pays a price higher than $18.00 per Share for Shares tendered into the Offer, the Exercise Price shall be increased to equal such higher price. The Stockholder Agreement prohibits JNL from entering into discussions with third parties to engage in extraordinary corporate transactions involving the Issuer or the sale or transfer of a material amount of assets of the Issuer or its subsidiaries. The reporting persons believe that the terms of the proposed transactions contemplated by the Merger Agreement and the Stockholder Agreement will allow JNL to continue to pursue its pending actions against Mikael Salovaara, the South Street group of investment funds, the law firm of Milbank, Tweed, Hadley & McCloy ("Milbank") and others with respect to the Issuer. Joint Prosecution Agreement Contemporaneously with the execution of the Stockholder Agreement, the Issuer and JNL entered into the Joint Prosecution Agreement (the "Joint Prosecution Agreement") attached as Exhibit 4 hereto and incorporated herein by reference, relating to various claims the Issuer and JNL have or may have resulting from the Issuer's reorganization in 1994 under Chapter 11 of the United States Bankruptcy Code (the "Chapter 11 Reorganization") against Milbank for disgorgement of fees (the "Disgorgement Claim") and other possible claims (collectively, the "Milbank Claims"). The Issuer and JNL have agreed that, effective September 1, 1997, they will jointly prosecute the Milbank Claims in their respective names (the "Joint Prosecution"). All proceeds resulting from the Joint Prosecution will be allocated as follows: (i) first, to pay, or to reimburse the prior payment of, all bona fide party costs, expenses and liabilities incurred in connection with the Joint Prosecution including, without limitation, the reasonable fees and disbursements of counsel and other professional advisors, which are to be advanced by JNL; (ii) the next $8.675 million of proceeds from the Milbank Claims, if any, will be paid to JNL, provided that the Issuer will retain ten percent of the proceeds of the Disgorgement Claim, if any, and will direct payment to JNL of the balance of such proceeds; and (iii) all additional proceeds of the Milbank Claims will be divided equally between JNL and the Issuer. The Joint Prosecution Agreement also provides that the Issuer will receive - 8 - the benefit of any reduction of any obligation it may have to pay Milbank's outstanding fees, if any. JNL and the Issuer have agreed that JNL may, in its discretion and after consultation with the Issuer, direct the prosecution of the Milbank Claims in a manner which JNL reasonably deems necessary to minimize the cost and expense of such prosecution; provided, that JNL and the Issuer will vigorously prosecute the Milbank Claims and defend any Milbank counterclaim for outstanding fees. JNL will indemnify the Issuer in respect of any liability resulting from the Joint Prosecution other than in respect of legal fees and expenses incurred prior to September 1, 1997. The Joint Prosecution Agreement will continue in force irrespective of whether the Merger is consummated. Settlement Agreement During the pendency of the Chapter 11 Reorganization, JNL filed a claim (the "503(b) Claim") against the Issuer with the United States Bankruptcy Court, Eastern District of Wisconsin ("Bankruptcy Court") for reimbursement of approximately $3.3 million of professional fees and disbursements incurred in connection with the Chapter 11 Reorganization pursuant to Section 503(b) of the Bankruptcy Code. By order dated June 3, 1996, the Bankruptcy Court awarded JNL the sum of $500. JNL appealed the decision to the United States District Court for the Eastern District of Wisconsin. On June 26, 1997, the District Court denied the appeal as moot but returned the matter to the Bankruptcy Court for further proceedings with leave to appeal again after further determination of the Bankruptcy Court. On July 11, 1997, JNL moved the Bankruptcy Court for relief from the final judgment entered on the 503(b) Claim. Pursuant to a Settlement Agreement between the Issuer and JNL dated as of August 21, 1997, attached as Exhibit 5 hereto and incorporated herein by reference, subject to Bankruptcy Court approval, JNL will settle and release the Issuer from the 503(b) Claim in consideration of the payment to JNL by the Issuer of $200,000. Acquisition of Additional Shares In addition, the reporting persons continue to anticipate that JNL may acquire additional shares of Common Stock pursuant to the terms of the Plan. As discussed in Item 3 of the Original Schedule 13D, pursuant to Section 3.09(b)(ii) of the Plan, any recovery of cash or property obtained by or on behalf of the Issuer with respect to any Cause of Action against a Non-Released Person which arose prior to February 18, 1994 shall constitute a distribution on JNL's claim as the holder of the Bucyrus Resettable Senior Notes. Accordingly, pursuant to - 9 - Section 3.09(b)(ii) of the Plan, JNL may be entitled from time to time after the date of this filing to receive additional shares of Common Stock. Specifically, JNL is vigorously pursuing as a representative of Holdings' and Bucyrus' bankruptcy estates claims, rights and Causes of Action against South Street Corporate Recovery Fund I, L.P., South Street Leveraged Corporate Recovery Fund, L.P., South Street Corporate Recovery Fund I (International), L.P., Greycliff Partners, Ltd. and their respective successors, predecessors and other related parties, including Mikael Salovaara and Alfred Eckert, each in its or his capacity as a Non-Released Person ("Claims Against Non-Released Persons"). At this time, the reporting persons believe it is premature and speculative to estimate the number of shares which would be received by JNL if JNL were to be wholly or partially successful in pursuing such claims. The reporting persons may in the future seek in open market or privately negotiated transactions to acquire additional shares of Common Stock or to dispose of all or a portion of Common Stock covered by this Schedule 13D. The reporting persons may from time to time consider or discuss with third parties the disposition of some or all of such shares of Common Stock. In making any decision whether to acquire or dispose of shares of Common Stock, in addition to the other considerations discussed herein, the reporting persons will consider various factors, including, among other things, the Issuer's financial condition, business and prospects, the price at which such securities are trading and the nature of other opportunities available. Any additional shares of Common Stock which JNL acquires will be subject to the terms and conditions of the Stockholder Agreement. General On August 25, 1997, the Issuer acquired certain assets of as subsidiary of Global Industrial Technologies, Inc. ("Global"), The Marion Power Shovel Company, and certain subsidiaries and divisions of Global that represent Global's surface mining equipment business in Canada, Australia, and South Africa. In connection with the Marion acquisition, the Issuer obtained a $45 million bridge loan from the PPM America Special Investments Fund, L.P., an affiliate of the reporting persons, to fund the purchase of the business and assets of Marion. The maturity date of such Bridge Loan is 180 days from the closing date of such loan. The corporate governance issues described in paragraphs 5 through 11 of the Original Schedule 13D ceased to be applicable as of the annual meeting of stockholders of the Issuer held April 30, 1997 (the "1997 Annual Meeting"). On March 5, 1997, the Board, acting pursuant to Section 4.2 of the Restated Bylaws of the Issuer, adopted a resolution establishing the number of directors at seven, effective as of the date of the 1997 Annual Meeting. At such 1997 Annual Meeting, seven directors were elected to hold office until the 1998 annual meeting of - 10 - shareholders of the Issuer and until their successors are duly elected and qualified. Effective April 30, 1997, the Board of Directors of the Issuer appointed Armour F. Swanson as the NonExecutive Chairman of the Issuer's Board of Directors, replacing F. John Stark III, who continued to serve as a Director. Of the directors elected at the 1997 Annual Meeting, Russell W. Swansen and F. John Stark III were reelected. Such individuals are also directors and officers of PPM, which is the investment advisor to JNL (the "JNL Directors"). Accordingly, JNL or PPM may be deemed to have the ability to influence the Issuer's Board of Directors and the JNL Directors may be deemed to participate, together with other members of the Issuer's Board of Directors, in the management of the Issuer. The JNL Directors, in their capacity as members of the Board of Directors, will necessarily consider proposals from time to time regarding the business and affairs of the Issuer, possibly including matters of the nature enumerated in clauses (a) through (j), inclusive, of Item 4 of Schedule 13D. If any such matter is presented to the Issuer's Board of Directors, the JNL Directors intend to act thereon in accordance with their business judgment at such time. Consummation of the transactions contemplated by the Merger Agreement could result in a change in the present Board of Directors or management of the Issuer. The terms of the Merger Agreement may also, among other things, have the effect of (i) impeding the acquisition of control of the Issuer by any person other than the Purchaser, (ii) causing the Issuer's Common Stock to be delisted from a national securities exchange or cease to be authorized or quoted in an inter-dealer quotation system of a registered national securities association, or (iii) causing a class of equity securities of the Issuer to become eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934. Except as aforesaid, neither JNL, PPM America, Brooke, PPM Ltd. or Prudential, nor to the best of their knowledge, any of the directors or executive officers of any of them, presently has plans or proposals which relate to or would result in any of the matters enumerated in clauses (a) through (j), inclusive, of Item 4 of Schedule 13D. The reporting persons may take any other action with respect to the Issuer and its securities in any manner permitted by law. - 11 - ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Item 6 of the Original Schedule 13D is hereby amended to add the following paragraphs: The disclosure provided in Item 4 hereof with respect to the Merger Agreement and the Stockholder Agreement is incorporated in this Item 6 by reference. ITEM 7. EXHIBITS. (1) Issuer's Press Release dated August 21, 1997. (2) Merger Agreement dated as of August 21, 1997 among the Parent, the Purchaser and the Issuer (incorporated by reference from exhibit 1 to the Issuer's Schedule 14D-9 dated August 26, 1997). (3) Stockholder Agreement dated as of August 21, 1997 between the Purchaser and JNL. (4) Joint Prosecution Agreement dated as of August 21, 1997 between the Issuer and JNL. (5) Settlement Agreement dated as of August 21, 1997 between the Issuer and JNL. - 12 - SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. Date: August 27, 1997 JACKSON NATIONAL LIFE INSURANCE COMPANY By: /s/ F. John Stark, III ------------------------------ Name: F. John Stark, III Title: Attorney-in-fact PPM AMERICA, INC. By: /s/ F. John Stark, III ------------------------------ Name: F. John Stark, III Title: Senior Vice President and General Counsel EX-99 2 EXHIBIT 1 EXHIBIT 1 PRESS RELEASE BUCYRUS INTERNATIONAL, INC. (NASDAQ: BCYR) FOR IMMEDIATE RELEASE BUCYRUS INTERNATIONAL, INC. SIGNS DEFINITIVE MERGER AGREEMENT WITH AMERICAN INDUSTRIAL PARTNERS South Milwaukee, Wisconsin, August 21,1997 ... Bucyrus International, Inc. ("Bucyrus") and American Industrial Partners Acquisition Company, LLC ("American Industrial Partners"), jointly announced that they have signed a definitive merger agreement for American Industrial Partners to acquire all of the outstanding shares of common stock of Bucyrus. Pursuant to the merger agreement, American Industrial Partners will pay $18.00 per each outstanding share of Bucyrus common stock. Bucyrus currently has 10,534,574 shares of common stock outstanding. The transaction will be a cash tender offer followed by a cash merger to acquire any shares not previously tendered. The transaction has been recommended by the Board of Directors of Bucyrus and approved by American Industrial Partners. In connection with the execution of the merger agreement, American Industrial Partners entered into a stockholder agreement with Jackson National Life Insurance Company ("Jackson"), which is the holder of approximately 40% of the outstanding shares of common stock of Bucyrus. The stockholder agreement provides for, among other things, Jackson's commitment to tender its shares into the tender offer and the granting of an option to American Industrial Partners to purchase Jackson's shares for $18.00 per share. American Industrial Partners expects to commence its cash tender offer on or before August 27, 1997. The cash tender offer is subject to, among other things, American Industrial Partners receiving at least 51% of the fully diluted shares of common stock of Bucyrus. The closing of the transaction is subject to the satisfaction of various conditions, including, but not limited to, expiration of the waiting period under the Hart-Scott-Rodino Act. Bucyrus is one of the world's leading manufacturers of large scale surface mining equipment and a provider of aftermarket parts and services. American Industrial Partners was formed at the direction of American Industrial Partners Capital Fund II, L.P., -1- EXHIBIT 1 a private investment limited partnership which makes equity investments in public and privately held companies located principally in the United States. Contact: Willard R. Hildebrand, President and Chief Executive Officer or Daniel J. Smoke, Vice President and Chief Financial Officer (414) 768-5375 or (414) 768-5378 -2- EX-99 3 EXHIBIT 3 EXHIBIT 3 STOCKHOLDER AGREEMENT STOCKHOLDER AGREEMENT (this "Agreement"), dated as of August 21, 1997, by and among American Industrial Partners Acquisition Company, LLC, a Delaware limited liability company ("Parent"), Bucyrus Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent ("the Purchaser") and Jackson National Life Insurance Company, a Michigan corporation (the "Stockholder"). WHEREAS, the Stockholder is, as of the date hereof, the record and beneficial owner of 4,228,382 shares of common stock, par value $0.01 per share (the "Common Stock") of Bucyrus International, Inc., a Delaware corporation (the "Company") and, together with PPM America, Inc., a Delaware Corporation, shares voting power and dispositive power with respect to such shares; and WHEREAS, the Stockholder is, as of the date hereof, the record and beneficial owner of $63,963,000 in principal amount of the Company's 10.5% Secured Notes due December 14, 1999 (the "Secured Notes"), which Secured Notes are governed by that certain Indenture, dated December 14, 1994, between Bucyrus-Erie Company, predecessor to the Company, and Harris Trust and Savings Bank, as Trustee (the "Indenture") and by that certain Security Agreement, dated December 14, 1994, between Bucyrus-Erie Company and Harris Trust and Savings Bank, as Collateral Agent (the "Security Agreement"); and WHEREAS, Parent, the Purchaser and the Company concurrently herewith are entering into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger Agreement"), which provides, among other things, for the acquisition of the Company by Parent by means of a cash tender offer (the "Offer") for any and all of the outstanding shares of Common Stock and for the subsequent merger (the "Merger") of the Purchaser with and into the Company upon the terms and subject to the conditions set forth in the Merger Agreement; and WHEREAS, the Company and the Stockholder concurrently herewith are entering into a Settlement Agreement, dated as of the date hereof, (the "Settlement Agreement"), which provides, among other things, for the settlement and release of certain claims that the Stockholder has asserted against the Company and for the allocation, as between the Company and the Stockholder, of amounts that the Company may recover in respect of certain claims against third parties; and WHEREAS, as a condition to the willingness of Parent and the Purchaser to enter into the Merger Agreement, and in order to induce Parent and the Purchaser to enter into the Merger Agreement, the Stockholder has agreed to enter into this Agreement and the Settlement Agreement. NOW, THEREFORE, in consideration of the execution and delivery by Parent and the Purchaser of the Merger Agreement and the foregoing and the mutual representations, warranties, covenants and agreements set forth herein and therein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: SECTION 1. Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants, to Parent and the Purchaser as follows: (a) The Stockholder is the record and beneficial owner of 4,228,382 shares of Common Stock (as may be adjusted from time to time pursuant to Section 6 hereof, the "Shares"), and the Stockholder is the record and beneficial owner of $63,963,000 in principal amount of the Secured Notes (as may be adjusted from time to time pursuant to Section 6 hereof, the "Stockholder's Secured Notes"). (b) The Stockholder is a corporation duly organized, validly existing and in good standing under the laws of its respective jurisdiction, has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement. 2 (c) This Agreement has been duly authorized, executed and delivered by the Stockholder and constitutes the legal, valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors' rights generally, and (ii) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and would be subject to the discretion of the court before which any proceeding therefor may be brought. (d) Neither the execution and delivery of this Agreement nor the consummation by the Stockholder of the transactions contemplated hereby will result in a violation of, or a default under, or conflict with, any contract, trust, commitment, agreement, understanding, arrangement or restriction of any kind to which the Stockholder is a party or bound or to which the Shares or the Secured Notes are subject. Consummation by the Stockholder of the transactions contemplated hereby will not violate, or require any consent, approval, or notice under, any provision of any judgment, order, decree, statute, law, rule or regulation applicable to the Stockholder, the Shares or the Stockholder's Secured Notes, except for any necessary filing under the Securities Exchange Act of 1934, as amended (the "Exchange Act") or the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), or state takeover laws. (e) The Shares and the certificates representing the Shares and the Stockholder's Secured Notes are now and at all times during the term hereof will be held by the Stockholder, or by a nominee or custodian for the benefit of the Stockholder, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, understandings or arrangements or any other encumbrances whatsoever, except for any such encumbrances or proxies arising hereunder; provided, however, that the Stockholder may transfer all or a portion of the Shares or the Secured Notes to be a person or entity who, by written instrument reasonably acceptable in form and substance to Parent, agrees to be bound by each of the terms of this Agreement. 3 (f) To the best knowledge of the Stockholder, without independent investigation, the representations of the Company set forth in Section 3.6 (with respect to such matters as have been disclosed to the Stockholder or any of its affiliates in writing prior to the date hereof), 3.7 (with respect to liabilities or indebtedness owed to the Stockholder or any of its affiliates), 3.8 (with respect to such matters in which the Stockholder or any of its affiliates is a party) 3.15 (with respect to such matters as to which the Stockholder or any of its affiliates have received written notice), and 3.20 (with respect to such matters involving the Stockholder or any of its affiliates) of the Merger Agreement, as modified by the Company Disclosure Schedule (as defined in the Merger Agreement), are true and correct in all material respects as of the date of this Agreement. The representations and warranties of the Stockholder set forth in this paragraph (f) shall terminate upon the earlier to occur of the Effective Time (as defined in the Merger Agreement) and the Termination Date. SECTION 2. Representations and Warranties of Parent and the Purchaser. Each of Parent and the Purchaser hereby, jointly and severally, represents and warrants to the Stockholder as follows: (a) Parent is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement. The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement. (b) This Agreement has been duly authorized, executed and delivered by each of Parent and the Purchaser and constitutes the legal, valid and binding obligation of each of Parent and the Purchaser, enforce- 4 able against each of them in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors' rights generally and (ii) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and would be subject to the discretion of the court before which any proceeding therefor may be brought. (c) Neither the execution and delivery of this Agreement nor the consummation by each of Parent and the Purchaser of the transactions contemplated hereby will result in a violation of, or a default under, or conflict with, any contract, trust, commitment, agreement, understanding, arrangement or restriction of any kind to which each of Parent and the Purchaser is a party or bound. The consummation by each of Parent and the Purchaser of the transactions contemplated hereby will not violate, or require any consent, approval, or notice under, any provision of any judgment, order, decree, statute, law, rule or regulation applicable to either Parent or the Purchaser, except for any necessary filing under the HSR Act or state takeover laws. SECTION 3. Purchase and Sale of the Shares. The Stockholder hereby agrees that it shall tender the Shares into the Offer promptly, and in any event no later than the fifth business day following the commencement of the Offer, or, if the Stockholder has not received the offering materials by such time, within two business days following receipt of such materials, and that it shall not withdraw any Shares so tendered. The Purchaser hereby agrees to purchase all the Shares so tendered at a price per Share equal to $18.00 per Share, or such higher price per Share as may be offered by the Purchaser in the Offer; provided that the Purchaser's obligation to accept for payment and pay for the Shares in the Offer is subject to all the terms and conditions of the Offer set forth in the Merger Agreement and Annex I thereto. SECTION 4. Transfer of the Shares and the Stockholder's Secured Notes. Prior to the termination of this Agreement, except as otherwise provided herein, the Stockholder shall not: (i) transfer (which term shall include, without limitation, for the purposes of this Agreement, any sale, gift, pledge or other disposition), 5 or consent to any transfer of, any or all of the Shares or the Stockholder's Secured Notes or any interest therein; (ii) enter into any contract, option or other agreement or understanding with respect to any transfer of any or all of the Shares or the Stockholder's Secured Notes or any interest therein; (iii) except as provided in Section 8(b) hereto, grant any proxy, power-of-attorney or other authorization or consent in or with respect to the Shares or the Stockholder's Secured Notes; (iv) deposit the Shares or the Stockholder's Secured Notes into a voting trust or enter into a voting agreement or arrangement with respect to the Shares or the Stockholder's Secured Notes; or (v) take any other action with respect to the Shares or the Secured Notes that would in any way restrict, limit or interfere with the performance of their obligations hereunder or the transactions contemplated hereby; provided, however, that the Stockholder may transfer all or a portion of the Shares or the Secured Notes to a person or entity who, by written instrument reasonably acceptable in form and substance to Parent, agrees to be bound by each of the terms of this Agreement. SECTION 5. Voting of Shares; Grant of Irrevocable Proxy; Appointment of Proxy. (a) The Stockholder hereby agrees that, during the term of this Agreement, at any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the holders of Common Stock, however called, or in connection with any written consent of the holders of Common Stock, the Stockholder will appear at the meeting or otherwise cause the Shares to be counted as present thereat for purposes of establishing a quorum and vote or consent (or cause to be voted or consented) the Shares (i) in favor of the Merger, (ii) against any action or agreement which would impede, interfere with or prevent the Merger, including any other extraordinary corporate transaction, such as a merger, reorganization or liquidation involving the Company and a third party or any other proposal of a third party to acquire the Company, and (iii) if requested by Parent, in favor of a shareholder resolution proposed by Parent pursuant to Section 180.1150(4) of the Wisconsin Business Corporation Law. 6 (b) The Stockholder hereby irrevocably grants to, and appoints, Parent and any nominee thereof, its proxy and attorney-in-fact (with full power of substitution) during the term of this Agreement, for and in the name, place and stead of the Stockholder, to vote the Shares, or grant a consent or approval in respect of the Shares, in connection with any meeting of the stockholders of the Company (i) in favor of the Merger, and (ii) against any action or agreement which would impede, interfere with or prevent the Merger, including any other extraordinary corporate transaction, such as a merger, reorganization or liquidation involving the Company and a third party or any other proposal of a third party to acquire the Company. (c) The Stockholder represents that any proxies heretofore given in respect of the Shares, if any, are not irrevocable, and that such proxies are hereby revoked. (d) The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 5 is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of the Stockholder under this Agreement. The Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and, except as set forth in Section 8 hereof, is intended to be irrevocable in accordance with the provisions of Section 212(e) of the Delaware General Corporation Law (the "DGCL"). SECTION 6. Certain Events. In the event of any stock split, stock dividend, merger, reorganization, recapitalization or other change in the capital structure of the Company affecting the Common Stock, the Secured Notes or the acquisition of additional shares of Common Stock, additional Secured Notes or other securities or rights of the Company by the Stockholder, the number of Shares and the aggregate principal amount of the Stockholder's Secured Notes shall be adjusted appropriately, and this Agreement and the obligations hereunder shall attach to any additional shares of Common Stock, additional Secured Notes or other securities or rights of the Company issued to or acquired by the Stockholder. SECTION 7. Grant of Option. 7 (a) The Stockholder hereby grants to Parent an irrevocable option (the "Option") to purchase the Shares at a purchase price per share of $18.00 per Share (the "Exercise Price"), in the manner set forth in this Section. (b) At any time or from time to time prior to the termination of the Option granted hereunder in accordance with the terms of this Agreement, Parent (or its designee) may exercise the Option, in whole but not in part (except as expressly permitted by Section 7(d)), if on or after the date hereof: (i) any corporation, partnership, individual, trust, unincorporated association, or other entity or "person" (as defined in Section 13(d)(3) of the Exchange Act) other than Parent or any of its "affiliates" (as defined in the Exchange Act) (a "Third Party"), shall have: (A) commenced or announced an intention to commence a bona fide tender offer or exchange offer for any shares of Common Stock, the consummation of which would result in "beneficial ownership" (as defined under the Exchange Act) by such Third Party (together with all such Third Party's affiliates and "associates" (as such term is defined in the Exchange Act)) of 50% or more of the then outstanding voting equity of the Company (either on a primary or a fully diluted basis); (B) acquired beneficial ownership of shares of Common Stock which, when aggregated with any shares of Common Stock already owned by such Third Party, its affiliates and associates, would result in the aggregate beneficial ownership by such Third Party, its affiliates and associates of 15% or more of the then outstanding voting equity of the Company (either on a primary or a fully diluted basis), provided, however, that "Third Party" for purposes of this clause (ii) shall not include any corporation, partnership, person, other entity or group which beneficially owns more than 15% of the outstanding voting equity of the Company (either on a primary or a fully diluted basis) as of the date hereof and that does not, after the date hereof, increase such ownership percentage by more 8 than an additional 1% of the outstanding voting equity of the Company (either on a primary or a fully diluted basis); (C) filed a Notification and Report Form under the HSR Act, reflecting an intent to acquire the Company or any assets or securities of the Company; (D) acquired assets constituting 15% or more of the total assets or earning power of the Company taken as a whole; (E) entered into an agreement with the Company which contemplates the acquisition of (x) assets constituting 15% or more of the total assets or earning power of the Company taken as a whole or (y) beneficial ownership of 15% or more of the outstanding voting equity of the Company; (F) solicited "proxies" in a "solicitation" subject to the proxy rules under the Exchange Act, executed any written consent or become a "participant" in any "solicitation" (as such terms are defined in Regulation 14A under the Exchange Act), in each case with respect to the Common Stock; or (ii) any of the events described in Section 8.1(g) or (h) of the Merger Agreement that would allow Parent to terminate the Merger Agreement has occurred (but without the necessity of Parent having terminated the Merger Agreement). In the event that Parent wishes to exercise all or any part of the Option, Parent shall give written notice (the "Option Notice", with the date of the Option Notice being hereinafter called the "Notice Date") to the Stockholder specifying the number of Shares it will purchase and a place and date (not earlier than three (3) nor later than twenty (20) business days from the Notice Date) for closing such purchase (a "Closing"). Parent's obligation to purchase Shares upon any exercise of the Option, and the Stockholder's obligation to sell Shares upon any exercise of the Option, is subject (at the election of each of Parent or the Stockholder) to the conditions that (i) no preliminary or permanent injunction or 9 other order against the purchase, issuance or delivery of the Shares issued by any federal, state or foreign court of competent jurisdiction shall be in effect (and no action or proceeding shall have been commenced or threatened for purposes of obtaining such an injunction or order) and (ii) any applicable waiting period under the HSR Act shall have expired. The Parent's obligation to purchase Shares upon any exercise of the Option is further subject (at its election) to the condition that there shall have been no material breach of the representations, warranties, covenants or agreements of the Stockholder contained in this Agreement or of the Company contained in the Merger Agreement. Notwithstanding the foregoing, any failure by Parent to purchase Shares upon exercise of the Option at any Closing as a result of the non-satisfaction of any of the foregoing conditions shall not affect or prejudice Parent's right to purchase such Shares upon the subsequent satisfaction of such conditions. The Stockholder's obligation to sell Shares upon any exercise of the Option (and the Stockholder's obligations under Section 5 of this Agreement) is subject (at its election) to the further conditions that there shall have been no material breach of the representations, warranties, covenants or agreements of the Purchaser or the Parent contained in this Agreement or contained in the Merger Agreement, which breach has not been cured within thirty days of the receipt of written notice thereof from the Stockholder. (c) At any Closing, (i) the Stockholder will deliver to Parent the certificate or certificates representing the number of Shares being purchased in proper form for transfer upon exercise of the Option in the denominations designated by Parent in the Option Notice, and, if the Option has been exercised in part, a new Option evidencing the rights of Parent to purchase the balance of the Shares subject thereto, and (ii) Parent shall pay the aggregate purchase price for the Shares to be purchased by wire transfer of immediately available funds to an account, which account shall be designated in writing to Parent within five days after execution of this Agreement in the amount of the Exercise Price times the number of Shares to be purchased. (d) Notwithstanding any other provision of this Agreement, in the event that the Merger Agreement is terminated and at any time prior to the Termination 10 Date (as hereinafter defined) a person other than Parent or any of its affiliates acquires a majority of the outstanding shares of Common Stock at a price higher than the Exercise Price (an "Alternative Transaction"), then Parent shall promptly either reduce the number of Shares subject to the Option, pay cash to the Stockholder or do both such that the actual Total Profit (as hereinafter defined) realized or to be realized by Parent upon the consummation of an Alternative Transaction does not exceed 50% of the Total Profit that Parent would otherwise realize had it not taken the foregoing actions; provided that, in the event that Parent elects to reduce the number of Shares subject to the Option, there shall be pending, at the time Parent makes such election, a transaction involving the Company that, if consummated, would allow the Stockholder to dispose of any remaining Shares that would not otherwise be purchased by Parent upon the exercise of the Option; provided, further, that in the event such transaction is not consummated within three months following the time Parent makes such election, Parent shall, at the option of the Stockholder, purchase any remaining Shares held by the Stockholder such that Parent and the Stockholder each retain 50% of the Total Profit following such purchase. As used herein, the term "Total Profit" shall mean the aggregate amount (before taxes) of the net cash amounts and the fair market value (as reasonably determined by a nationally recognized investment banking firm acceptable to each of Parent and the Stockholder or, if one cannot be agreed upon, by Salomon Brothers, Inc.) of all other forms of consideration received or to be received by Parent pursuant to the sale of the aggregate number of Shares subject to the Option (or any other securities into which such Shares are converted or exchanged) in any Alternative Transaction, less the aggregate Exercise Price of all of such Shares. (e) In the event that Parent or the Purchaser pays a price higher than $18.00 per share for Shares tendered into the Offer, the Exercise Price shall be increased to equal such higher price. (f) The Stockholder has granted the Option to the Parent in order to induce Parent to enter into and consummate the transactions contemplated by the Merger Agreement. Parent covenants and agrees that it will perform its obligations under the Merger Agreement. 11 The provisions of this Section 7(f) are intended both for the benefit of the Stockholder and for the benefit of the Company and the other stockholders of the Company, and may not be modified, waived or amended without the consent of the Company. SECTION 8. Certain Other Agreements. (a) The Stockholder will notify the Purchaser immediately if any proposals are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with the Stockholder or its officers, directors, employees, investment bankers, attorneys, accountants or other agents, in each case in connection with any Takeover Proposal or Takeover Proposal Interest (as such terms are defined in the Merger Agreement) indicating, in connection with such notice, the name of the person indicating such Takeover Proposal Interest and the terms and conditions of any proposals or offers. The Stockholder agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Takeover Proposal Interest. The Stockholder agrees that it shall keep Parent informed, on a current basis, of the status and terms of any Takeover Proposal Interest. The Stockholder agrees that it will not, and will use its best efforts to ensure that its officers, directors, employees, investment bankers, attorneys, accountants and other agents do not, directly or indirectly: (i) initiate, solicit or encourage, or take any action to facilitate the making of, any offer or proposal which constitutes or is reasonably likely to lead to any Takeover Proposal, (ii) enter into any agreement with respect to any Takeover Proposal, or (iii) in the event of an unsolicited written Takeover Proposal engage in negotiations or discussions with, or provide any information or data to, any person (other than Parent, any of its affiliates or representatives and except for information which has been previously publicly disseminated by the Company) relating to any Takeover Proposal. The obligations provided for in this Section 8(a) shall become effective immediately following the execution and delivery of this Agreement by the parties hereto. (b) The Stockholder hereby agrees, if requested by Parent, to take all action necessary to waive 12 compliance by the Company with the provisions of Section 1105 of the Indenture relating to the timely issuance of a notice of redemption prior to the Redemption Date (as defined in the Indenture) in connection with the Company's redemption of the Secured Notes, pursuant to Section 106 of the Indenture; provided, however, that Parent shall indemnify and hold the Stockholder harmless in connection with the foregoing; provided, further that Parent's maximum liability in connection therewith shall be $14,500. SECTION 9. Further Assurances; Stockholder Capacity. (a) Each of the Stockholder shall, upon request of Parent or the Purchaser, execute and deliver any additional documents and take such further actions as may reasonably be deemed by Parent or the Purchaser to be necessary or desirable to carry out the provisions hereof and to vest the power to vote the Shares as contemplated by Section 5 hereof in Parent. (b) Nothing in this Agreement shall be construed to prohibit any affiliate of the Stockholder who is a member of the Board of Directors of the Company from taking any action solely in his capacity as a member of the Board of Directors of the Company to the extent specifically permitted by the Merger Agreement. SECTION 10. Termination. This Agreement, and all rights and obligations of the parties hereunder, shall terminate immediately upon the earlier of (a) the date (the "Termination Date") that is six months following the date upon which the Merger Agreement is terminated in accordance with its terms or (b) the Effective Time (as defined in the Merger Agreement); provided, however, that (i) in the event that an Option Notice is delivered prior to the Termination Date, the provisions set forth in Section 7 shall survive any termination of this Agreement, (ii) in the event that the Merger is consummated, the provisions set forth in Section 11 shall survive any termination of this Agreement. SECTION 11. Expenses. Except as provided in Section 7 hereof, all fees and expenses incurred by any one party hereto shall be borne by the party incurring such fees and expenses. 13 SECTION 12. Public Announcements. Each of Parent, the Purchaser and the Stockholder agrees that it will not issue any press release or otherwise make any public statement with respect to this Agreement or the transactions contemplated hereby without the prior consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, that such disclosure can be made without obtaining such prior consent if (i) the disclosure is required by law or by obligations imposed pursuant to any listing agreement with the Nasdaq National Market and (ii) the party making such disclosure has first used its best efforts to consult with the other party about the form and substance of such disclosure. SECTION 13. Miscellaneous. (a) Capitalized terms used and not otherwise defined in this Agreement shall have the respective meanings assigned to such terms in the Merger Agreement. (b) All notices and other communications hereunder shall be in writing and shall be deemed given upon (i) transmitter's confirmation of a receipt of a facsimile transmission, (ii) confirmed delivery by a standard overnight carrier or when delivered by hand or (iii) the expiration of five business days after the day when mailed in the United States by certified or registered mail, postage prepaid, addressed at the following addresses (or at such other address for a party as shall be specified by like notice): (A) if to the Parent or Purchaser, to: c/o American Industrial Partners One Maritime Plaza, Suite 2525 San Francisco, CA 94111 Telephone: (415) 788-7354 Facsimile: (415) 788-5302 Attention: Lawrence W. Ward, Jr. 14 with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP 919 Third Avenue New York, New York 10022 Telephone: (212) 735-3700 Facsimile: (212) 735-2000 Attention: Peter A. Atkins and (B) if to the Stockholder, to: PPM America, Inc. 225 West Wacker Drive, Suite 1100 Chicago, Illinois 60606 Telephone: (312) 634-2500 Facsimile: (312) 634-0053 Attention: F. John Stark, III with a copy to: Anderson Kill & Olick, P.C. 1251 Avenue of the Americas New York, New York 10020 Telephone: (212) 278-1000 Facsimile: (212) 278-1733 Attention: J. Andrew Rahl, Jr. (c) The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. (d) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which shall be considered one and the same agreement. (e) This Agreement (including the Merger Agreement and any other documents and instruments referred to herein) constitutes the entire agreement, and supersedes all prior agreements and understandings, whether written and oral, among the parties hereto with respect to the subject matter hereof. 15 (f) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware without giving effect to the principles of conflicts of laws thereof. (g) Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by, the parties and their respective successors and assigns, and the provisions of this Agreement are not intended to confer upon any person other than the parties hereto any rights or remedies hereunder. (h) If any term, provision, covenant or restriction herein is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. (i) Each of the parties hereto acknowledges and agrees that in the event of any breach of this Agreement, each non-breaching party would be irreparably and immediately harmed and could not be made whole by monetary damages. It is accordingly agreed that the parties hereto (i) will waive, in any action for specific performance, the defense of adequacy of a remedy at law and (ii) shall be entitled, in addition to any other remedy to which they may be entitled at law or in equity, to compel specific performance of this Agreement in any action instituted in any state or federal court sitting in Wilmington, Delaware. The parties hereto consent to personal jurisdiction in any such action brought in any state or federal court sitting in Wilmington, Delaware and to service of process upon it in the manner set forth in Section 13(b) hereof. (j) No amendment, modification or waiver in respect of this Agreement shall be effective against any party unless it shall be in writing and signed by such party. 16 IN WITNESS WHEREOF, Parent, the Purchaser and the Stockholder has caused this Agreement to be duly executed and delivered as of the date first written above. AMERICAN INDUSTRIAL PARTNERS ACQUI- SITION COMPANY, LLC By /s/ Lawrence W. Ward, Jr. ________________________________ Name: Lawrence W. Ward, Jr. Title: BUCYRUS ACQUISITION CORP. By /s/ Lawrence W. Ward, Jr. ________________________________ Name: Lawrence W. Ward, Jr. Title: JACKSON NATIONAL LIFE INSURANCE COMPANY By: PPM AMERICA, INC. As Attorney-In-Fact By /s/ F. John Stark, III ________________________________ Name: F. John Stark, III Title: Senior Vice President and General Counsel 17 EX-99 4 EXHIBIT 4 EXHIBIT 4 JOINT PROSECUTION AGREEMENT This Agreement is dated as of the 21st day of August, 1997 by and among BUCYRUS INTERNATIONAL, INC. ("BI"), and JACKSON NATIONAL LIFE INSURANCE COMPANY ("JNL"), both for itself and in its capacity as a representative of the estate of Bucyrus Erie Company ("Bucyrus") pursuant to Section 1123(b)(3)(b) of the Bankruptcy Code. WHEREAS, BI is the successor in interest to Bucyrus-Erie Company ("Bucyrus") and B-E Holdings, Inc. ("Holdings" and, collectively with Bucyrus, the "Debtors") under the Debtors' Second Amended Plan of Reorganization (the "Plan") which was consummated on December 14, 1994 in proceedings (the "Bankruptcy Proceedings") captioned In re B-E Holdings, Inc. and Bucyrus-Erie Company, Case Nos. 94-20786, 94-20787 (Bankr.E.D.Wis.) (RAE) in the United States Bankruptcy Court for the Eastern District of Wisconsin (the "Bankruptcy Court"); WHEREAS, JNL objected in February, 1995 to the application for compensation of fees and expenses of Milbank, Tweed, Hadley & McCloy ("Milbank") for its representation of Bucyrus in the Bankruptcy Proceedings, JNL appealed the Bankruptcy Court's partial award of fees and expenses to from Bucyrus to Milbank in April 1996, Bucyrus subsequently joined in that objection in January, 1997 and JNL and Bucyrus are now prosecuting that objection and seeking disgorgement to Bucyrus of up to approximately $1.8 million of fees and expenses previously paid to Milbank (the "Disgorgement Claim"), as well as sanctions and other relief; WHEREAS, the Disgorgement Claims would have been lost but for the efforts of JNL to preserve Bucyrus' rights in them by objecting to Milbank's fee application, appealing the Bankruptcy Court's allowance of Milbank's fees and thereafter discovering Milbank's fraud on the Bankruptcy Court, Bucyrus and JNL in the course of monitoring the trial between Mikael Salovaara and Alfred C. Eckert, all at great effort and expense to JNL at a time when Milbank still represented Bucyrus; WHEREAS, BI and JNL each have additional claims against Milbank and each of them had contemplated commencing separate additional actions against Milbank, its partners and others for malpractice, fraud and other claims related to and in connection with Milbank's representation of the Debtors and BI and other matters before, during and after the Bankruptcy Proceedings; WHEREAS, Milbank has asserted that it will pursue counterclaims and other legal remedies against both BI and JNL if they in fact pursue any of their claims against Milbank; WHEREAS, Milbank has also alleged that BI owes payment to Milbank for billed and unbilled fees, expenses and other charges arising after December 14, 1994 in an alleged amount of approximately $1,000,000 (collectively, the "Milbank Fees"); WHEREAS, BI and JNL both believe that their respective Milbank Claims may in some instances overlap, be duplicative of or conflict with each other and JNL and BI also disagree as to the extent to which each of them has the right to prosecute and retain the proceeds of certain of such claims; 2 WHEREAS, BI wishes to avoid the cost and expenditure of time and effort involved in prosecuting claims against Milbank and defending any counterclaims and other proceedings brought by Milbank in response to such claims and Jackson has agreed to advance such costs and expenses on behalf of BI and to indemnify BI for them; WHEREAS, BI and JNL both wish to avoid the potential for confusion and conflict which may ensue if they separately prosecute their respective claims against Milbank; WHEREAS, JNL made an application for reimbursement of its professional fees and expenses incurred in the Bankruptcy Proceedings pursuant to Section 503(b) of the Bankruptcy Code (the "503(b) Claim"), the Bankruptcy Court allowed that application to the extent of $500, JNL appealed the Bankruptcy Court's ruling to the United States District Court for the Eastern District of Wisconsin, that court has now referred the 503(b) Claim back to the Bankruptcy Court and BI continues to oppose the 503(b) Claim; and WHEREAS, BI and JNL believe that continuing the dispute between them over the 503(b) Claim may impede their ability to prosecute the Milbank Claims and they accordingly both wish to compromise and settle their disagreements over the 503(b) Claim and the prosection of claims against Milbank; NOW, THEREFORE, the parties have agreed as follows: 1. Effective September 1, 1997, JNL and BI shall jointly prosecute all of their respective claims against Milbank (collectively, the "Milbank Claims") in their respective names 3 subject to the terms and conditions of this Agreement. All proceeds of the Milbank Claims will be allocated as follows: (i) first, to pay, or to reimburse the prior payment of, all bona fide third party costs, expenses and liabilities incurred on or after September 1, 1997 in connection with the Milbank Claims including, without limitation, the reasonable fees and disbursements of counsel and other professional advisors and all other amounts contemplated by the first sentence of Paragraph 2 below; (ii) the next $8,675,000 of proceeds from the Milbank Claims, if any, will be paid to JNL, provided that Bucyrus will retain ten percent of the proceeds of the Disgorgement Claim, if any, and direct payment to JNL of the balance of such proceeds; and (iii) all additional proceeds of the Milbank Claims will be divided equally between JNL and BI. Notwithstanding the foregoing, BI shall also receive the benefit of any reduction of any obligation it may have to pay the Milbank Fees. JNL and BI will each provide the other with all such documentation available to it which evidences expenses contemplated by this Paragraph 1 as the other party shall reasonably request. JNL may, in its discretion after consultation with the designated representative of BI, direct prosecution of the Milbank Claims in a manner and to the extent which JNL reasonably deems necessary to minimize the cost and expense of doing so, provided, however, that BI and JNL shall at all times vigorously prosecute the defense of Milbank's claims or counterclaims for the Milbank Fees. 2. JNL shall advance all of the costs and expenses of prosecuting the Milbank Claims incurred on or after September 1, 4 1997 and shall indemnify and hold BI and the Debtors harmless in connection with all of the Milbank Claims on the same terms and conditions as those which were provided for in the Indemnification Agreement dated as of November 30, 1994 between the Debtors and JNL as if the Milbank Claims were "Claims" thereunder. Notwithstanding the foregoing, BI shall bear the cost of: (i) its own reasonable general and administrative expenses for work done and time spent by employees who are not officers; (ii) the first fifteen days of interview, preparation, deposition, witness or related time spent by officers of BI other than Willard R. Hildebrand; (iii) incidental time spent by officers of BI; (iv) BI's own gross negligence, willful misconduct and its actions or omissions taken or made in contravention of the terms and conditions of this Agreement; and (v) payment (as distinguished from netting), if any, of the Milbank Fees. JNL may direct and implement the manner of prosecution and terms of settlement or other resolution of the Milbank Claims in its discretion, provided that if JNL for any reason elects to resolve, settle or cease prosecution of any or all of the Milbank Claims, JNL shall give BI notice of its decision to do so. BI thereupon may, but shall not be obligated to, elect within ten business days to prosecute such Milbank Claims upon payment to JNL of all amounts JNL would have received under this Agreement, if any, after giving effect to the terms of such proposed resolution, settlement or cessation of prosecution as to which JNL has given BI notice, whereupon BI may thereafter prosecute such Milbank Claims, and retain all recoveries 5 therefrom, at its own cost and expense. In that event, BI thereafter shall indemnify and hold JNL harmless on the terms and conditions of the first two sentences of this Paragraph 2 as if BI were the indemnifying party and JNL the indemnified party thereunder and this Paragraph 2 shall otherwise thereafter be of no further force and effect as to the Milbank Claims in question. 3. JNL and BI agree to settle and resolve the 503(b) Claim on the terms and conditions set forth in, and as evidenced by, a Settlement Agreement in the form of Exhibit A attached. 4. BI, the Debtors and JNL have shared and will continue to share legal advice, work product, attorney-client privileged communications and other confidential information received from their respective counsel which pertains to the Claims (collectively, together with the terms and conditions of this Agreement, the "Confidential Information"), and they agree that when any Confidential Information has been or is shared, their respective counsel have been and will be acting as consultants to one another in conjunction with the Claims. BI and JNL each waive all conflicts of interest, if any, which their respective counsel have or might have had with respect to the Milbank Claims of the other. 5. JNL and BI each covenant and agree with the other that they each will provide the other with all information and all other cooperation which they reasonably can provide in order to effectuate the proposes of this Agreement, to promote the parties' ability to prosecute the Milbank Claims on the terms and conditions of this Agreement, as well as any other claims which 6 JNL may in its discretion pursue against Non-Released Persons under the Plan and any other party connected with the Bankruptcy Proceedings (collectively, the "Claims"), and otherwise to comply with the terms and conditions of this Agreement. Without limitation of the foregoing, JNL, BI and the Debtors will at all times: (i) to the extent they have any right to do so, make all of their present and former officers and employees available to cooperate in prosecuting the Claims and cause them to do so; (ii) share and make available, and allow the review and copying of all documents and other information which may be relevant to the Claims; and (iii) execute and deliver any and all agreements, documents and instruments, in their own name or otherwise, to the full extent of their legal power and authority, which either JNL or BI may reasonably request in order to prosecute and pursue the Claims pursuant to and in accordance with the terms of this Agreement. JNL and BI shall each be entitled to injunctive relief to enforce the terms and conditions of this Paragraph 5. 6. Nothing in this Agreement shall constitute or is intended to be a waiver of any attorney-client, work product or any other privilege or immunity, including protections or requirements imposed by or available under any applicable law. All documents and other information contemplated hereby shall remain jointly subject to the attorney-client privilege and the work product privilege, and will be kept confidential by JNL and BI, except as reasonably needed to review, pursue and litigate the Claims. Each of the parties to this Agreement agrees that it will not disclose any Confidential Information, except to the 7 extent reasonably necessary to implement the terms and conditions of this Agreement, to prosecute the Claims and as otherwise required by applicable law or a court or government agency of competent jurisdiction, in each case to the extent that the same: (i) is not publicly available; or (ii) was not or could not be obtained from another source not bound by any obligation of confidentiality to either party hereto. Without limitation of the foregoing, if either party receives any subpoena or other request for disclosure of Confidential Information, the party receiving the same shall so notify the other party as promptly as practicable and both parties shall cooperate with each other in any efforts which either of them reasonably elects to pursue at their own expense in order to preserve the confidentiality of the information in question. 7. Nothing in this Agreement shall constitute an agreement by BI or JNL to limit its freedom or ability to make its own independent, unilateral decisions about the conduct of its business or any other matter, except to the extent expressly set forth in this Agreement. This Agreement is intended to facilitate cooperation between BI and JNL in reviewing, pursuing and litigating the Claims. BI and JNL hereby covenant that they will act in good faith toward one another in their use of the Confidential Information and will make all reasonable efforts to protect each other's interest when using any Confidential Information received from one another in reviewing, pursuing and litigating the Claims. 8 8. Nothing in this Agreement shall be construed as limiting or waiving the right of Jackson to pursue or realize all of the proceeds of any Claim which is not a Milbank Claim. Nothing in this Agreement shall be construed as an admission by any person that any claim, defense or objection of any other person has merit. Nothing in this Agreement shall constitute or evidence an assignment by either party hereto of any of its rights in its own respective Milbank Claims to the other. 9. BI and JNL each represent and warrant to the other that it has the requisite power and authority under its respective organizational documents and otherwise (if applicable) to execute and deliver this Agreement, that this Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, and is enforceable against it in accordance with its terms. No other representations or warranties of any kind have been made to induce any party to enter into this Agreement. This Agreement represents the entire agreement between the parties and supersedes all prior negotiations, representations or agreements between the parties, either written or oral, on the subject hereof including, without limitation, the Joint Privilege and Confidentiality Agreement between the parties hereto dated April 9, 1997, which shall be of no further force and effect as to future events. No amendment, change or modification of any provision of this Agreement, or any waiver thereof, shall be effective unless in writing signed by the party to be charged. BI and JNL shall each bear their own costs and expenses incurred 9 prior to September 1, 1997 and otherwise in connection with the negotiation, execution and delivery of this Agreement. This Agreement shall bind and inure to the benefit of the principals, agents, representatives, successors, heirs and assigns of the parties hereto. 10. The parties agree to resolve any controversy or dispute arising under or relating to this Agreement (except to the extent otherwise provided in Paragraph 5) in binding arbitration before a panel of the American Arbitration Association, or another alternative dispute resolution forum mutually acceptable to the parties, and pursuant to the rules and procedures of that organization. Any such arbitration will take place in New York City. The terms and language of this Agreement are the result of negotiations between the parties hereto and there shall be no presumption that any ambiguities in this Agreement should be resolved against either party hereto. Any controversy concerning the construction of this Agreement shall be decided without regard to authorship. 11. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original. This Agreement shall in all respects be interpreted, enforced, governed and construed by and under the laws of the State of New York without reference to principles of conflicts of law or choice of law. 10 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above. By: /s/ Willard R. Hildebrand --------------------------------- for Bucyrus International, Inc., Bucyrus-Erie Company and B-E Holdings, Inc. By: /s/ F. John Stark, III ---------------------------------- PPM America, Inc., as attorney-in- fact for Jackson National Life Insurance Company EX-99 5 EXHIBIT 5 EXHIBIT 5 SETTLEMENT AGREEMENT This agreement is made and entered into effective this 21st day of August, 1997, by and among BUCYRUS INTERNATIONAL, INC. ("BI") and JACKSON NATIONAL LIFE INSURANCE COMPANY ("JNL"). WHEREAS, BI is the successor in interest to Bucyrus-Erie Company ("Bucyrus") and B-E Holdings, Inc. ("Holdings" and, collectively with Bucyrus, the "Debtors") under the Debtors' Second Amended Plan of Reorganization (the "Plan") which was consummated on December 14, 1994 in proceedings captioned In re B-E Holdings, Inc. and Bucyrus-Erie Company, Case Nos. 94-20786, 94-20787 (Bankr. E.D. Wis.) (RAE) (the "Bankruptcy Proceedings") in the United States Bankruptcy Court for the Eastern District of Wisconsin (the "Bankruptcy Court"); WHEREAS, JNL made an application for reimbursement of its professional fees and expenses incurred in the Bankruptcy Proceedings pursuant to Section 503(b) of the Bankruptcy Code (the "503(b) Claim"), the Bankruptcy Court allowed that application to the extent of $500, JNL appealed the Bankruptcy Court's ruling to the United States District Court for the Eastern District of Wisconsin and that court has now referred the 503(b) Claim back to the Bankruptcy Court for further proceedings; and WHEREAS, BI and JNL both wish to compromise and settle their disagreements over the 503(b) Claim; NOW, THEREFORE: 1. BI and JNL have agreed to settle and resolve the 503(b) Claim for a cash payment to JNL of $200,000. JNL and BI also jointly agree to petition the Bankruptcy Court to withdraw its June 6, 1996 ruling with respect to the 503(b) Claim. The settlement of the 503(b) claim will be evidenced by a Stipulation and Order of Dismissal in the form of Exhibit A attached. The parties shall also execute and deliver a mutual release in the form of Exhibit B attached. 2. It is expressly understood that this Agreement is subject to and expressly contingent upon the entry of a final, non-appealable order of the Bankruptcy Court in the Bankruptcy Proceedings. 3. Nothing in this Agreement shall be construed as an admission by any person that any claim, defense or objection of any other person has merit. This Agreement represents the entire agreement between the parties and supersedes all prior negotiations, representations or agreements between the parties, either written or oral, on the subject hereof. The parties warrant and represent, each to the other, that they have been fully informed and have full knowledge of the terms, conditions and legal effects of this Agreement, and that each party is authorized to enter into this Agreement and related instruments. No amendment, change or modification of any provision of this Agreement, or any waiver thereof, shall be effective unless in writing signed by the party to be charged. BI and JNL shall each bear their own costs and expenses incurred in connection with the negotiation, execution and delivery of this Agreement. This Agreement shall bind and inure to the benefit of the principals, agents, representatives, successors, heirs and assigns of the parties hereto. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above. By: /s/ W.R. HILDEBRAND ------------------------------------- W.R. Hildebrand for Bucyrus International, Inc., Bucyrus-Erie Company and B-E Holdings, Inc. By: /s/ F. JOHN STARK, III ------------------------------------- F. John Stark, III PPM America, Inc., as attorney-in-fact for Jackson National Life Insurance Company -----END PRIVACY-ENHANCED MESSAGE-----