<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 18, 1998
REGISTRATION NO. 333-55763
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2 TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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GRADALL INDUSTRIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 3531 36-3381606
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
406 MILL AVENUE SW
NEW PHILADELPHIA, OH 44663
(330) 339-2211
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
BRUCE A. JONKER
VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
GRADALL INDUSTRIES, INC.
406 MILL AVENUE SW
NEW PHILADELPHIA, OH 44663
(330) 339-2211
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
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<S> <C>
ANTHONY E. EFREMOFF, ESQ. WINTHROP B. CONRAD, JR., ESQ.
Black, McCuskey, Souers & Arbaugh Davis Polk & Wardwell
1000 United Bank Plaza 450 Lexington Avenue
220 Market Avenue South New York, New York 10017
Canton, Ohio 44702 (212) 450-4000
(330) 456-8341
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after the Registration Statement becomes
effective.
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If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
-------------------------------------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the fees and expenses, other than
underwriting discounts and commissions, payable by the Company in connection
with the Offering. All of such expenses except the Securities and Exchange
Commission registration fee and the NASD filing fee are estimated:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $10,220.00
NASD filing fee............................................. 3,965.00
Printing and engraving expenses............................. 65,000.00
Accounting fees and expenses................................ 35,000.00
Legal fees and expenses..................................... 25,000.00
Transfer Agent fees and expenses............................ 2,000.00
Blue Sky fees and expenses and legal fees................... 5,000.00
Miscellaneous............................................... 815.00
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Total............................................. 147,000.00
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, as amended, provides
with regard to indemnification of directors and officers as follows:
145. Indemnification of Officers, Directors, Employees and Agents;
Insurance. (a) A corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
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(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made
(1) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum, or (2) if there are no
such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
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director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement,
vote of stockholders or disinterested directors, or otherwise. The Court of
Chancery may summarily determine a corporation's obligation to advance
expenses (including attorneys' fees).
Section 102(b)(7) of the Delaware General Corporation Law, as amended,
provides in regard to the limitation of liability of directors and officers as
follows:
(b) In addition to the matters required to be set forth in the
certificate of incorporation by subsection (a) of this section, the
certificate of incorporation may also contain any or all of the following
matters:
* * *
(7) A provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, provided that such provision shall
not eliminate or limit the liability of a director: (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under section 174 of this
title; or (iv) for any transaction from which the director derived an
improper personal benefit. No such provision shall eliminate or limit the
liability of a director for any act or omission occurring prior to the date
when such provision becomes effective. All references in this paragraph to
a director shall also be deemed to refer (x) to a member of the governing
body of a corporation which is not authorized to issue capital stock, and
(y) to such other person or persons, if any, who, pursuant to a provision
of the certificate of incorporation in accordance with sec.141(a) of this
title, exercise or perform any of the powers or duties otherwise conferred
or imposed upon the board of directors by this title.
Article Seventh of the Certificate of Incorporation of the Company provides
with regard to indemnification of directors and officers as follows:
SEVENTH: The Corporation shall, to the full extent permitted by
Section 145 of the Delaware General Corporation Law, as amended from time
to time, indemnify all persons whom it may indemnify pursuant thereto.
ITEM 16. EXHIBITS.
The list of exhibits is incorporated herein by reference to the Index to
Exhibits on page E-1.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes that:
(1) The undersigned registrant hereby undertakes to provide to the
underwriter at the closing specified in the underwriting agreements,
certificates in such denominations and registered in such names as required
by the underwriter to permit prompt delivery to each purchaser.
(2) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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(3) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Company pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(4) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment No. 2 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of New
Philadelphia, State of Ohio, on this 18th day of June, 1998.
GRADALL INDUSTRIES, INC.
By: /s/ Bruce A. Jonker
------------------------------------
Name: Bruce A. Jonker
Title: Vice President,
Chief Financial
Officer and Treasurer
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POWER OF ATTORNEY
The Registrant and each person whose signature appears below constitutes
and appoints Bruce A. Jonker and Barry L. Phillips, and any agent for service
named in this Registration Statement and each of them, his, her or its true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him, her or it and in his her, or its name, place and stead,
in any and all capacities, to sign and file (i) any and all amendments
(including post-effective amendments) to this Registration Statement, with all
exhibits thereto, and other documents in connection therewith, and (ii) a
registration statement, and any and all amendments thereto, relating to the
offering covered hereby filed pursuant to Rule 462(b) under the Securities Act
of 1933, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and things requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he, she, or it
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
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* President -- Chief Executive Officer June 18, 1998
- ------------------------------------------------ (Principal Executive Officer and Director)
Barry L. Phillips
/s/ Bruce A. Jonker Vice President, Chief Financial Officer June 18, 1998
- ------------------------------------------------ and Treasurer (Principal Financial Officer
Bruce A. Jonker and Principal Accounting Officer)
* Chairman of the Board and Director June 18, 1998
- ------------------------------------------------
Sangwoo Ahn
* Director June 18, 1998
- ------------------------------------------------
Ernest Green
* Director June 18, 1998
- ------------------------------------------------
Perry J. Lewis
* Director June 18, 1998
- ------------------------------------------------
John A. Morgan
* Director June 18, 1998
- ------------------------------------------------
William C. Ughetta, Jr.
* Director June 18, 1998
- ------------------------------------------------
David S. Williams
* Director June 18, 1998
- ------------------------------------------------
Jack D. Rutherford
By: /s/ Bruce A. Jonker Attorney-in-Fact
- -----------------------------------------------
Bruce A. Jonker
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NO. DESCRIPTION PAGE NO.
- ------- ----------- ----------
<C> <S> <C>
1.01 Form of Underwriting Agreement..............................
4.01 Form of Amended and Restated Certificate of Incorporation of
the Registrant (incorporated by reference to Exhibit 3.01 of
Gradall Industries, Inc.'s Annual Report on Form 10-K for
the fiscal year ended December 31, 1997)....................
4.02 Bylaws of the Registrant (incorporated by reference to
Exhibit 3.02 of Gradall Industries, Inc.'s Annual Report on
Form 10-K for the fiscal year ended December 31, 1997)......
4.03 Specimen Certificate for the Common Stock, par value $.001
per share, of the Registrant (incorporated by reference to
Exhibit 4.01 of Gradall Industries, Inc.'s Registration
Statement on Form S-1 (No. 333-06777))......................
5.01 Opinion of Black, McCuskey, Souers & Arbaugh+
10.01 Amended and Restated Shareholders Agreement dated August 20,
1996 (incorporated by reference to Exhibit 10.03 of Gradall
Industries, Inc.'s Registration Statement on Form S-1
(No. 333-06777))............................................
10.02 Rights Agreement dated as of May 29, 1998 between the
Company and ChaseMellon Shareholder Services, L.L.C., as
Rights Agent (incorporated by reference to Exhibit 1 of
Gradall Industries, Inc.'s Registration Statement on Form
8-A dated June 4, 1998).....................................
23.01 Consent of Coopers & Lybrand L.L.P..........................
23.03 Consent of Black, McCuskey, Souers & Arbaugh (included in
their opinion filed
as Exhibit 5.01)............................................
24.01 Powers of Attorney of certain officers and directors of the
Registrant+.................................................
</TABLE>
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+ Filed previously.
<PAGE> 1
Exhibit 1.01
2,000,000 Shares of Common Stock(1)
UNDERWRITING AGREEMENT
----------------------
June -, 1998
McDonald & Company Securities, Inc.
SBC Warburg Dillon Read Inc.
As Representatives of the Several Underwriters
c/o McDonald & Company Securities, Inc.
McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114
Dear Sirs:
SECTION 1. Introductory. Gradall Industries, Inc., a Delaware
corporation (the "COMPANY"), proposes to issue and sell 500,000 shares of its
common stock, $.001 par value (the "COMMON STOCK"), which are authorized but
unissued, and MLGA Fund II, L.P. (the "SELLING STOCKHOLDER") proposes to sell
1,500,000 outstanding shares of Common Stock, to the public through the
underwriters named in Schedule A annexed hereto (the "UNDERWRITERS") for whom
you are acting as the Representatives. The shares of Common Stock to be
purchased from the Company and Selling Stockholder are hereinafter referred to
as the "FIRM STOCK." The Company also proposes to sell to the Underwriters, at
their option, an aggregate of not more than 300,000 additional shares of Common
Stock, which are hereinafter referred to as the "OPTION STOCK." The Firm Stock
and the Option Stock are hereinafter collectively referred to as the "STOCK" and
are more fully described in the Registration Statement and the Prospectus (as
hereinafter defined). The Company and the Selling Stockholder hereby confirm
each of its several agreements with you, acting as the Representatives of the
Underwriters.
- ------------------
(1) Plus an option to purchase up to 300,000 additional shares of Common
Stock to cover over-allotments.
<PAGE> 2
(a) The Company has filed with the Securities and Exchange Commission
(the "COMMISSION"), in accordance with the provisions of the Securities Act of
1933, as amended, and the published rules and regulations thereunder
(collectively, the "ACT"), a registration statement on Form S-3 (Registration
No. 333-55763) including a prospectus relating to the Stock, and such amendments
to such registration statement as may have been required prior to the date
hereof have been similarly filed with the Commission. The Company has furnished
to you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (collectively, the "PRELIMINARY PROSPECTUS") relating
to the Stock. The registration statement as amended at the time when it becomes
effective, or, if applicable, as amended at the time the most recent
post-effective amendment to such registration statement filed with the
Commission prior to the execution and delivery of this Agreement became
effective (the "EFFECTIVE DATE"), and including information (if any) contained
in a prospectus subsequently filed with the Commission pursuant to Rule 424(b)
under the Act, and deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430A under the Act is hereinafter referred to
as the "Registration Statement"; the prospectus in the form first used to
confirm sales of Stock, whether or not filed with the Commission pursuant to
Rule 424(b) under the Act is hereinafter referred to as the "PROSPECTUS." Any
reference in this Agreement to the Registration Statement, any preliminary
prospectus or the Prospectus shall include the documents incorporated therein by
reference and any reference to "amend" or "amendment" with respect to the
Registration Statement, any preliminary prospectus or the Prospectus shall be
deemed to refer to and include, unless otherwise stated, any documents filed
after such date under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "EXCHANGE
ACT") that are deemed to be incorporated by reference therein. If an abbreviated
registration statement is prepared and filed with the Commission in accordance
with Rule 462(b) under the Act (an "ABBREVIATED REGISTRATION STATEMENT"), the
term "Registration Statement" as used in this Agreement includes the Abbreviated
Registration Statement.
SECTION 2. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) Each Preliminary Prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act; when the Registration Statement becomes or became
effective and at all times subsequent thereto up to the Closing Date (as defined
herein) and the Second Closing Date (as defined herein), the Registration
Statement and the Prospectus, and any supplements or amendments thereto,
complied and will comply in all material respects with the provisions of the
Act; and the documents incorporated by reference in the Registration Statement
when they became effective or were filed with the
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<PAGE> 3
Commission, or become effective or are filed with the Commission, as the case
may be, complied or will comply, as the case may be, in all material respects to
the requirements of the Act and the Exchange Act, as applicable; and the
Registration Statement at all such times did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Prospectus at all such times did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Any documents filed or
to be filed pursuant to the Exchange Act and included or incorporated by
reference in the Registration Statement or Prospectus, do not and will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements there in not
misleading; provided, however, that the Company makes no representation or
warranty with respect to any statement contained in the Registration Statement
or the Prospectus in reliance upon and in conformity with information concerning
the Underwriters and furnished in writing by or on behalf of any Underwriter
through you to the Company expressly for use in the Registration Statement or
the Prospectus and set forth in the section of the Registration Statement and
the Prospectus entitled "UNDERWRITING".
(b) Except for borrowings and repayments under the Amended and
Restated Loan and Security Agreement (as defined herein) and the issuance of
Stock upon the exercise of stock options or pursuant to the Company's employee
stock purchase plan after March 31, 1998, as of the date of this Agreement, the
Company's capitalization is as set forth under the column entitled "MARCH 31,
1998 ACTUAL" in the section of the Registration Statement and the Prospectus
entitled "CAPITALIZATION"; and, after application of the net proceeds of the
sale of the Stock by the Company contemplated hereby, the capitalization of the
Company will be as set forth under the column entitled "MARCH 31, 1998 AS
ADJUSTED" in the section of the Registration Statement and the Prospectus
entitled "CAPITALIZATION"; and all of the issued and outstanding shares of
capital stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable and at and after the time of purchase will be
free of statutory and contractual preemptive rights.
(c) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware with full
power and authority to (i) own its properties and conduct its business as
described in the Registration Statement and the Prospectus and (ii) execute and
deliver this Agreement and to issue, sell and deliver the Stock to be issued and
sold by the Company as herein contemplated.
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<PAGE> 4
(d) All of the issued and outstanding shares of capital stock of each
of the subsidiaries of the Company (the "SUBSIDIARIES") are owned directly by
the Company; all of such shares have been duly authorized and validly issued and
are fully paid and nonassessable and, except as described in the Prospectus and
except for the pledge of all outstanding shares of capital stock of The Gradall
Company, a subsidiary of the Company, pursuant to the terms of an Amended and
Restated Loan and Security Agreement dated as of December 20, 1996 among the
Company, The Gradall Company, Heller Financial, Inc., The CIT Group Business
Credit, Inc. and Bank One Columbus, N.A. (the "AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT"), are owned free and clear of any pledge, lien, encumbrance,
security interest or other claim; there are no outstanding rights,
subscriptions, warrants, calls, preemptive rights, options or other agreements
of any kind with respect to the capital stock of any of the Subsidiaries.
(e) Each of the Subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its respective
jurisdiction of incorporation, with full corporate power and authority to own
its respective properties and to conduct its respective businesses.
(f) Each of the Company and each of the Subsidiaries is duly qualified
or licensed to do business by and is in good standing in each jurisdiction in
which it conducts business or owns property so as to require such qualification
or license and in which the failure, individually or in the aggregate, to be so
qualified or licensed could have a material adverse effect on the properties,
assets, operations, business, business prospects or condition (financial or
other) of the Company and the Subsidiaries taken as a whole; each of the Company
and each of the Subsidiaries is in compliance in all material respects with the
laws, orders, rules, regulations and directives issued or administered by each
such jurisdiction.
(g) Neither the Company nor any of the Subsidiaries is in breach of,
or in default under (nor has any event occurred which with notice, lapse of time
or both would constitute a breach of, or default under), (i) its charter or
bylaws or (ii) any obligation, agreement, covenant or condition contained in any
license, indenture, lease, mortgage, deed of trust, bank loan or credit
agreement, supply or other agreement or instrument to which the Company or any
of the Subsidiaries is a party or by which any of them may be bound or affected
that would have a material adverse effect on the properties, assets, operations,
business, business prospects or condition (financial or other) of the Company
and the Subsidiaries taken as a whole. Except for any such breaches or defaults
or any events which with notice, lapse of time or both would constitute a breach
of, or default which would not have a material adverse effect on the properties,
assets, operations, business, business prospects or condition (financial or
other) of the Company and the Subsidiaries taken as a whole, the execution,
delivery and performance of this Agreement, the issuance of the Stock
4
<PAGE> 5
and the consummation of the transactions contemplated hereby will not conflict
with, or result in any breach of or constitute a default under (nor constitute
any event which with notice, lapse of time or both would constitute a breach of,
or default under), the charter or bylaws of the Company or any of the
Subsidiaries or under any provision of any license, indenture, lease, mortgage,
deed of trust, bank loan or credit agreement, material supply agreement or other
agreement or instrument to which the Company or any of the Subsidiaries is a
party or by which any of them or their properties may be bound or affected, or
under any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or any of the Subsidiaries.
(h) The Stock to be issued and sold by the Company hereunder has been
duly authorized and, when issued and delivered to and paid for by the
Underwriters as contemplated hereby, will be duly and validly issued and fully
paid and nonassessable, free and clear of any pledge, lien, encumbrance,
security interest, preemptive right or other claim.
(i) This Agreement has been duly authorized, executed and delivered by
the Company.
(j) The capital stock of the Company, including the Stock, conforms in
all material respects to the description thereof contained in the Registration
Statement and the Prospectus; and the certificates for the Stock are in due and
proper form and the holders of the Stock after making payment therefor will not
be subject to personal liability by reason of being such holders.
(k) No approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency is required in connection with the issuance and sale
of the Stock as contemplated hereby, other than registration of the Stock under
the Act, clearance of the offering of the Stock with the National Association of
Securities Dealers, Inc. (the "NASD") the qualification of the Stock for
inclusion in the NASDAQ/NM (as defined herein), and any necessary qualification
under the securities or blue sky laws of the various jurisdictions in which the
Stock are being offered by the Underwriters.
(l) Each person who has the right, contractual or otherwise, to cause
the Company to register pursuant to the Act any securities of the Company in
consequence of the issue and sale of the Stock to the Underwriters hereunder
either included such securities in the Registration Statement or duly waived
such right and each person who has the right, contractual or otherwise, to cause
the Company to issue to it any securities of the Company in consequence of the
issue and sale of the Stock to the Underwriters hereunder has duly waived such
right.
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(m) Coopers & Lybrand L.L.P., whose reports on the consolidated
financial statements of the Company and the Subsidiaries are included or
incorporated by reference in the Registration Statement and the Prospectus, are
independent public accountants with respect to the Company as required by the
Act and the applicable published rules and regulations thereunder.
(n) All legal or governmental proceedings, contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement have been
so described or filed as required.
(o) Except as described in the Prospectus, there is no action, suit or
proceeding pending or to the best of the Company's knowledge, threatened against
the Company or any of the Subsidiaries or any of their properties, at law or in
equity, or before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency that could result in a
judgment, decree or order having a material adverse effect on the properties,
assets, operations, business, business prospects or condition (financial or
other) of the Company and the Subsidiaries taken as a whole.
(p) The audited and unaudited financial statements included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the consolidated financial condition of the Company and the
Subsidiaries as of the dates indicated and the consolidated results of
operations and cash flows of the Company and the Subsidiaries for the periods
specified; such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis during
the periods involved, except as set forth in the notes to such financial
statements and except to the extent that certain footnote disclosures regarding
the unaudited financial statements have been omitted in accordance with the
applicable rules of the Commission.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as may be
otherwise stated in the Registration Statement or the Prospectus, there has not
been: (i) any material adverse change in the properties, assets, operations,
business, business prospects or condition (financial or other), present or
prospective, of the Company and the Subsidiaries taken as a whole; (ii) any
transaction contemplated or entered into by the Company or any of the
Subsidiaries that would require an amendment to the Registration Statement or a
supplement to the Prospectus or have a material adverse effect on the
properties, assets, operations, business, business prospects or condition
(financial or other) of the Company and the Subsidiaries taken as a whole; or
(iii) any obligation, contingent or otherwise, directly or indirectly incurred
by the Company or any of the Subsidiaries that is material to the Company and
the Subsidiaries taken
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as a whole, other than contracts, purchase orders or commitments for capital
equipment and inventory and borrowings under the existing credit facility in the
ordinary course of business and consistent with past practice.
(r) The Company has obtained the agreement of the stockholders listed
on Schedule B not to sell, contract to sell, grant any option to sell, transfer
or otherwise dispose of, directly or indirectly, any shares of Common Stock, or
securities convertible into or exchangeable for Common Stock or warrants or
other rights to purchase Common Stock, for a period of 180 days from the date of
the Prospectus without the prior written consent of McDonald & Company
Securities, Inc.
(s) Neither the Company nor any of the Subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), nor any federal or
state law relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case would result in any
material adverse effect on the properties, assets, operations, business,
business prospects or condition (financial or other) of the Company and the
Subsidiaries taken as a whole.
(t) The Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("PERMITS"), including without limitation under any applicable
Environmental Laws, as are necessary to own, lease and operate its respective
properties and to conduct its business, except for those the absence of which
would not have a material adverse effect on the properties, assets, operations,
business, business prospects or condition (financial or other) of the Company
and the Subsidiaries taken as a whole; the Company and each of the Subsidiaries
has fulfilled and performed all of its material obligations with respect to such
permits and is in material compliance with the terms of such permits, and no
event has occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material impairment of
the rights of the holder of any such permit; and, except as described in the
Prospectus, such permits contain no restrictions that are materially burdensome
to the Company or any of the Subsidiaries.
(u) To the best of the Company's knowledge, there are no costs and
liabilities associated with or arising in connection with Environmental Laws
(including without limitation any capital or operating expenditure required for
clean-up, closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating activities and
any potential liabilities to third parties), singly or in the aggregate, which
would have a
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<PAGE> 8
material adverse effect on the properties, assets, operations, business,
business prospects or condition (financial or other) of the Company and the
Subsidiaries taken as a whole.
(v) Neither the Company, any of the Subsidiaries, nor, to the best of
the Company's knowledge, any employee of the Company or any of the Subsidiaries,
has made any payment of funds of the Company or any of the Subsidiaries
prohibited by law, and no funds of the Company or any of the Subsidiaries have
been set aside to be used for any payment prohibited by law.
(w) Except as disclosed in the Prospectus, the Company and the
Subsidiaries have filed all federal or state income or franchise tax returns
required to be filed and have paid all taxes shown thereon as due, and there is
no tax deficiency which has been or, to the best of the Company's knowledge,
might be asserted against the Company or any of the Subsidiaries that would have
a material adverse effect on the consolidated financial position or results of
operations of the Company and the Subsidiaries; all material tax liabilities are
adequately provided for on the books of the Company and the Subsidiaries.
(x) The Company has not incurred any liability for any finder's fees
or similar payments in connection with the transactions herein contemplated.
(y) The Company and the Subsidiaries have good title to all properties
and assets owned by them, in each case free and clear of all liens, security
interests, pledges, charges, encumbrances, mortgages and defects (except such as
are described or referred to in the Prospectus and the financial statements and
the notes thereto contained therein or such as do not interfere with the use
made and proposed to be made of such property by the Company and the
Subsidiaries).
(z) Neither the Company nor any of the Subsidiaries is an "INVESTMENT
COMPANY" within the meaning of the Investment Company Act of 1940, as amended,
or is subject to regulation under such Act.
(aa) The Common Stock has been registered under Section 12(a) of the
Securities Exchange Act of 1934, as amended, and trades over-the-counter on the
National Association of Securities Dealers Automated Quotation National Market
("NASDAQ/NM").
(bb) To the best of the Company's knowledge, no labor problem exists
with its employees or is threatened or imminent that could materially adversely
affect the Company and its subsidiaries, and the Company is not aware of any
existing, threatened or imminent labor disturbance by the employees of any of
its principal suppliers, contractors or customers that could be expected to
materially adversely
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<PAGE> 9
affect the business, prospects, properties, assets, results of operation or
condition (financial or other) of the Company and the subsidiaries.
SECTION 3. Representations and Warranties of the Selling Stockholder.
The Selling Stockholder represents and warrants to each of the Underwriters
that:
(a) The Selling Stockholder is, and at the time of delivery of the
Shares to be sold by the Selling Stockholder will be, the lawful owner of the
number of shares of Stock to be sold by the Selling Stockholder pursuant to this
Agreement and, at the time of delivery thereof, will have valid and marketable
title to such Stock, and upon delivery of and payment for such Stock the
Underwriters will acquire valid and marketable title to such Stock free and
clear of any claim, lien, encumbrance, security interest, community property
right, restriction on transfer or other defect in title, assuming each of the
Underwriters has purchased the Stock purchased by in good faith and without
notice of any adverse claim.
(b) The Selling Stockholder has and at the time of delivery of such
Stock will have full legal right, power and capacity, and any approval required
to be obtained by the Selling Stockholder by law (other than approvals required
by the Act, applicable blue sky laws or from the NASD) to sell, assign, transfer
and deliver such Stock in the manner provided in this Agreement.
(c) The Selling Stockholder has not taken and will not take, directly
or indirectly, any action designed to stabilize or manipulate, or which has
constituted or which might in the future reasonably be expected to cause or
result in stabilization or manipulation of, the price of the Stock of the
Company in order to facilitate the sale or resale of the Stock or otherwise.
(d) The Selling Stockholder is disposing of such shares of the Stock
for its own account. The Selling Stockholder is not selling such shares of the
Stock, directly or indirectly, for the benefit of the Company or the
Underwriters, and, no part of the proceeds of such sale to be received by the
Selling Stockholder will inure, either directly or indirectly, to the benefit of
the Company.
(e) This Agreement has been duly authorized, executed and delivered by
or on behalf of the Selling Stockholder and this Agreement is a valid and
binding obligation of the Selling Stockholder enforceable in accordance with its
terms.
(f) All information furnished in writing to the Company or the
Underwriters by or on behalf of the Selling Stockholder specifically for use in
the preparation of the Registration Statement and the Prospectus is and will be
when the Registration Statement became effective and at all times subsequent
thereto up to the Closing Date and the Second Closing Date, true and correct and
complete and at all
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<PAGE> 10
such times did not and will not contain any untrue statement of material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(g) The consummation of the transactions contemplated hereby and the
fulfillment of the terms hereof will not conflict with, result in a breach of,
or constitute a default under any will, trust (constructive or other),
agreement, indenture, mortgage, note, deed, rule, regulation, order, injunction,
judgment, decree or other instrument to which the Selling Stockholder is a party
or by which it is bound.
(h) All consents, approvals, authorizations and orders necessary for
the execution and delivery by the Selling Stockholder of this Agreement and for
the sale and delivery of the Stock to be sold by the Selling Stockholder
hereunder, have been obtained.
(i) The Selling Stockholder is not aware that any of the
representations and warranties of the Company, set forth in Section 2 hereof, is
untrue or inaccurate in any material respect.
SECTION 4. Sale Purchase and Delivery of Stock. (a) On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, the Company and the Selling Stockholder, severally
and not jointly, hereby agree to sell to each Underwriter, and each Underwriter,
severally and not jointly, agrees to purchase from the Company and the Selling
Stockholder the respective number of shares of the Firm Stock set forth opposite
the Underwriter's name in Schedule A hereto, at a price of $- per share. It is
agreed (i) that the number of shares of Firm Stock to be sold by the Company to
each Underwriter and purchased by such Underwriter from the Company shall be the
percentage of 500,000 shares (shares of Firm Stock sold by the Company) of the
Stock that the total number of shares of the Firm Stock to be purchased by such
Underwriter from the Company and the Selling Stockholder is of 2,000,000 (total
number of shares of Firm Stock) and (ii) that the number of shares of Firm Stock
to be sold by the Selling Stockholder to each Underwriter and purchased by such
Underwriter from the Selling Stockholder shall be the percentage of 1,500,000
shares (shares of Firm Stock sold by the Selling Stockholder) of the Stock that
the total number of shares of Firm Stock to be purchased by such Underwriter
from the Company and the Selling Stockholder is of 2,000,000 shares (total
number of shares of Firm Stock), in each instance adjusted by the
Representatives to avoid fractions and to reflect any adjustment required by
Section 12 hereof.
(b) The Company and the Selling Stockholder will deliver the Firm
Stock to you for the respective accounts of the several Underwriters at the
offices of Davis
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<PAGE> 11
Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017 at 10:00 A.M.,
New York time, or to your designee at a specified place at the same time,
against payment of the purchase price at the place of such closing, by wire
transfer in immediately available funds drawn in the case of shares of the Firm
Stock sold by the Company to the order of the Company and in the case of shares
of the Firm Stock sold by the Selling Stockholder to the order of the Selling
Stockholder on the third full business day after the effective date of the
Registration Statement (or, if the Firm Stock is priced after 4:30 p.m., New
York City time on the effective date of the Registration Statement, the fourth
full business day after the effective date of the Registration Statement), or at
such other time not later than seven full business days after the effective date
of the Registration Statement as you shall determine, such time and place being
herein referred to as the "CLOSING DATE." The certificates for the Firm Stock so
to be delivered will be in such denominations and registered in such names as
you may specify to the Company and the Selling Stockholder at or before 3:00
P.M., New York City time, on the second full business day prior to the Closing
Date. Such certificates will be made available for checking and packaging at
least 24 hours prior to the Closing Date.
(c) On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, the Company
hereby grants an option to the several Underwriters to purchase, severally and
not jointly, up to 300,000 additional shares in the aggregate of the Option
Stock at the purchase price set forth in Section 4(a) hereof, for use solely in
covering any over-allotments made by the Underwriters in the sale and
distribution of the Firm Stock. The option granted hereunder may be exercised at
any time (but not more than once) within 30 days after the date the Registration
Statement becomes effective, upon written or telegraphic notice by the
Representatives to the Company setting forth the aggregate number of shares of
the Option Stock as to which the Underwriters are exercising the option and the
time and place at which certificates will be delivered, such time (which, unless
otherwise determined by you and the Company, shall not be earlier than three nor
later than seven full business days after the exercise of said option) being
herein called the "SECOND CLOSING DATE." The number of shares of the Option
Stock to be sold by the Company to each Underwriter and purchased by such
Underwriter from the Company shall be the same percentage of the total number of
shares of the Option Stock to be purchased by the several Underwriters on the
Second Closing Date as such Underwriter purchased of the total number of shares
of the Firm Stock, as adjusted by the Representatives to avoid fractions and to
reflect any adjustment required by Section 12 hereof. The Company will deliver
certificates for the shares of the Option Stock being purchased by the several
Underwriters to you on the Second Closing Date at the place and time of such
Closing, or to your designee at a specified place at the same time, against
payment of the purchase price at the place of such Closing, by wire transfer in
immediately available funds drawn to the order of the Company. The certificates
for the Option Stock so to be delivered
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will be in such denominations and registered in such names as you may specify to
the Company at or before 3:00 P.M., New York City time, on the second full
business day prior to the Second Closing Date. Such certificates will be made
available for checking and packaging at least 24 hours prior to the Second
Closing Date. The option granted hereby may be canceled by you as the
Representatives of the several Underwriters, as to the shares of the Option
Stock for which the option is unexercised, at any time prior to the expiration
of the 30-day period, upon notice to the Company.
SECTION 5. Offering by Underwriters. Subject to the terms and
conditions hereof, the several Underwriters agree that (i) they will offer the
Stock to the public as set forth in the Prospectus as soon after the
Registration Statement becomes effective as may be practicable, but in no event
later than 5:00 p.m., New York City time, on the 15th business day subsequent to
the date that the Registration Statement becomes effective, and (ii) they will
offer and sell the Stock to the public only in those jurisdictions, and in such
amounts, where due qualification and/or registration has been effected or an
exemption from such qualification and/or registration is available under the
applicable securities or Blue Sky laws of such jurisdiction; it being
understood, however, that such agreement only covers the initial sale of the
Stock by the Underwriters and not any subsequent sale of such Stock in any
trading market which may develop after the public offering.
SECTION 6. Covenants of the Company. The Company covenants and agrees
with each of the Underwriters:
(a) to make every reasonable effort to cause the Registration
Statement to become effective and will advise you when it is effective under the
Act. The Company will not file any amendment to the Registration Statement, or
supplement to the Prospectus, of which you have not been previously advised and
furnished with a copy, or to which you have reasonably objected in writing;
(b) to make available to you in New York City, as soon as practicable
after the Registration Statement becomes effective, and thereafter from time to
time to furnish to the Underwriters, as many copies of the Prospectus (or of the
Prospectus as amended or supplemented if the Company shall have made any
amendment or supplement thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes contemplated by the
Act;
(c) to advise you promptly, confirming such advice in writing, of any
request by the Commission for amendments or supplements to the Registration
Statement or the Prospectus or for additional information with respect thereto,
or of notice of institution of proceedings for or the entry of a stop order
suspending the effectiveness of the Registration Statement and, if the
Commission should enter a
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stop order suspending the effectiveness of the Registration Statement, to use
its best efforts to obtain the lifting or removal of such order as soon as
possible;
(d) to comply, to the best of its ability, with the Act so as to
permit the continuance of sales of and dealings in the Stock under the Act for
such period as may be required by the Act; and to advise the Underwriters
promptly of the happening of any event known to the Company within the time
during which a prospectus relating to the Shares is required to be delivered
under the Act that, in the reasonable judgment of the Company, would require the
making of any change in the Prospectus then being used, so that the Prospectus,
as then supplemented, would not include an untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they are made, not misleading and,
during such time, promptly to prepare and furnish, at the Company's expense, to
the Underwriters such amendments or supplements to such Prospectus as may be
necessary to reflect any such change in such quantities as requested by the
Underwriters, and to furnish to you a copy of such proposed amendment or
supplement before filing any such amendment or supplement with the Commission;
(e) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which need not be audited
and which will satisfy the provisions of Section 11(a) of the Act including, at
the option of the Company, Rule 158) covering a period of 12 months beginning
after the effective date of the Registration Statement but ending not later than
15 months after the date of the Registration Statement, as soon as is reasonably
practicable after the termination of such 12-month period;
(f) to furnish to you three signed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto) and sufficient conformed copies of the
foregoing (other than exhibits) for distribution of a copy to each of the other
Underwriters;
(g) to furnish to you and, upon request to each of the other
Underwriters, for a period of five years from the date of this Agreement (i)
copies of all reports or other communications that the Company shall send to its
stockholders or from time to time shall publish or publicly disseminate and (ii)
copies of all annual, quarterly and current reports filed with the Commission on
Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the
Commission, and any other document filed by the Company pursuant to Section 12,
13, 14 or 15(d) of the Exchange Act;
(h) to apply the net proceeds from the sale of the Shares sold by the
Company in the manner set forth under the caption "USE OF PROCEEDS" in the
Registration Statement and the Prospectus;
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(i) to advise you promptly and if requested by you to confirm such
advice in writing, (i) when the Registration Statement has become effective and
when any post-effective amendment thereto becomes effective and (ii) when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act,
if required under the Act (which the Company agrees to file in a timely manner
under such Rule); and if, at the time that the Registration Statement becomes
effective, any information shall have been omitted therefrom in reliance upon
Rule 430A promulgated under the Act, then immediately following the execution of
this Agreement, the Company will prepare, and file or transmit for filing with
the Commission in accordance with Rule 430A and Rule 424(b) promulgated under
the Act, copies of an amended Prospectus or, if required by such Rule 430A, a
post-effective amendment (including an amended Prospectus), containing all
information so omitted.
(j) to file with the NASD all documents and notices required of
companies that have issued securities that are traded in the over-the-counter
market and quotations for which are reported by the NASDAQ/NM.
(k) to furnish such information as may be required and otherwise to
cooperate in qualifying the Stock for offering and sale under the securities or
blue sky laws of such states as you may designate and to maintain such
qualifications in effect as long as required for the distribution of the Stock,
provided that the Company shall not be required to qualify as a foreign
corporation or to consent to the service of process under the laws of any such
state (except service of process with respect to the offering and sale of the
Stock); promptly to advise you of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Stock for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and to use its best efforts to obtain the withdrawal of any order of
suspension at the earliest practicable moment;
(l) not to sell, contract to sell, grant any option to sell, transfer
or otherwise dispose of, directly or indirectly, any shares of Common Stock or
securities convertible into or exchangeable for Common Stock or warrants or
other rights to purchase Common Stock or permit the registration under the Act
of any shares of Common Stock, except for the registration of the Stock and the
sales to you pursuant to this Agreement for a period commencing on the date
hereof and continuing for 180 days after the date of the Prospectus, without the
prior written consent of McDonald & Company Securities, Inc., other than the
issuance of Common Stock upon the exercise of stock options outstanding on the
date hereof and the grant of stock options under existing stock option plans or
employee stock purchase plans;
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(m) that, after the Closing Dates, the Company and each of its
Subsidiaries will be in compliance with the financial record-keeping
requirements and internal accounting control requirements of Section 13(b)(2) of
the Exchange Act; and
(n) to refrain from investing the proceeds from the sale of the Stock
in a manner to cause the Company or any of the Subsidiaries to become an
"INVESTMENT COMPANY" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 7. Covenants of the Selling Stockholder. The Selling
Stockholder agrees, severally and not jointly, with each Underwriter that the
Selling Stockholder will not sell, contract to sell, grant any option to sell,
transfer or otherwise dispose of, directly or indirectly, any shares of Common
Stock or securities convertible into or exchangeable for Common Stock or
warrants or other rights to purchase Common Stock, except for the sales to you
pursuant to this Agreement, for a period commencing on the date hereof and
continuing for 180 days after the date of the Prospectus, without the prior
written consent of McDonald & Company Securities, Inc. In order to document the
Underwriters' compliance with the reporting and withholding provisions of the
Internal Revenue Code of 1986, as amended, with respect to the transactions
herein contemplated, the Selling Stockholder agrees to deliver to you prior to
or on the Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof).
SECTION 8. Payment of Expenses. The Company, whether or not the
transactions contemplated in this Agreement are consummated or this Agreement
otherwise becomes effective or is terminated (except when terminated under
Section 10 (b)), to pay all expenses, fees and taxes (other than (x) any
transfer taxes and (y) fees and disbursements of your counsel) in connection
with (i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus and any amendment or supplement thereto,
and the printing and furnishing of copies of each thereof to you and to dealers
(including costs of mailing and shipment), (ii) the issuance, sale and delivery
of the Shares, (iii) the word processing or printing of this Agreement, the
Master Agreement Among Underwriters and any dealer agreements, and the
reproduction or printing and furnishing of copies of each thereof to you and to
dealers (including costs of mailing and shipment), (iv) the qualification of the
Stock for offering and sale under state laws as aforesaid (including legal fees
and filing fees and other disbursements of your counsel) and the printing and
furnishing of copies of any blue sky surveys to you and to dealers, (v) any
listing of the Stock on any securities exchange or qualification of the Stock
for inclusion in the NASDAQ/NM and any registration thereof under the Exchange
Act, (vi) any filing for review of the public offering of the Shares by the NASD
and (vii) the performance of the Company's and the Selling Stockholder's other
obligations hereunder.
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SECTION 9. Conditions of the Obligation of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm Stock
on the Closing Date shall be subject to the condition that the representations
and warranties made by the Company and the Selling Stockholder herein are true
and correct as of the date hereof and as of the Closing Date, to the condition
that the written statements of Company officers and the Selling Stockholder made
pursuant to the provisions hereof are true and correct, and to the performance
by the Company and the Selling Stockholder of their respective obligations
hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 P.M., New York City time, on the date of this Agreement, or at such
later time as shall have been consented to by you, and prior to the Closing
Date, no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or shall be pending, or to the knowledge of the Company or you, shall
be contemplated by the Commission.
(b) You shall not have advised the Company and the Selling Stockholder
that the Registration Statement or Prospectus or any amendment thereof or
supplement thereto contains an untrue statement of fact which, in the reasonable
opinion of Davis Polk & Wardwell, counsel for the Underwriters, is material, or
omits to state a fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements therein not
misleading.
(c) You shall have received as of the Closing Date (or prior thereto
as indicated) the following:
(i) An opinion of Black, McCuskey, Souers & Arbaugh, counsel
for the Company, dated the Closing Date, to the effect that:
(A) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of
Delaware with full corporate power and authority (x) to own
its properties and conduct its business as described in the
Registration Statement and the Prospectus and (y) to execute
an deliver this Agreement and to issue, sell and deliver the
Stock as herein contemplated. Each of the Subsidiaries has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of its respective
jurisdiction of incorporation, with full corporate power and
authority to own or lease its properties and conduct its
business. Each of the Company and each of its Subsidiaries is
duly qualified or licensed to do business by and is in good
standing as a foreign corporation in each jurisdiction in
which it conducts business or owns property so
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<PAGE> 17
as to require such qualification or license and in which the
failure, individually or in the aggregate, to be so licensed
or qualified could have a material adverse effect on the
properties, assets, operations, business, business prospects
or condition (financial or other) of the Company and the
Subsidiaries taken as a whole.
(B) All of the issued and outstanding shares of capital
stock of each Subsidiary have been duly authorized and validly
issued, are fully paid and non-assessable and except for the
pledge of all outstanding capital stock of The Gradall
Company, a subsidiary of the Company, pursuant to the Amended
and Restated Loan and Security Agreement are owned, directly
or indirectly, by the Company free and clear of any pledge,
lien, encumbrance, security interest, preemptive right or
other claim; and there are no rights, warrants, options or
other agreements to acquire or instruments convertible into or
exchangeable for any shares of capital stock or other equity
interest of any Subsidiary, except as set forth in the
Prospectus.
(C) This Agreement has been duly authorized, executed and
delivered by the Company;
(D) (x) The Stock to be issued and sold by the Company
hereunder, when delivered to and paid for by the Underwriters,
will be duly authorized, validly issued, fully paid and
nonassessable, and will be free of any pledge, lien,
encumbrance, claim or preemptive right; and (y) the
certificates for the Stock are in due and proper form and the
holders of the Stock will not be subject to personal liability
by reason of being such holders;
(E) (x) The authorized capital stock of the Company is as
set forth under the heading "DESCRIPTION OF CAPITAL STOCK" in
the Registration Statement and the Prospectus and (y) the
outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid,
nonassessable and free of statutory and contractual preemptive
rights;
(F) The capital stock of the Company, including the
Stock, conforms in all material respects to the description
thereof contained in the Registration Statement and the
Prospectus;
(G) The Registration Statement and the Prospectus (except
as to the financial statements and schedules contained and
incorporated by reference therein as to which such counsel
need
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<PAGE> 18
express no opinion) comply as to form in all material respects
with the requirements of the Act;
(H) The Registration Statement has become effective under
the Act and, to the best of such counsel's knowledge, no stop
order proceedings with respect thereto are pending or
threatened under the Act;
(I) No approval, authorization, consent or order of or
filing with any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency is
required in connection with the issuance or sale of the Stock
as contemplated hereby other than (w) registration of the
Stock under the Act, (x) the qualification of the Stock for
inclusion in the NASDAQ/NM, (y) such consents, approvals,
authorizations, registrations or qualifications as may be
required under the state securities or blue sky laws of the
various jurisdictions in which the Stock are being offered by
the Underwriters and (z) such approval of the underwriting
arrangements as may be required under the bylaws of the NASD;
(J) The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company
of the transactions contemplated hereby do not and will not
conflict with, or result in any breach of, or constitute a
default under (nor constitute any event which with notice,
lapse of time or both would constitute a breach of or default
under), the charter or bylaws of the Company or any of the
Subsidiaries, or, to the best of such counsel's knowledge,
under any provision of any license, indenture, lease,
mortgage, deed of trust, bank loan or credit agreement or
other agreement or instrument to which the Company or any of
the Subsidiaries is a party or by which the Company or any of
the Subsidiaries or their properties are bound or affected,
or, to the best of such counsel's knowledge, under any
federal, state, local or foreign law, regulation or rule or
any decree, judgment or order applicable to the Company or any
of the Subsidiaries;
(K) To the best of such counsel's knowledge, neither the
Company nor any of the Subsidiaries is in breach of or in
default under (nor has any event occurred which with notice,
lapse of time or both would constitute a breach of or default
under) any indenture, mortgage, deed of trust, bank loan or
credit agreement or any other material agreement or instrument
to which the Company or any of the Subsidiaries is a party or
by which the Company or any of the
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<PAGE> 19
Subsidiaries or their properties are bound or affected, except
for such matters as would not, individually or in the
aggregate, have a material adverse effect on the properties,
assets, operations, business, business prospects or condition
(financial or other) of the Company and the Subsidiaries taken
as a whole; in rendering its opinion, such counsel may rely on
a certificate of the representatives of the Company in order
to identify any additional material agreement or instrument
referred to in this clause;
(L) Nothing has come to the attention of such counsel
that causes them to believe that the Company or any of the
Subsidiaries does not have such permits, licenses, franchises
and authorizations of governmental or regulatory authorities
("PERMITS"), including without limitation under any applicable
Environmental Laws, as are necessary to own, lease and operate
its respective properties and to conduct its business in the
manner described in the Prospectus, or that the Company or any
of the Subsidiaries has not fulfilled and performed all of its
material obligations with respect to such permit or is not in
material compliance with the terms of such permits, or that
any event has occurred which allows, or after notice or lapse
of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of the
holder of any such permit, subject in each case to such
qualification as may be set forth in the Prospectus, or that
such permits contain restrictions that are materially
burdensome to the Company or any of the Subsidiaries, except
as described in the Prospectus;
(M) To the best of such counsel's knowledge, all
contracts or documents of a character required to be described
in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement have been so
described or filed;
(N) Except as described in the Registration Statement and
the Prospectus, there are no actions, suits or proceedings of
which such counsel has knowledge pending or threatened against
the Company or any of the Subsidiaries, or any of their
respective properties, at law or in equity, or before or by
any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency that
individually or in the aggregate could result in a judgment,
decree or order having a material adverse effect on the
properties, assets, operations, business, business prospects
or condition (financial or other) of the Company and the
Subsidiaries taken as a whole;
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<PAGE> 20
(O) To the best of such counsel's knowledge, each person
who has the right, contractual or otherwise, to cause the
Company to register pursuant to the Act any securities of the
Company in consequence of the issue and sale of the Shares to
the Underwriters hereunder either included such securities in
the Registration Statement or duly waived such right and each
person who has the right, contractual or otherwise, to cause
the Company to issue to it any securities of the Company in
consequence of the issue and sale of the Stocks to the
Underwriters hereunder has duly waived such right;
(P) The statements in the Registration Statement and the
Prospectus under the caption "DESCRIPTION OF CAPITAL STOCK",
insofar as they are descriptions of laws, regulations and
rules, of legal and governmental proceedings or of contracts,
agreements, leases and other legal documents, or refer to
statements of law or legal conclusions, have been reviewed by
such counsel and are accurate in all material respects;
(Q) Neither the Company nor any of the Subsidiaries is an
"INVESTMENT COMPANY" or a person "CONTROLLED" by an
"INVESTMENT COMPANY" within the meaning of the Investment
Company Act of 1940, as amended; and
(R) Nothing has come to the attention of such counsel
that causes them to believe that the Registration Statement or
any amendment thereto at the time such Registration Statement
or amendment became effective contained an untrue statement of
a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus or any
supplement thereto at the date of such Prospectus or such
supplement, and at all times up to and including the time of
purchase contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion
with respect to the financial statements and schedules
included and incorporated by reference in the Registration
Statement or included in the Prospectus).
(ii) An opinion of Black, McCuskey, Souers & Arbaugh, counsel
for the Selling Stockholder, dated the Closing Date, stating that:
20
<PAGE> 21
(A) this Agreement has been duly executed and delivered
by the Selling Stockholder;
(B) the Selling Stockholder has full legal right and
power, and has obtained any authorization or approval required
by law (other than those imposed by the Act and the securities
or blue sky laws of certain jurisdictions), to sell, assign,
transfer and deliver the Stock to be sold by the Selling
Stockholder in the manner provided in this Agreement;
(C) delivery of certificates for the Stock to be sold by
the Selling Stockholder pursuant hereto will pass title
thereto to the Underwriters who have purchased such Stock in
good faith and without notice of any adverse claim, free and
clear of any adverse claim, assuming that the several
Underwriters are bona fide purchasers;
(D) to the best of such counsel's knowledge, the
consummation of the transactions contemplated hereby and the
fulfillment of the terms hereof will not constitute a breach
or violation of or default under the Selling Stockholder's
charter, bylaws, partnership agreement or other governing
documents; and
(E) no approval, authorization, consent or order of or
filing with any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency is
required in connection with the sale of the Stock to be sold
by the Selling Stockholder as contemplated hereby other than
registration of the Stock under the Act and the qualification
of the Stock for inclusion in the NASDAQ/NM (except such
counsel need express no opinion as to any necessary
qualification under the state securities or blue sky laws of
the various jurisdictions in which the Stocks are being
offered by the Underwriters).
(iii) Letters from Coopers & Lybrand L.L.P. dated,
respectively, the date of this Agreement and the Closing Date and
addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in form and substance satisfactory to you.
(iv) Such opinion or opinions of Davis Polk & Wardwell,
counsel for the Underwriters, dated the Closing Date, in form and
substance satisfactory to you.
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<PAGE> 22
(v) A certificate of the Company executed by two of its
executive officers to the effect that the representations and
warranties of the Company as set forth in this Agreement are true and
correct as of the Closing Date, and the Company has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date.
(vi) Between the time of execution of this Agreement and the
Closing Date of purchase, as the case may be, there has not been: (x)
any material and adverse change, present or prospective, in the
properties, assets, operations, business, business prospects or
condition (financial or other) of the Company and the Subsidiaries
taken as a whole, other than as described in the Registration Statement
and the Prospectus; (y) any transaction that is material to the Company
and the Subsidiaries taken as a whole contemplated or entered into by
the Company or any of the Subsidiaries, other than as described in the
Registration Statement and the Prospectus; or (z) any obligation,
contingent or otherwise, directly or indirectly, incurred by the
Company or any of the Subsidiaries that is material to the Company and
the Subsidiaries taken as a whole, other than as described in the
Registration Statement and the Prospectus, the effect of which in any
such case described in clause (x), (y) or (z) in your judgment would
make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Prospectus.
(vii) No amendment or supplement to the Registration Statement
or the Prospectus shall be filed prior to the time the Registration
Statement becomes effective to which you shall have objected in
writing.
(viii) The Registration Statement shall become effective at or
before 5:00 P.M., New York City time, on the date of this Agreement
and, if Rule 430A under the Act is used, the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) under the Act at or
before 5:00 P.M., New York City time, on the second full business day
after the date of this Agreement; provided, however, that the Company,
the Selling Stockholder and you and any group of Underwriters,
including you, who have agreed hereunder to purchase in the aggregate
at least 50% of the Firm Stock from time to time may agree in writing
or by telephone, confirmed in writing, on a later date.
(ix) A certificate of the Selling Stockholder, dated the
Closing Date, to the effect that the representations and warranties of
the Selling Stockholder in Section 3 of this Agreement are true and
correct as of the Closing Date,
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<PAGE> 23
and the Selling Stockholder has complied with all the agreements and
satisfied all the conditions on his part to be performed or satisfied
at or prior to the Closing Date.
(x) A signed letter, dated the date of this Agreement, from
each of the stockholder of the Company listed on Schedule B hereto to
the effect that such persons shall not sell, contract to sell, grant
any option to sell, transfer or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into
or exchangeable for Common Stock or warrants or other rights to
purchase Common Stock for a period of 180 days from the date of the
Prospectus without the prior written consent of McDonald & Company
Securities, Inc.
(d) Prior to the Closing Dates, the Company and the Selling
Stockholder shall have furnished to you such further certificates and documents
as to the accuracy and completeness of any statement in the Registration
Statement or the Prospectus as of the Closing Dates as you may reasonably
request.
(e) Prior to the Closing Date, as the case may be: (i) no stop order
with respect to the effectiveness of the Registration Statement shall have been
issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the
Act; (ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and (iii) the
Prospectus and all amendments or supplements thereto, or modifications thereof,
if any, shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
If any condition of the Underwriters' obligations hereunder to be
satisfied prior to the Closing Date is not so satisfied, this Agreement may be
terminated by you prior to the Closing Date, by notice in writing or by telegram
confirmed in writing to the Company and the Selling Stockholder.
The several obligations of the Underwriters to purchase Option Stock
hereunder are subject to (x) the condition that the representations and
warranties made by the Company herein are true and correct as of the Second
Closing Date and (y) the delivery to the Representatives on the Second Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Option Stock
and other matters related to the issuance of the Option Stock.
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<PAGE> 24
All such opinions, certificates, letters and documents furnished to you
pursuant to this Section 9 will be in compliance with the provisions hereof only
if they are in all material respects satisfactory to you and to Davis Polk &
Wardwell, counsel for the Underwriters, as to which both you and such counsel
shall act reasonably. The Company will furnish you with such executed and
conformed copies of such opinions, certificates, letters and documents as you
may request.
You, on behalf of the Underwriters, may waive in writing the compliance
by the Company or the Selling Stockholder of any one or more of the foregoing
conditions or extend the time for their performance.
SECTION 10. Termination of Agreement. (a) This Agreement shall become
effective at the time the Registration Statement becomes effective. At any time
before the happening of such occurrence, the Company or the Selling Stockholder
may, by notice to you, terminate this Agreement; and at any time prior to such
time, you, as the Representatives of the several Underwriters, may, by notice to
the Company and the Selling Stockholder, terminate this Agreement.
(b) This Agreement may also be terminated by you, as the
Representatives of the several Underwriters, by notice to the Company and the
Selling Stockholder, on or after the Effective Date of the Registration
Statement and prior to each respective Closing Date, if at any time during such
period any of the following has occurred: (i) other than as described in the
Registration Statement and the Prospectus, (x) any material and adverse change,
present or prospective, in the properties, assets, operations, business,
business prospects or condition (financial or other) of the Company and the
Subsidiaries taken as a whole, (y) any transaction that is material to the
Company and the Subsidiaries taken as a whole is contemplated or entered into by
the Company or any of the Subsidiaries, or (z) any obligation, contingent or
otherwise, directly or indirectly, incurred by the Company or any of the
Subsidiaries that is material to the Company and the Subsidiaries taken as a
whole; (ii) any outbreak of hostilities or escalation in existing hostilities
anywhere in the world or other national or international calamity or crisis or
change in economic or political conditions, if the effect of such outbreak,
escalation, calamity, crisis or change on the financial markets in the United
States would, in your reasonable judgment, make it impracticable to offer for
sale or to enforce contracts made by the Underwriters for the resale of the
Stock agreed to be purchased hereunder; (iii) any general suspension of trading
in securities on the New York Stock Exchange or the American Stock Exchange or
the NASDAQ/NM or any general limitation on prices for such trading or any
general restrictions on the distribution of securities, all to such a degree as
would in your reasonable judgment materially adversely affect the market for the
Stock; or (iv) a banking moratorium shall have been declared by either Federal
or New York State authorities.
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<PAGE> 25
(c) This Agreement may also be terminated as provided in Sections 9 and
12 hereof.
(d) If this Agreement shall be terminated by you because of any failure
on the part of the Company or the Selling Stockholder to comply with any of the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company or the Selling Stockholder shall be unable to perform its
respective obligations under this Agreement, the Company shall pay, in addition
to the costs and expenses referred to in Section 8, all reasonable out-of-pocket
expenses incurred by the Underwriters in contemplation of the performance by
them of their obligations hereunder, including but not limited to the reasonable
fees and disbursements of counsel for the Underwriters, the Underwriters'
reasonable printing and traveling expenses and postage, telegraph and telephone
charges relating directly to the offering contemplated by the Prospectus, and
also including reasonable advertising expenses of the Representatives incurred
after the Effective Date of the Registration Statement and so relating, it being
understood that such out-of-pocket expenses shall not include any compensation,
salaries or wages of the officers, partners or employees of any of the
Underwriters, subject to such right of contribution, if any, as the Company may
have against the Selling Stockholder in the event of the failure of the Selling
Stockholder to comply with any of the terms or to fulfill any of the conditions
of this Agreement. Only such out-of-pocket expenses as shall be accounted for by
the Underwriters shall be paid to the Underwriters by the Company.
(e) The Company and the Selling Stockholder shall not in any event be
liable to the several Underwriters for damages on account of loss of anticipated
profits arising out of the transactions contemplated by this Agreement.
SECTION 11. Indemnification. (a) The Company agrees to indemnify,
defend and hold harmless each Underwriter, the Selling Stockholder, each person
that controls any Underwriter or the Selling Stockholder within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and each Underwriter's
agents, employees, officers and directors and the agents, employees, officers
and directors of any such controlling person and the Selling Stockholder's
agents, employees, officers and directors and the agents, employees, officers
and directors of any such controlling person (collectively, the
"UNDERWRITER/SELLING STOCKHOLDER INDEMNIFIED PARTIES") from and against any and
all losses, claims, damages, judgments, liabilities and expenses (including the
reasonable fees and expenses of counsel and other expenses in connection with
investigating, defending or settling any such action or claim) which, jointly or
severally, any Underwriter/Selling Stockholder Indemnified Party may incur as
they are incurred (and regardless of whether such Underwriter/Selling
Stockholder Indemnified Party is a party to the litigation, if any) arising out
of or based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus
25
<PAGE> 26
or any Preliminary Prospectus, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, judgments, liabilities or expenses arise out of,
or are based upon, any such untrue statement or omission or alleged untrue
statement or omission based upon and in conformity with information with respect
to any Underwriter or the Selling Stockholder furnished in writing by any
Underwriter or the Selling Stockholder through you to the Company expressly for
use therein with reference to such Underwriter or the Selling Stockholder;
provided, however, that as to any Preliminary Prospectus, the foregoing
indemnity shall not inure to the benefit of any Underwriter/Selling Stockholder
Indemnified Party with respect to any loss, claim, damage, judgment, liability
or expense arising from the sale of Stock to any person by such
Underwriter/Selling Stockholder Indemnified Party if such Underwriter or the
Selling Stockholder failed to send or give a copy of the Prospectus to such
person within the time required by the Act and the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in such Preliminary Prospectus was corrected in the Prospectus.
(b) The Selling Stockholder severally and not jointly agrees to
indemnify, defend and hold harmless the Underwriter/Selling Stockholder
Indemnified Parties to the same extent as the foregoing indemnity from the
Company to the Underwriter/Selling Stockholder Indemnified Parties, but only
with respect to information concerning the Selling Stockholder furnished in
writing by or on behalf of the Selling Stockholder expressly for use with
respect to the Selling Stockholder in the Registration Statement, any
Preliminary Prospectus or the Prospectus. The Selling Stockholder shall not be
liable under this Section 11 in an amount exceeding the net proceeds to the
Selling Stockholder from the sale of Shares sold by the Selling Stockholder
hereunder. This indemnity agreement will be in addition to any liability the
Selling Stockholder otherwise may have.
(c) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
Underwriter/Selling Stockholder Indemnified Party, with respect to which
indemnity may be sought against the Company or the Selling Stockholder pursuant
to this Section 11, such Underwriter/Selling Stockholder Indemnified Party shall
promptly notify the Company and the Selling Stockholder in writing, and the
Company (in the case of an indemnification obligation under clause (a) hereof)
or the Selling Stockholder (in the case of an indemnification obligation under
clause (b) hereof) shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to the Underwriter/Selling Stockholder
Indemnified Party and payment of all fees and expenses; provided that the
omission so to notify the Company and the Selling Stockholder shall not relieve
them from any liability that they may have to any Underwriter/Selling
Stockholder Indemnified Party, except to the extent that they
26
<PAGE> 27
have been prejudiced in any material respect by such failure. An
Underwriter/Selling Stockholder Indemnified Party shall have the right to employ
separate counsel in any such action or proceeding and to assume the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Underwriter/Selling Stockholder Indemnified Party unless (i) the employment
of such counsel has been authorized in writing by the indemnifying party, (ii)
the indemnifying party has failed promptly to assume the defense and employ
counsel reasonably satisfactory to the Underwriter/Selling Stockholder
Indemnified Party after notice of such action or proceeding has been given to
the indemnifying party or (iii) the named parties to any such action or
proceeding (including any impleaded parties) include both the
Underwriter/Selling Stockholder Indemnified Party and the indemnifying party and
such Underwriter/Selling Stockholder Indemnified Party shall have reasonably
concluded (upon advice of counsel) that there may be one or more legal defenses
available to it that are different from or additional to those available to the
indemnifying party such that a conflict of interest exists or would exist in the
absence of separate counsel representing the indemnifying party and the
Underwriter/Selling Stockholder Indemnified Party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such Underwriter/Selling Stockholder Indemnified Party), in any of
which events such reasonable fees and expenses shall be borne by the
indemnifying party and reimbursed as they are incurred. It is understood,
however, that the indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than two separate firms of attorneys
(in addition to any local counsel) at any time for all such Underwriter/Selling
Stockholder Indemnified Parties, one of which firms shall be designated in
writing by McDonald & Company Securities, Inc. and one of which firms shall be
designated by the Company, and that all such fees and expenses shall be
reimbursed as they are incurred. No indemnifying party shall be liable for any
settlement of any such action effected without the written consent of such
indemnifying party (which consent shall not be unreasonably withheld or
delayed), but if settled with the written consent of such indemnifying party, or
if there is a final judgment with respect thereto, such indemnifying party
agrees to indemnify and hold harmless each Underwriter/Selling Stockholder
Indemnified Party from and against any loss or liability by reason of such
settlement or judgment, except as otherwise provided herein.
(d) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration Statement,
any person that controls the Company within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, the Selling Stockholder and each person that
controls the Selling Stockholder within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act (collectively, the "COMPANY/SELLING STOCKHOLDER
INDEMNIFIED
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<PAGE> 28
PARTIES") to the same extent as the foregoing indemnity from the Company to the
Underwriter/Selling Stockholder Indemnified Parties, but only with respect to
information concerning such Underwriter furnished in writing by or on behalf of
such Underwriter through you to the Company expressly for use with respect to
such Underwriter in the Registration Statement, any Preliminary Prospectus or
the Prospectus. In case any action shall be brought against any Company/Selling
Stockholder Indemnified Party based on the Registration Statement, any
Preliminary Prospectus or the Prospectus and in respect of which indemnity may
be sought against any Underwriter pursuant to this Section 11(d), such
Underwriter shall have the rights and duties given to the Company and the
Selling Stockholder by Section 11(c) (except that if the Company and the Selling
Stockholder shall have assumed the defense thereof such Underwriter shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof, provided that the fees and expenses of such separate
counsel shall be at the expense of such Underwriter), and the Company/Selling
Stockholder Indemnified Parties shall have the rights and duties given to the
Underwriter/Selling Stockholder Indemnified Parties by Section 11(c).
(e) If the indemnification provided for in this Section 11 is
unavailable to or insufficient to hold harmless any Underwriter/Selling
Stockholder Indemnified Party or any Company/Selling Stockholder Indemnified
Party, then the party required to indemnify such indemnified party under this
Section 11, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages, judgments, liabilities and expenses (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company, such
Selling Stockholder and the Underwriters from the offering of the Shares, or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, such Selling Stockholder and the Underwriters in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, such Selling Stockholder and the
Underwriters shall be deemed to be in the same proportion as the total proceeds
from the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and each of the Selling
Stockholders, respectively, bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault of the Company and the
Selling Stockholder and the Underwriters shall be determined by reference to,
among other things, whether the untrue statement or alleged untrue statement of
a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, by the Selling Stockholder or by
the Underwriters, and the parties' relative intent, knowledge,
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<PAGE> 29
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages, judgments, liabilities and expenses referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any claim or action.
The Company, the Selling Stockholder and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 11(e)
were determined by pro rata allocation or by any other method of allocation
(even if the Underwriters were treated as one entity for such purpose) that does
not take account of the equitable considerations referred to in this Section
11(e). Notwithstanding the provisions of this Section 11(e), no
Underwriter/Selling Stockholder Indemnified Party shall be required to
contribute any amount in excess of the amount by which the total price at which
the Stock underwritten or sold by such Underwriter/Selling Stockholder
Indemnified Party and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter/Selling Stockholder
Indemnified Party otherwise has been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 11 are several in proportion to their respective
underwriting commitments and are not joint.
The statements under the caption "UNDERWRITING" in the Prospectus (to
the extent such statements relate to an Underwriter) constitute the only
information furnished to the Company in writing by such Underwriter expressly
for use in the Registration Statement, any Preliminary Prospectus or the
Prospectus.
(f) The indemnity and contribution agreements contained in this Section
11 and the representations, warranties and covenants of the Company and the
Selling Stockholder contained in this Agreement shall remain in full force and
effect, regardless of any investigation made by or on behalf of any
Underwriter/Selling Stockholder Indemnified Party or by or on behalf of any
Company/Selling Stockholder Indemnified Party or any Selling Stockholder, and
shall survive any termination of this Agreement or the issuance and delivery of
the Stock. Subject to the provisions of Section 11(c) and Section 11(d), the
Company, the Selling Stockholder and each Underwriter agree promptly to notify
the other of the commencement of any litigation or proceeding against it in
connection with the issuance and sale of the Shares or in connection with the
Registration Statement or the Prospectus.
29
<PAGE> 30
SECTION 12. Default of the Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase the Stock hereunder and
arrangements satisfactory to you, the Company and the Selling Stockholder,
evidenced by a writing or writings signed by you, the Company and the Selling
Stockholder, for the purchase of such Stock by other persons are not made within
36 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter, the Company and the Selling
Stockholder (except that the Company shall be liable for the expenses to be paid
by it pursuant to the provisions of Section 8), provided, however, that if the
number of shares of the Stock which all such defaulting Underwriters have agreed
but failed to purchase shall not exceed 10% of the number of shares of the Firm
Stock or the Option Stock, as the case may be, agreed to be purchased pursuant
to this Agreement (other than the shares agreed to be taken up hereunder which
the defaulting Underwriters failed to purchase) by all non-defaulting
Underwriters, the non-defaulting Underwriters shall be obligated proportionately
to take up and pay for the shares of the Firm Stock or the Option Stock which
such defaulting Underwriters failed to purchase.
If any such default occurs, either you or the Company or the Selling
Stockholder shall have the right to postpone the Closing Date for not more than
seven business days in order that the necessary changes in the Registration
Statement, Prospectus and any other documents, as well as any other arrangement,
may be effected. As used in this Agreement, the term "Underwriters" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from its liability to the other several
Underwriters, the Company and the Selling Stockholder for its default hereunder.
SECTION 13. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations and warranties of the
Company, the Selling Stockholder and the several Underwriters, set forth in or
made pursuant to this Agreement, will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter, the
Company or any of its officers or directors or any controlling person or the
Selling Stockholder, and will survive delivery of and payment for the Stock and,
in the case of the agreements contained in Sections 8, 10 and 11 hereof, will
survive any termination of this Agreement.
SECTION 14. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to you at McDonald & Company Securities, Inc., McDonald Investment
Center, 800 Superior Avenue, Cleveland, Ohio 44114, Attention: Daniel F. Austin,
with a copy to Christopher M. Gorman, or if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to the Company at 406 Mill Avenue, S.W.,
New Philadelphia, OH 44663, with a copy to Bruce A. Jonker, or if sent to the
Selling Stockholder, will be mailed, delivered or telegraphed and confirmed to
the Selling
30
<PAGE> 31
Stockholder at Morgan Lewis Githens & Ahn, Two Greenwich Plaza, Greenwich, CT
06830.
SECTION 15. Successors, Governing Law. This Agreement will inure solely
to the benefit of and be binding upon the parties hereto and the officers and
directors and controlling persons referred to in Section 11 hereof and their
respective successors, assigns, heirs, executors and administrators, and no
other persons will have any right or obligation hereunder. This Agreement will
be governed by and construed in accordance with the laws of the State of Ohio,
without giving effect to the principles of conflicts of laws thereof.
SECTION 16. Execution in Counterparts. This Agreement may be executed
by any one or more of the parties hereto in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
SECTION 17. Authority of the Representatives. You represent and warrant
that you have been authorized by the several Underwriters to enter into this
Agreement on their behalf and to act for them in the manner hereinbefore
provided.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed copies hereof, whereupon it
will become a binding agreement by and among the Company, the Selling
Stockholder and the several Underwriters in accordance with its terms.
Very truly yours,
GRADALL INDUSTRIES, INC.
By:
--------------------------------
Name:
Title:
MLGA FUND II, L.P., as Selling Stockholder
By:
--------------------------------
Name:
Title:
31
<PAGE> 32
The foregoing Agreement is hereby confirmed
and accepted by us in Cleveland, Ohio, acting on
our own behalf and as the Representatives of the
several Underwriters named on Schedule A annexed
hereto, as of the date first above written.
McDONALD & COMPANY SECURITIES, INC.
SBC WARBURG DILLON READ INC.
As Representatives of the Several Underwriters
By: McDONALD & COMPANY SECURITIES, INC.
By:
--------------------------------
Managing Director
32
<PAGE> 33
SCHEDULE A
UNDERWRITERS
Number of Shares to
Underwriter be Purchased
----------- ------------
McDonald & Company Securities, Inc....................
SBC Warburg Dillon Read Inc...........................
Total...............................
A-1
<PAGE> 34
SCHEDULE B
STOCKHOLDERS ENTERING INTO LOCK-UP AGREEMENTS
Barry L. Phillips
David S. Williams
James C. Cahill
Bruce A. Jonker
Joseph H. Keller
Ky Kuehling
Michael Haberman
Matthew Stear
John Arnold
Phillip Keller
The Nippon Credit Bank, Ltd.
Sangwoo Ahn
John A. Morgan
Perry J. Lewis
William C. Ughetta, Jr.
Ira Starr
Jack Rutherford
David Shelby
B-1
<PAGE> 1
EXHIBIT 23.01
[COOPERS & LYBRAND L.L.P.]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion and incorporation by reference in this
Registration Statement on Form S-3 of our report dated February 23, 1998, on our
audits of the consolidated financial statements of Gradall Industries, Inc. and
Subsidiaries. We also consent to the incorporation by reference in this
Registration Statement of our report dated February 23, 1998, on our audits of
the financial statement schedule of Gradall Industries Inc. for the years ended
December 31, 1997, 1996 and 1995, which report is incorporated by reference in
the Annual Report on Form 10-K. We also consent to the reference to our firm
under the captions "Experts" and "Selected Consolidated Financial Data."
/s/ COOPERS & LYBRAND L.L.P.
Cleveland, Ohio
June 18, 1998
