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UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington,
D.C. 20549
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FORM 8-K
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Current Report
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Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
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Date of Report (Date of earliest
event reported): April 3,
2009
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CATERPILLAR
INC.
(Exact name of registrant as
specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation)
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1-768
(Commission File
Number)
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37-0602744
(IRS Employer Identification
No.)
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100 NE Adams Street, Peoria,
Illinois
(Address of principal executive
offices)
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61629
(Zip
Code)
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Registrant's telephone number,
including area code: (309)
675-1000
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Former name or former address, if
changed since last report: N/A
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Check the appropriate box below if
the Form 8-K filing is intended to simultaneously satisfy the filing
obligation of the registrant under any of the following
provisions:
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o
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Written communications pursuant to
Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR
230.425)
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o
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Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01.
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Entry into a Material Definitive
Agreement.
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Effective April 3,
2009, Caterpillar Inc. (“Caterpillar”) entered into a Truck Business
Relationship Agreement (“Truck Business Relationship Agreement’) with Navistar
International Corporation and one of its principal operating subsidiaries,
Navistar Inc. (“Navistar”), pursuant to which Caterpillar and Navistar will form
a 50/50 joint venture limited liability company (“Joint Venture Company”) to
develop, produce, market, sell, distribute and provide support for, heavy and
certain medium-duty trucks outside of North America and the Indian subcontinent
(“Joint Venture Business”), upon satisfaction of certain conditions.
Additionally, pursuant to the Truck Business Relationship Agreement, Caterpillar
and Navistar will also enter into a strategic alliance involving the
development, design, manufacture and sale of Caterpillar-branded heavy-duty
severe service trucks in North America.
The Truck Business
Relationship Agreement contains certain customary representations, warranties
and covenants of Caterpillar and Navistar. Among other things,
Caterpillar and Navistar are subject to restrictions on their ability to solicit
proposals, provide information, engage in discussions or enter into an agreement
regarding any new joint venture or strategic alliance similar to the
transactions described in the Truck Business Relationship
Agreement. The Truck Business Relationship Agreement requires the
parties to indemnify one another for certain losses resulting from breaches of
their respective representations, warranties and covenants and contains a number
of termination provisions, including termination by either party if the
transaction does not close by September 30, 2009. In certain
specified circumstances, a party is required to reimburse the other party’s
out-of-pocket fees and expenses.
The closing of the
transactions contemplated in the Truck Business Relationship Agreement is
subject to a number of closing conditions, including agreement upon certain
items set forth in the Truck Business Relationship Agreement and the execution
and delivery of the joint venture operating agreement, the strategic alliance
agreement and certain ancillary agreements.
The foregoing
description of the Truck Business Relationship Agreement is a summary and is
qualified in its entirety by the terms and provisions of the Truck Business
Relationship Agreement filed as Exhibit 99.1 to this report, and incorporated
herein by reference.
On April 6, 2009,
Caterpillar and Navistar issued a press release announcing the execution of the
Truck Business Relationship Agreement. A copy of the press release is
furnished under this report as Exhibit 99.2 and is incorporated herein by
reference.
Joint
Venture Operating Agreement
Upon the
consummation of the transactions set forth in the Truck Business Relationship
Agreement and in connection with the formation of the Joint Venture Company,
Caterpillar, Navistar and the Joint Venture Company will enter into a Joint
Venture Operating Agreement (the “Operating Agreement”) to conduct the Joint
Venture Business. The Operating Agreement will be the Joint Venture
Company’s primary operating document and contain the understanding and agreement
of the parties regarding the governance and operation of the Joint Venture
Business. The Joint Venture Business, which does not include sales to military
customers, may be revised, in Caterpillar’s discretion, after six years
following the execution of the Operating Agreement to exit the medium-duty,
cab-over engine truck business.
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Caterpillar and
Navistar will each provide the Joint Venture Company with certain products and
services pursuant to the terms of one or more sales and services
agreements. Navistar may also require the Joint Venture to develop,
design, test, manufacture, and assemble medium and heavy-duty, cab-over engine
trucks, and replacement parts therefor, to sell to Navistar for resale in North
America pursuant to one or more sales and services agreements. In the
event that Navistar sources heavy duty, cab over engine trucks from the Joint
Venture for resale in North America, the market share of vocational heavy-duty,
cab-over engine trucks is equal to or greater than 10% of the total market share
of vocational heavy-duty trucks in North America or upon approval of the Joint
Venture’s Board of Directors, Caterpillar may require the Joint Venture Company
to develop, design, test, manufacture, and assemble vocational heavy-duty,
cab-over engine trucks, and replacement parts therefor, to sell to Caterpillar
for resale in North America pursuant to one or more sales and services
agreements.
Under the Operating
Agreement, each of Caterpillar and Navistar will initially own 50% of the
ownership interests in the Joint Venture Company. Upon the execution
of the Operating Agreement, each of Caterpillar and Navistar will contribute
$45.5 to the Joint Venture as an initial capital contribution. In
addition, each of Caterpillar and Navistar are committed to provide the Joint
Venture Company with up to an additional $123.4 million of required funding over
the following three years. Each year the Board of Directors of the
Joint Venture Company must agree to an annual and a five-year rolling business
plan, which include additional three year funding commitments.
Pursuant to the
Operating Agreement, the Joint Venture Company will have a Board of Directors
consisting of six directors, with Caterpillar and Navistar each appointing three
of the directors. A President, appointed by Navistar, will manage the
Joint Venture Company’s day-to-day operations. The President and the
Chief Financial Officer, which shall be appointed by Caterpillar, will each be
appointed for a three year term. The initial term of the Operating
Agreement will be 25 years, subject to five-year extensions upon written
agreement of Caterpillar and Navistar. The Operating Agreement
contains various termination provisions; however, the Joint Venture Business may
not be terminated by either Caterpillar or Navistar without mutual consent
unless a material breach, a deadlock with respect to an annual or a five-year
rolling business plan (at least five years after execution of the Operating
Agreement), a dilution of Caterpillar’s or Navistar’s ownership interest below
25%, or a change of control of Caterpillar or Navistar has occurred, whereupon a
party may terminate the Operating Agreement or, in certain instances, buyout the
other party pursuant to the terms of the Operating Agreement.
Under the Operating
Agreement, the Joint Venture Company, Caterpillar, Navistar and their affiliates
are subject to various exclusivity and non-competition
provisions. Subject to certain exceptions, Caterpillar, Navistar and
their affiliates are prohibited from engaging in business, either directly or
indirectly, within the scope of the Joint Venture Business.
The form of
Operating Agreement to be executed in connection with the formation of the Joint
Venture Company is attached as an Exhibit 1 to the Truck Business Relationship
Agreement and is incorporated herein by reference. The foregoing description of
the Operating Agreement does not purport to be complete and is qualified in its
entirety by reference to the Operating Agreement.
Cautionary Statement
The Truck Business Relationship
Agreement is included in this report to provide investors with information
regarding its terms. Except for its status as a contractual document that
establishes and governs the legal relations between Caterpillar and Navistar as
parties thereto with respect to the transaction described in this report, the
Truck Business Relationship Agreement is not intended to be a source of factual,
business or operational information about Caterpillar or
Navistar.
Page 3
The representations, warranties,
covenants and agreements made by the parties in the Truck Business Relationship
Agreement are made and valid as of the execution date thereof. In addition,
certain of the representations and warranties are subject to a contractual
standard of materiality that may be different from what may be viewed as
material to stockholders. Representations and warranties may be used as a tool
to allocate risks between the respective parties to the Truck Business
Relationship Agreement, including where the parties do not have complete
knowledge of all the facts. Investors are not third-party beneficiaries under
the Truck Business Relationship Agreement and should not rely on the
representations, warranties and covenants or any descriptions thereof as
characterizations of the actual state of facts or condition of the parties or
any of their affiliates.
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Item
8.01.
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Other
Events.
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On April 6, 2009,
Caterpillar issued a press release announcing the execution of the Truck
Business Relationship Agreement between Caterpillar and Navistar for the purpose
of forming a 50/50 joint venture that will pursue commercial truck opportunities
outside of North America and the Indian subcontinent and entering into a
strategic alliance to produce
Caterpillar heavy-duty vocational trucks for sale in North
America. A copy of the press release is furnished under this
report as Exhibit 99.2 and is incorporated herein by reference.
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Item
9.01.
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Financial
Statements and Exhibits.
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(d)
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Exhibits:
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Truck
Business Relationship Agreement
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Joint Press
Release of Caterpillar Inc. and Navistar dated April 6, 2009, Announcing
the Entry into the Truck Business Relationship
Agreement
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*********************************************************************
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SIGNATURES
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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
thereunto duly authorized.
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CATERPILLAR
INC.
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By:
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/s/
James B. Buda
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Dated:
April 7, 2009
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James B.
Buda
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Vice
President, General Counsel and Secretary
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