705,969 Shares
TEREX CORPORATION
Common Stock
(par value $.01)
UNDERWRITING AGREEMENT
December 4, 1997
Credit Suisse First Boston Corporation
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Legris Industries, S.A. and Potain, S.A.
("Selling Stockholders") severally propose to sell an aggregate
of 705,969 outstanding shares of Common Stock, par value $.01 per
share ("Securities") of Terex Corporation, a Delaware corporation
("Company") (such 705,969 shares of Securities being hereinafter
referred to as the "Offered Securities"). The Company and the
Selling Stockholders hereby agree with Credit Suisse First Boston
Corporation ("Underwriter") as follows:
2. Representations and Warranties of the Company and the
Selling Stockholders.
(a) The Company represents and warrants to, and agrees
with, the Underwriter and the several Selling Stockholders that:
(i) A registration statement (No. 333-39619),
including a prospectus, relating to the Offered Securities has
been filed with the Securities and Exchange Commission ("Commis-
sion") and either (A) has been declared effective under the
Securities Act of 1933 ("Act") and is not proposed to be amended
or (B) is proposed to be amended by amendment or post-effective
amendment. If such registration statement (the "initial registra-
tion statement") has been declared effective, either (A) an
additional registration statement (the "additional registration
statement") relating to the Offered Securities may have been
filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)")
under the Act and, if so filed, has become effective upon filing
pursuant to such Rule and the Offered Securities all have been
duly registered under the Act pursuant to the initial registra-
tion statement and, if applicable, the additional registration
statement, or (B) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b)
and will become effective upon filing pursuant to such Rule and
upon such filing the Offered Securities will all have been duly
registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the
Company does not propose to amend the initial registration
statement or if an additional registration statement has been
filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement
has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any) to
each such registration statement has been declared effective by
the Commission or has become effective upon filing pursuant to
Rule 462(c) ("Rule 462(c)") under the Act or, in the case of the
additional registration statement, Rule 462(b). For purposes of
this Agreement, "Effective Time" with respect to the initial
registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration state-
ment, means (A) if the Company has advised the Underwriter that
it does not propose to amend such registration statement, the
date and time as of which such registration statement, or the
most recent post-effective amendment thereto (if any) filed prior
to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the
Underwriter that it proposes to file an amendment or post-effec-
tive amendment to such registration statement, the date and time
as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is
declared effective by the Commission. If an additional registra-
tion statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the
Underwriter that it proposes to file one, "Effective Time" with
respect to such additional registration statement means the date
and time as of which such registration statement is filed and
becomes effective pursuant to Rule 462(b). "Effective Date" with
respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective
Time thereof. The initial registration statement, as amended at
its Effective Time, including all material incorporated by
reference therein, including all information contained in the
additional registration statement (if any) and deemed to be a
part of the initial registration statement as of the Effective
Time of the additional registration statement pursuant to the
General Instructions of the Form on which it is filed and includ-
ing all information (if any) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to Rule
430A(b) ("Rule 430A(b)") under the Act, is hereinafter referred
to as the "Initial Registration Statement". The additional
registration statement, as amended at its Effective Time, includ-
ing the contents of the initial registration statement incorpo-
rated by reference therein and including all information (if any)
deemed to be a part of the additional registration statement as
of its Effective Time pursuant to Rule 430A(b), is hereinafter
referred to as the "Additional Registration Statement". The
Initial Registration Statement and the Additional Registration
Statement are hereinafter referred to collectively as the "Regis-
tration Statements" and individually as a "Registration State-
ment". The form of prospectus (including any amendment or supple-
ment thereto) relating to the Offered Securities, as first filed
with the Commission pursuant to and in accordance with Rule
424(b) ("Rule 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, including all
material incorporated by reference in such prospectus, is herein-
after referred to as the "Prospectus". No document has been or
will be prepared or distributed in reliance on Rule 434 under the
Act.
(ii) If the Effective Time of the Initial Regis-
tration Statement is prior to the execution and delivery of this
Agreement: (A) on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement conformed in all
material respects to the requirements of the Act and the pub-
lished rules and regulations of the Commission ("Rules and
Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, (B) on the Effective Date of the Additional Registra-
tion Statement (if any), each Registration Statement conformed or
will conform, in all material respects to the requirements of the
Act and the Rules and Regulations and did not include, or will
not include, any untrue statement of a material fact and did not
omit, or will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and (C) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the Addi-
tional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement
each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which
the Prospectus is included, each Registration Statement and the
Prospectus will conform, in all material respects to the require-
ments of the Act and the Rules and Regulations, and neither of
such documents includes, or will include, any untrue statement of
a material fact or omits, or will omit, to state any material
fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading. If
the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement: on
the Effective Date of the Initial Registration Statement, the
Initial Registration Statement and the Prospectus will conform in
all material respects to the requirements of the Act and the
Rules and Regulations, neither of such documents will include any
untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in light
of the circumstances under which they were made) not misleading,
and no Additional Registration Statement has been or will be
filed. The two preceding sentences do not apply to statements in
or omissions from a Registration Statement or the Prospectus
based upon written information furnished to the Company by any
Underwriter through the Underwriter specifically for use therein,
it being understood and agreed that the only such information is
that described as such in Section 7(d) hereof.
(iii) The Company has been duly incorporated and
is an existing corporation in good standing under the laws of the
State of Delaware, with the corporate power and authority to own
its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to
be so qualified and in good standing could not reasonably be
expected, individually or in the aggregate, to have a material
adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect").
(iv) Each subsidiary of the Company that (i)
generated 5% or more of the revenues, (ii) generated 5% or more
of the operating income, or (iii) held 5% or more of the assets,
in each case, of the Company and its subsidiaries on a ▇▇▇▇▇▇▇-
dated basis as reflected in the financial statements included in
the prospectus dated July 22, 1997 included in the Company's
Registration Statement on Form S-3 (333-27749) under the heading
"Pro Forma Financial Information" (each, a "Significant Subsid-
iary"), has been duly incorporated and is an existing corporation
in good standing under the laws of the jurisdiction of its
incorporation, with the corporate power and authority to own its
properties and conduct its business as described in the Prospec-
tus; and each Significant Subsidiary of the Company is duly
qualified to do business as a foreign corporation in good stand-
ing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualifica-
tion, except where the failure to be so qualified and in good
standing could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect; all of the issued
and outstanding capital stock of each Significant Subsidiary of
the Company has been duly authorized and validly issued and is
fully paid and nonassessable; and, except as expressly disclosed
or incorporated by reference in the Prospectus and except for
pledges in favor of United States Trust Company of New York, as
collateral agent for the holders of the Company's 13.25% Senior
Secured Notes due 2002, the capital stock of each Significant
Subsidiary owned by the Company, directly or through subsidiar-
ies, is owned free from liens, encumbrances and defects.
(v) The Offered Securities have been duly autho-
rized, and as of the Closing Date, will have been validly issued,
and all other outstanding shares of capital stock of the Company
have been duly authorized and validly issued, and are fully paid
and nonassessable and conform in all material respects to the
description thereof contained in the Prospectus; and the stock-
holders of the Company have no preemptive rights with respect to
the Securities.
(vi) Except as disclosed in the Prospectus, there
are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim
against the Company or any Underwriter for a brokerage commis-
sion, finder's fee or other like payment in connection with this
offering.
(vii) Except for (a) that certain Registration
Rights Agreement, dated as of December 9, 1994, by and among
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and the
Company, (b) that certain Warrant Registration Rights Agreement,
dated as of December 20, 1993, by and among the Company and the
parties signatory thereto, (c) that certain Registration Rights
Agreement, dated May 9, 1995, between the Company, ▇▇▇▇▇▇▇▇▇ &
Company, Inc., and ▇▇▇▇▇▇, Read & Co. Inc., and (d) that certain
Agreement, dated as of November 2, 1995, between the Company and
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, there are no contracts, agreements or under-
standings between the Company and any person granting such person
the right to require the Company to file a registration statement
under the Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to
a Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Act.
(viii) The Company has filed an application to
list the Offered Securities on the New York Stock Exchange and
has received notification that the listing has been approved
subject to notice of issuance.
(ix) No consent, approval, authorization, or
order of, or filing with, any governmental agency or body or any
court is required to be obtained or made by the Company for the
performance by the Company of its obligations under this Agree-
ment or the Merger Documents (as defined below), except such as
have been obtained and made under the Act and such as may be
required under state securities laws.
(x) The execution and delivery by the Company and
Terex Cranes, Inc. ("Cranes") (to the extent a party thereto) of,
and the performance by the Company of its obligations under, (i)
this Agreement, (ii) the Agreement and Plan of Merger, dated as
of October 31, 1997, by and between the Company and Cranes, and
(iii) that certain Agreement, dated as of October 31, 1997, by
and among the Company, Cranes and the Selling Stockholders (the
"Legris Agreement") ((ii) and (iii) are collectively referred to
herein as the "Merger Documents") will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any Significant Subsid-
iary of the Company or any of their properties, or any agreement
or instrument to which the Company or any Significant Subsidiary
is a party or by which the Company or any Significant Subsidiary
is bound or to which any of the properties of the Company or any
Significant Subsidiary is subject, or the charter or by-laws of
the Company or any Significant Subsidiary, except in each such
case, (i) that any rights to indemnity and contribution herein
may be limited by federal and state securities laws and public
policy considerations and (ii) for such breaches, violations and
defaults as could not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect.
(xi) This Agreement has been duly authorized,
executed and delivered by the Company. Each of the Merger
Documents has been duly authorized, executed and delivered by the
Company and Cranes and constitutes a valid and legally binding
obligation of the Company and Cranes, respectively, in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(xii) Except as disclosed in the Prospectus, the
Company and its Significant Subsidiaries have good title to all
real properties and all other properties and assets owned by them
that are material to the Company and its subsidiaries taken as a
whole, in each case free from liens and encumbrances that would
materially affect the value thereof or materially interfere with
the use made or to be made thereof by them; and except as dis-
closed in the Prospectus, the Company and its Significant Subsid-
iaries hold any leased real or personal property that is material
to the Company and its subsidiaries taken as a whole under valid
and enforceable leases with no exceptions that would materially
interfere with the use made or to be made thereof by them.
(xiii) The Company and its subsidiaries possess
all certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business
now operated by them and have not received any notice of proceed-
ings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to
the Company or any of its subsidiaries, could reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect.
(xiv) Except as disclosed in the Prospectus, no
labor strike, slowdown, stoppage or dispute (except for routine
disciplinary and grievance matters) with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of
the Company, is imminent, that could reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect.
(xv) The Company and its subsidiaries own,
possess, have the right to use, or can acquire on reasonable
terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential informa-
tion and other intellectual property (collectively, "intellectual
property rights") used in the conduct the business now operated
by them, except for such failures to so own, possess or have the
right to use or acquire such intellectual property rights as
which could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect, and have not
received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus,
neither the Company nor any of its subsidiaries (i) is in ▇▇▇▇▇-
tion of any statute, any rule, regulation, decision or order of
any governmental agency or body or any court, domestic or for-
eign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substanc-
es (collectively, "environmental laws"), (ii) owns or operates
any real property that to the knowledge of the Company is contam-
inated with any substance that is subject to any environmental
laws, (iii) is to the knowledge of the Company liable for any
off-site disposal or contamination pursuant to any environmental
laws, or (iv) is to the knowledge of the Company subject to any
claim relating to any environmental laws, in each case, which
violation, contamination, liability or claim would individually
or in the aggregate have a Material Adverse Effect; and the
Company is not aware of any pending investigation which might
lead to such a claim.
(xvii) Except as disclosed in the Prospectus,
there are no pending actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any of their
respective properties that have a reasonable likelihood of being
adversely determined and, if determined adversely to the Company
or any of its subsidiaries, would individually or in the aggre-
gate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its
obligations under this Agreement or the Merger Documents, or
which are otherwise material in the context of the sale of the
Offered Securities; and no such actions, suits or proceedings are
threatened in writing or, to the Company's knowledge, contem-
plated.
(xviii) The financial statements included or
incorporated by reference in each Registration Statement and the
Prospectus present fairly in all material respects the financial
position, as applicable, (a) of the Company and its consolidated
subsidiaries, (b) of PPM Cranes, Inc. and its consolidated
subsidiaries and (c) of the Simon Access Companies (as defined in
the Prospectus), in each case as of the dates shown and their
results of operations and cash flows for the periods shown
(subject in the case of interim financial statements to normal
year-end adjustments), and such financial statements have been
prepared in conformity with generally accepted accounting princi-
ples in the United States applied on a consistent basis and the
schedules included in each Registration Statement present fairly
the information required to be stated therein. The assumptions
used in preparing the pro forma financial statements incorporated
by reference in each Registration Statement and the Prospectus
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein
reflect the proper application of those adjustments to the
corresponding historical financial statement amounts.
(xix) Except as disclosed in the Prospectus,
since the date of the latest financial statements included in the
Prospectus, there has been no material adverse change, nor any
development or event that could reasonably be expected to result
in a material adverse change, in the condition (financial or
other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(xx) The Company is not and, after giving effect
to the offering and sale of the Offered Securities, will not be
an "investment company" as defined in the Investment Company Act
of 1940.
(b) Each Selling Stockholder severally represents and
warrants to, and agrees with, the Underwriter that:
(i) Such Selling Stockholder on the Closing Date
will have valid and unencumbered title to the Offered Securities
to be delivered by or on behalf of such Selling Stockholder on
such Closing Date and full right, power and authority to enter
into this Agreement and the Legris Agreement and to sell, assign,
transfer and deliver the Offered Securities to be delivered by or
on behalf of such Selling Stockholder on such Closing Date
hereunder; and upon the delivery of and payment for the Offered
Securities on the Closing Date hereunder pursuant to the terms of
this Agreement the Underwriter will acquire valid and unencum-
bered title to the Offered Securities to be delivered by such
Selling Stockholder on such Closing Date.
(ii) Except as disclosed in the Prospectus, there
are no contracts, agreements or understandings between such
Selling Stockholder and any person that would give rise to a
valid claim against the Selling Stockholders or the Underwriter
for a brokerage commission, finder's fee or other like payment in
connection with this offering.
(iii) The power of attorney signed by the Selling
Stockholders (the "Power of Attorney") appointing ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
as their attorney-in-fact to the extent set forth therein with
regard to the transactions contemplated hereby and by the Regis-
tration Statements has been duly authorized, executed and deliv-
ered by or on behalf of such Selling Stockholder and is a valid
and binding instrument of such Selling Stockholder enforceable in
accordance with its terms, and, pursuant to such power of attor-
ney, such Selling Stockholder has authorized ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ to
execute and deliver on its behalf this Agreement and any other
documents necessary or desirable in connection with transactions
contemplated hereby and to deliver the Securities to be sold by
such Selling Stockholder pursuant to this Agreement.
(iv) The execution and delivery by such Selling
Stockholder of, and performance by such Selling Stockholder of
its obligations under, this Agreement, the Legris Agreement and
the execution and delivery of the Power of Attorney by such
Selling Stockholders, and the consummation of the transactions
herein and therein contemplated, will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign,
having jurisdiction over such Selling Stockholder or any of its
properties, or any agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is
bound or to which any of the properties of such Selling Stock-
holder is subject, or, if applicable, the charter or by-laws (or
comparable organizational documents) of such Selling Stockholder,
except, in each such case, (i) as may be limited by federal and
state securities law and public policy considerations and (ii)
for such breaches, violations and defaults as could not reason-
ably be expected, individually or in the aggregate, to have a
material adverse effect on the performance of the transactions
contemplated by this Agreement, the Legris Agreement and the
Power of Attorney by such Selling Stockholder .
(v) This Agreement has been duly authorized,
executed and delivered by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on behalf of such
Selling Stockholder pursuant to the Power of Attorney. The
Legris Agreement has been duly authorized, executed and delivered
by such Selling Stockholder and constitutes a valid and legally
binding obligation of such Selling Stockholder in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent trans-
fer, reorganization, moratorium, and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
3. Purchase, Sale and Delivery of Offered Securities. On
the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein
set forth, the Selling Stockholders agree, jointly and severally,
to sell to the Underwriter, and the Underwriter agrees to pur-
chase from the Selling Stockholders, the Offered Securities for
an aggregate purchase price of 80 million French Francs.
The Selling Stockholders will deliver 705,969 Offered
Securities to the Underwriter for the account of the Underwriter,
against payment of the purchase price by official bank check or
checks or by wire transfer in such amounts and to such account(s)
at financial institution(s) in France designated in advance in
writing by the Selling Stockholders, at the office of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, at 9:00 A.M., New York time, on
December 10, 1997, or at such other place in the City of New York
or at such other time not later than seven full business days
thereafter as the Underwriter and the Selling Stockholders
determine, such time being herein referred to as the "Closing
Date". The certificates for the Offered Securities to be so
delivered will be in definitive form, in such denominations and
registered in such names as the Underwriter requests and will be
made available for checking and packaging at the above office at
least 24 hours prior to the Closing Date.
4. Offering by Underwriter. It is understood that the
Underwriter proposes to offer the Offered Securities for sale to
the public as set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling
Stockholders. The Company agrees with the Underwriter and the
Selling Stockholders that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agree-
ment, the Company will file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) or (2) (as
consented by the Underwriter) (or if applicable and if consented
to by the Underwriter, subparagraph (4) or (5)) of Rule 424(b)
not later than the first business day following the execution and
delivery of this Agreement. The Company will advise the Under-
writer promptly of any such filing pursuant to Rule 424(b). If
the Effective Time of the Initial Registration Statement is prior
to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the
Offered Securities under the Act but the Effective Time thereof
has not occurred as of such execution and delivery, the Company
will file the additional registration statement or, if filed,
will file a post-effective amendment thereto with the Commission
pursuant to and in accordance with Rule 462(b) on or prior to
10:00 P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed and
distributed to the Underwriter, or will make such filing at such
later date as shall have been consented to by the Underwriter.
(b) The Company will advise the Underwriter promptly
of any proposal to amend or supplement the initial or any addi-
tional registration statement as filed or the related prospectus
or the Initial Registration Statement, the Additional Registra-
tion Statement (if any) or the Prospectus and will not effect
such amendment or supplementation without the Underwriter's
consent, which consent shall not be unreasonably withheld or
delayed; and the Company will also advise the Underwriter prompt-
ly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of
this Agreement) and of any amendment or supplementation of a
Registration Statement or the Prospectus and of the institution
by the Commission of any stop order proceedings in respect of a
Registration Statement and will use its reasonable best efforts
to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by the Underwriter or any dealer, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary to make the state-
ments therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will
promptly notify the Underwriter of such event and will promptly
prepare and file with the Commission, at its own expense, an
amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance.
Neither the Underwriter's consent to, nor the Underwriter's
delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make
generally available to its securityholders an earnings statement
(which need not be audited) covering a period of at least 12
months beginning after the Effective Date of the Initial Regis-
tration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provi-
sions of Section 11(a) of the Act. For the purpose of the preced-
ing sentence, "Availability Date" means the 45th day after the
end of the fourth fiscal quarter following the fiscal quarter
that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such
fourth fiscal quarter.
(e) The Company will furnish to the Underwriter copies
of each Registration Statement (two of which will be signed and
will include all exhibits), each related preliminary prospectus,
and, so long as a prospectus relating to the Offered Securities
is required to be delivered under the Act in connection with
sales by the Underwriter or any dealer, the Prospectus and all
amendments and supplements to such documents, in each case in
such quantities as the Underwriter reasonably requests. The
Prospectus shall be so furnished on or prior to 3:00 P.M., New
York time, on the business day following the later of the execu-
tion and delivery of this Agreement or the Effective Time of the
Initial Registration Statement. All other such documents shall
be so furnished as soon as available. The Company will pay the
expenses of printing and distributing to the Underwriter all such
documents.
(f) The Company will arrange for the qualification of
the Offered Securities for sale under the laws of such jurisdic-
tions as the Underwriter reasonably designates and will continue
such qualifications in effect so long as required for the distri-
bution.
(g) (1) The Company agrees with the Underwriter
that the Company will pay all expenses incident to the perfor-
▇▇▇▇▇ of the obligations of the Company under this Agreement, for
any filing fees and other expenses (including reasonable fees and
disbursements of counsel) in connection with qualification of the
Offered Securities for sale under the laws of such jurisdictions
as the Underwriter reasonably designates and the printing of
memoranda relating thereto, for the filing fee (if any) incident
to the review by the National Association of Securities Dealers,
Inc. of the Offered Securities, for any travel expenses of the
Company's officers and employees and any other expenses of the
Company in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities and for expenses
incurred in distributing preliminary prospectuses and the Pro-
spectus (including any amendments and supplements thereto) to the
Underwriter.
(2) Each of the Selling Stockholders agrees with
the Underwriter that it will pay or cause to be paid all of its
expenses incident to the performance of its obligations under
this Agreement, including but not limited to fees and disburse-
ments of their counsel and any transfer taxes on the sale by the
Selling Stockholders of the Offered Securities to the Underwrit-
er.
(h) The Selling Stockholders agree to deliver to the
Underwriter, attention: Transactions Advisory Group, on or prior
to the First Closing Date a properly completed and executed
United States Treasury Department Form W-8 (or other applicable
form or statement specified by Treasury Department regulations in
lieu thereof).
(i) The Company agrees that on or prior to the Closing
Date it will file the Certificate of Merger (the "Certificate of
Merger") relating to the merger of Cranes with and into the
Company with the Secretary of State of the State of Delaware, in
substantially the form previously delivered to the Underwriter
and all as contemplated by the Merger Documents.
6. Conditions of the Obligations of the Underwriter. The
obligations of the Underwriter to purchase and pay for the
Offered Securities on the Closing Date will be subject to the
accuracy in all material respects of the representations and
warranties on the part of the Company and the Selling Stockhold-
ers herein, to the accuracy of the statements of Company officers
made pursuant to the provisions hereof, to the performance by the
Company and the Selling Stockholders of their obligations hereun-
der and to the following additional conditions precedent:
(a) The Underwriter shall have received a letter,
dated the date of delivery thereof (which, if the Effective Time
of the Initial Registration Statement is prior to the execution
and delivery of this Agreement, shall be on or prior to the date
of this Agreement or, if the Effective Time of the Initial
Registration Statement is subsequent to the execution and deliv-
ery of this Agreement, shall be prior to the filing of the
amendment or post-effective amendment to the registration state-
ment to be filed shortly prior to such Effective Time), of Price
Waterhouse LLP confirming that they are independent public
accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the
effect that:
(i) in their opinion the financial statements and
schedules examined by them and included or incorporated by
reference in the Registration Statements comply as to form in all
material respects with the applicable accounting requirements of
the Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified
by the American Institute of Certified Public Accountants for a
review of interim financial information as described in Statement
of Auditing Standards No. 71, Interim Financial Information, on
the unaudited financial statements included in or incorporated by
reference in the Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, and of all subsidiaries of
the Company for which such interim financial statements are
provided, inquiries of officials of the Company, and of such
subsidiaries, who have responsibility for financial and account-
ing matters and other specified procedures, nothing came to their
attention that caused them to believe that:
(A) the unaudited financial statements
included in or incorporated by reference in the Registration
Statements do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the related
published Rules and Regulations or any material modifications
should be made to such unaudited financial statements for them to
be in conformity with generally accepted accounting principles;
(B) at the date of the latest available
balance sheet read by such accountants there was any change in
the capital stock or any material increase in long-term debt of
the Company and its consolidated subsidiaries, as compared with
amounts shown on the latest balance sheet included in the Pro-
spectus; or
(C) for the period from the closing date of
the latest income statement included in the Prospectus to the
closing date of the latest available income statement read by
such accountants there were any decreases, as compared with the
corresponding period of the previous year and with the period of
corresponding length ended the date of the latest income state-
ment included in the Prospectus, in consolidated net sales or in
the total or per share amounts of consolidated net income;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are disclosed in such letter;
(iv) they have performed the procedures specified
by the American Institute of Certified Public Accountants for a
review on pro forma financial information as described in State-
ment on Standards for Attestation Engagement No. 1, Reporting on
Pro Forma Financial Statements, on the pro forma financial
statements included in or incorporated by reference in the
Registration Statements;
(v) on the basis of the review referred to in
clause (iv) above, nothing came to their attention that caused
them to believe that the pro forma financial statements included
in or incorporated by reference in the Registration Statements do
not comply as to form in all material respects with the applica-
ble accounting requirements of the Act and the related published
Rules and Regulations or that the pro forma adjustments have not
been properly applied to the historical amounts in the compila-
tion of those statements; and
(vi) they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts, percentages
and other financial information are derived from the general
accounting records of the Company and its subsidiaries subject to
the internal controls of the Company's accounting system or are
derived directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results,
except as otherwise specified in such letter.
For purposes of this subsection (a), (i) if the Effective
Time of the Initial Registration Statements is subsequent to the
execution and delivery of this Agreement, "Registration State-
ments" shall mean the initial registration statement as proposed
to be amended by the amendment or post-effective amendment to be
filed shortly prior to its Effective Time, (ii) if the Effective
Time of the Initial Registration Statements is prior to the
execution and delivery of this Agreement but the Effective Time
of the Additional Registration Statement is subsequent to such
execution and delivery, "Registration Statements" shall mean the
Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by
the post-effective amendment to be filed shortly prior to its
Effective Time, and (iii) "Prospectus" shall mean the prospectus
included in the Registration Statements. All financial statements
and schedules included in material incorporated by reference into
the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or such
later date as shall have been consented to by the Underwriter. If
the Effective Time of the Additional Registration Statement (if
any) is not prior to the execution and delivery of this Agree-
ment, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or, if
earlier, the time the Prospectus is printed and distributed to
any Underwriter, or shall have occurred at such later date as
shall have been consented to by the Underwriter. If the Effec-
tive Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus shall
have been filed with the Commission in accordance with the Rules
and Regulations and Section 5(a) of this Agreement. Prior to such
Closing Date, no stop order suspending the effectiveness of a
Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge
of the Selling Stockholders, the Company or the Underwriter,
shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event that could reasonably be expected to result
in a change, in the condition (financial or other), business,
properties or results of operations of the Company and its
subsidiaries taken as a whole, which, in the judgment of the
Underwriter, is material and adverse to the Company and its
subsidiaries taken as a whole and makes it impractical or inad-
visable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any down-
grading in the rating of any debt securities of the Company by
any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or
review its rating in effect on the date of this Agreement of any
debt securities or preferred stock of the Company (other than an
announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating);
(iii) any suspension or material limitation of trading in securi-
ties generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in
the over-the-counter market; (iv) any banking moratorium declared
by U.S. Federal or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other sub-
stantial national or international calamity or emergency if, in
the judgment of the Underwriter, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impracti-
cal or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) The Underwriter shall have received an opinion,
dated such Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, counsel to the Company, to the effect that:
(i) The Company and each Significant Subsidiary
organized under the laws of the State of Delaware have been duly
incorporated and are existing corporations in good standing under
the laws of their respective jurisdictions of incorporation, with
corporate power and authority to own their respective properties
and conduct their respective businesses as described in the
Prospectus;
(ii) The Offered Securities have been duly
authorized and, as of the Closing Date, validly issued, fully
paid and nonassessable, and conform in all material respects to
the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to the Offered Securities under the charter or by-laws of
the Company or under Delaware law;
(iii) Except for those agreements referred to in
the representation in Section 2(a)(vii) above, there are no
contracts, agreements or understandings known to such counsel
between the Company and any person granting such person the right
to require the Company to include such securities in the securi-
ties registered pursuant to the Registration Statement;
(iv) The Company is not and, after giving effect
to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Prospec-
tus, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended;
(v) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any court
is required to be obtained or made by the Company or any Signifi-
cant Subsidiary incorporated under the laws of the State of New
York or the State of Delaware ("Domestic Significant Subsidiar-
ies") under any Applicable Law (as defined) for the consummation
of the transactions contemplated by this Agreement or the Merger
Documents or otherwise in connection with the sale of the Offered
Securities, except such as have been obtained and made under the
Act and such as may be required under state securities laws (with
respect to which such counsel need express no opinion);
(vi) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company. Each of the
Merger Documents and the Certificate of Merger has been duly
authorized, executed and delivered by the Company and Cranes and
each constitutes a valid and legally binding obligation of the
Company and Cranes, respectively, in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorgani-
zation, moratorium, and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.The execution and delivery of, and performance by each
of the Company and Cranes of its respective obligations under,
this Agreement, the Certificate of Merger and the Merger Docu-
ments will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any
Applicable Law or order known to such counsel of any governmental
agency or body or any court having jurisdiction over the Company
or any Domestic Significant Subsidiary or any material portion of
their respective properties (except that any rights to indemnity
and contribution herein may be limited by federal and state
securities laws and public policy considerations), or any agree-
ment or instrument filed as an exhibit to the Registration
Statement or any Exchange Act filing incorporated by reference in
the Registration Statement, or the charter or by-laws of the
Company or any Domestic Significant Subsidiary; and
(vii) The Initial Registration Statement was
declared effective under the Act at 2:00 p.m. on December 4,
1997, the Additional Registration Statement (if any) was filed
and became effective under the Act as of the date and time (if
determinable) specified in such opinion, the Prospectus either
was filed with the Commission pursuant to the subparagraph of
Rule 424(b) specified in such opinion on the date specified
therein or was included in the Initial Registration Statement or
the Additional Registration Statement (as the case may be), and,
to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of a Registration Statement or any
part thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act, and each Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective effective
or issue dates, complied as to form in all material respects with
the requirements of the Act and the Rules and Regulations; and
that while such counsel is not passing upon and does not assume
responsibility for, and shall not be deemed to have independently
verified the accuracy, completeness or fairness of the statements
contained in any Registration Statement or any Prospectus (except
statements made under the caption "Description of Securities"
insofar as they relate to legal matters), such counsel shall
state that no facts have come to such counsel's attention in the
course of participating with officers and representatives of the
Company in the preparation of a Registration Statement (except
for financial statements and schedules and other financial and
statistical data contained therein, as to which such counsel need
express no opinion) to lead it to believe that any part of a
Registration Statement or any amendment thereto, as of its
effective date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading; or that the Prospectus or any
amendment or supplement thereto, as of its issue date or as of
such Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; the descriptions in
the Registration Statements and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate in all material respects and fairly present the informa-
tion required to be shown; and such counsel do not know of any
legal or governmental proceedings required to be described in a
Registration Statement or the Prospectus which are not described
as required or of any contracts or documents of a character
required to be described in a Registration Statement or the
Prospectus or to be filed as exhibits to a Registration Statement
which are not described and filed as required.
Such counsel may state that, as it relates to enforceabili-
ty, the opinions expressed in clause (viii) are limited by (1)
bankruptcy, insolvency, fraudulent conveyance and similar laws
affecting creditors' rights generally and (2) equitable princi-
ples of general applicability. Such counsel may also qualify
such opinion in other respects reasonably acceptable to the
Underwriter.
(e) The Underwriter shall have received an opinion,
dated such Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, general counsel
of the Company, to the effect that:
(i) The Company and each Significant Subsidiary
incorporated within the United States of America (the "Domestic
Significant Subsidiaries") have been duly incorporated and are
existing corporations in good standing under the laws of their
respective jurisdictions of incorporation, with corporate power
and authority to own their respective properties and conduct
their respective businesses as described in the Prospectus; and
the Company and each Domestic Significant Subsidiary are duly
qualified to do business as foreign corporations in good standing
in all other jurisdictions in which their ownership or lease of
property or the conduct of their business requires such qualifi-
cations, except to the extent that the failure to be so qualified
and in good standing could not reasonably be expected, individu-
ally or in the aggregate, to have a Material Adverse Effect.
Based on my review of organizational documents (or English
translations thereof) of each Significant Subsidiary incorporated
outside the United States of America (the "Foreign Significant
Subsidiaries") and interviews and statements of persons who are
informed as to the formation and status of the Foreign Signifi-
cant Subsidiaries, the Foreign Significant Subsidiaries have been
duly incorporated and are existing corporations in good standing
under the laws of their respective countries of organization,
with corporate power and authority to own their respective
properties and conduct their respective businesses as described
in the Prospectus; based on my review of organizational documents
(or English translations thereof) of the Foreign Significant
Subsidiaries and interviews and statements of persons who are
informed as to the formation and status of the Foreign Signifi-
cant Subsidiaries, the Foreign Significant Subsidiaries are duly
qualified to do business as foreign corporations in good standing
in all other jurisdictions in which their ownership or lease of
property or the conduct of their business requires such qualifi-
cations, except to the extent that the failure to be so qualified
and in good standing could not reasonably be expected, individu-
ally or in the aggregate, to have a Material Adverse Effect.
(ii) Based upon my examination of the corporate
stock books and records of each of the Domestic Significant
Subsidiaries and the corporate stock books and records (or
English translations thereof) of the Foreign Significant Subsid-
iaries and interviews and statements of persons who are informed
as to the status of the Foreign Significant Subsidiaries, the
Offered Securities and all other outstanding shares of the
capital stock of the Company and each Significant Subsidiary have
been duly authorized and validly issued, are fully paid and
nonassessable and conform in all material respects to the de-
scription thereof contained in the Prospectus; and the stockhold-
ers of the Company have no preemptive rights with respect to the
Offered Securities;
(iii) Except for those agreements referred to in
the representation set forth in Section 2(a)(vii) hereof, there
are no contracts, agreements or understandings known to such
counsel between the Company and any person granting such person
the right to require the Company to file a registration statement
under the Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to
the Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Act;
(iv) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any court
is required to be obtained or made by the Company or any Signifi-
cant Subsidiary under any Applicable Law for the consummation of
the transactions contemplated by this Agreement, the Certificate
of Merger and the Merger Documents or otherwise in connection
with the sale of the Offered Securities, except such as have been
obtained and made under the Act and such as may be required under
state securities laws (with respect to which such counsel need
express no opinion);
(v) The execution and delivery of, and perfor-
▇▇▇▇▇ by each of the Company and Cranes (to the extent each is a
party thereto) of its obligations under, this Agreement, the
Merger Documents and the Certificate of Merger will not result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any Applicable Law or order known to
such counsel of any governmental agency or body or any court
having jurisdiction over the Company or any Significant Subsid-
iary or any of their respective properties (except that any
rights to indemnity and contribution herein may be limited by
federal and state securities laws and public policy consider-
ations), or any agreement or instrument to which the Company or
any Significant Subsidiary is a party or by which the Company or
any Significant Subsidiary is bound or to which any of properties
of the Company or any Significant Subsidiary is subject, or the
charter or by-laws of the Company or any Significant Subsidiary.
(vi) The Registration Statement was declared
effective under the Act at 2:00 p.m. on December 4, 1997, the
Additional Registration Statement (if any) was filed and became
effective under the Act as of the date and time (if determinable)
specified in such opinion, the Prospectus either was filed with
the Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein or was
included in the Registration Statement or the Additional Regis-
tration Statement (as the case may be), and, to the best of the
knowledge of such counsel, no stop order suspending the effec-
tiveness of a Registration Statement or any part thereof has been
issued and no proceedings for that purpose have been instituted
or are pending or contemplated under the Act, and each Registra-
tion Statement and the Prospectus, and each amendment or supple-
ment thereto, as of their respective effective or issue dates,
complied as to form in all material respects with the require-
ments of the Act and the Rules and Regulations; and that while
such counsel is not passing upon and does not assume responsibil-
ity for, and shall not be deemed to have independently verified
the accuracy, completeness or fairness of the statements con-
tained in any Registration Statement or any Prospectus (except
statements made under the caption "Description of Securities"
insofar as they relate to legal matters), such counsel shall
state that no facts have come to such counsel's attention in the
course of participating with officers and representatives of the
Company in the preparation of a Registration Statement (except
for financial statements and schedules and other financial and
statistical data contained therein, as to which such counsel need
express no opinion) to lead it to believe that any part of a
Registration Statement or any amendment thereto, as of its
effective date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading; or that the Prospectus or any
amendment or supplement thereto, as of its issue date or as of
such Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; the descriptions in
the Registration Statements and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown;
and such counsel do not know of any legal or governmental pro-
ceedings required to be described in a Registration Statement or
the Prospectus which are not described as required or of any
contracts or documents of a character required to be described in
a Registration Statement or the Prospectus or to be filed as
exhibits to a Registration Statement which are not described or
filed as required; and
(vii) This Agreement has been duly authorized,
executed and delivered by the Company.
Such counsel may state that, as it relates to enforce-
ability, the opinions expressed in clause (vii) are limited by
(1) bankruptcy, insolvency, fraudulent conveyance and similar
laws affecting creditors' rights generally and (2) equitable
principles of general applicability. Such counsel may also
qualify such opinion in other respects reasonably acceptable to
the Underwriter.
(f) The Underwriter shall have received an opinion,
dated such Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel
for the Selling Stockholders, to the effect that:
Upon payment for and delivery of the Offered
Securities indorsed to the Underwriter by an effective indorse-
ment and in accordance with the Underwriting Agreement, and
assuming the Underwriter has purchased the Offered Securities
without notice of any adverse claim within the meaning of the
Uniform Commercial Code as in effect on the date hereof in the
State of New York, the Underwriter will have acquired all the
rights of the Selling Stockholders in the Offered Securities and
will also have acquired their interest in such Offered Securities
free of any adverse claim (within the meaning of the Uniform
Commercial code as in effect on the date hereof in the State of
New York).
(g) The Underwriter shall have received from Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriter,
such opinion or opinions, dated the Closing Date, with respect to
the incorporation of the Company, the Registration Statements,
the Prospectus and other related matters as the Underwriter may
require, and the Selling Stockholders and the Company shall have
furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such
matters.
(h) The Underwriter shall have received a certificate,
dated such Closing Date, of the President or any Vice President
and a principal financial or accounting officer of the Company in
which such officers, to their knowledge after reasonable investi-
gation, shall state that: the representations and warranties of
the Company in this Agreement are true and correct in all materi-
al respects; the Company has complied in all material respects
with all agreements and satisfied all conditions on its part to
be performed or satisfied hereunder at or prior to such Closing
Date; no stop order suspending the effectiveness of any Registra-
tion Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commis-
sion; the Additional Registration Statement (if any) satisfying
the requirements of subparagraphs (1) and (3) of Rule 462(b) was
filed pursuant to Rule 462(b), including payment of the applica-
ble filing fee in accordance with Rule 111(a) or (b) under the
Act, prior to the time the Prospectus was printed and distributed
to the Underwriter; and, subsequent to the date of the most
recent financial statements incorporated by reference in the
Prospectus, there has been no material adverse change, nor any
development or event that could reasonably be expected to result
in a material adverse change, in the condition (financial or
other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth
in or contemplated by the Prospectus or as described in such
certificate.
(i) The Underwriter shall have received a certificate,
dated such Closing Date, of an authorized officer of each of the
Selling Stockholders, in which such authorized officer, to the
best of his or her knowledge after reasonable investigation,
shall state that: the representations and warranties of the
Selling Stockholders in this Agreement are true and correct in
all material respects and the Selling Stockholders have complied
in all material respects with all agreements and satisfied all
conditions on their part to be performed or satisfied under this
Agreement at or prior to such Closing Date.
(j) The Underwriter shall have received a letter,
dated such Closing Date, of Price Waterhouse LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not
more than three business days prior to such Closing Date for the
purposes of this subsection.
(k) The Offered Securities shall have been approved
for listing on the New York Stock Exchange, subject only to
notice of issuance.
(l) The Underwriter shall have received evidence
reasonably satisfactory to it that the Certificate of Merger
shall have been accepted for filing by the Secretary of State of
the State of Delaware and the transactions contemplated by the
Merger Documents shall have been consummated.
(m) The Selling Stockholders and the Company will
furnish the Underwriter with such conformed copies of such
opinions, certificates, letters and documents as the Underwriter
reasonably requests. The Underwriter may in its sole discretion
waive compliance with any conditions to the obligations of the
Underwriter hereunder.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless the
Underwriter against any losses, claims, damages or liabilities,
joint or several, to which the Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement there-
to, or any related preliminary prospectus, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse the
Underwriter for any legal or other expenses reasonably incurred
by the Underwriter in connection with investigating or defending
any such loss, claim, damage, liability or action as such expens-
es are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim,
damage or liability (or actions in respect thereof) arises out of
or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any of such documents in
conformity with written information furnished to the Company by
the Underwriter specifically for use therein, it being understood
and agreed that the only such information furnished by the
Underwriter consists of the information described as such in
subsection (d) below.
(b) The Company will indemnify and hold harmless each
Selling Stockholder against any losses, claims, damages or
liabilities, to which the Selling Stockholders may become sub-
ject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement there-
to, or any related preliminary prospectus, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse the
Selling Stockholders for any legal or other expenses reasonably
incurred by such Selling Stockholders in connection with investi-
gating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability (or actions in respect
thereof) arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from
any of such documents in conformity with written information
furnished to the Company by the Selling Stockholders specifically
for use therein, it being understood and agreed that the only
such information furnished by the Selling Stockholders consists
of the information described as such in subsection (c) below.
(c) The Selling Stockholders will indemnify and hold
harmless the Underwriter against any losses, claims, damages or
liabilities, to which the Underwriter may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of
any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue state-
ment or omission was made in conformity with information fur-
nished to the Company in writing by the Selling Stockholders
specifically for use therein, and will reimburse the Underwriter
for any legal or other expenses reasonably incurred by the
Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses
are incurred, it being understood and agreed that the only such
information furnished on behalf of the Selling Stockholders
consists of the following information in the Prospectus furnished
on behalf of the Selling Stockholders: the information appearing
under the captions "Selling Stockholders" (other than the infor-
mation appearing in the columns entitled "Percent" and the
related footnotes). Notwithstanding the foregoing, in no event
shall the Selling Stockholders be required to pay an amount in
indemnification under this subsection (c) in excess of the total
price at which the Offered Securities sold by the Selling Stock-
holders hereunder was offered to the public.
(d) The Underwriter will severally and not jointly
indemnify and hold harmless the Company and the Selling Stock-
holders against any losses, claims, damages or liabilities to
which the Company or such Selling Stockholders may become sub-
ject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement there-
to, or any related preliminary prospectus, or arise out of or are
based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made
in conformity with written information furnished to the Company
by the Underwriter specifically for use therein, and will ▇▇▇▇-
▇▇▇▇▇ any legal or other expenses reasonably incurred by the
Company and the Selling Stockholders in connection with investi-
gating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and
agreed that the only such information furnished by the Underwrit-
er consists of the following information in the Prospectus: the
legend concerning over-allotments and stabilizing on the inside
front cover page and the penultimate paragraph under the caption
"Underwriting" concerning over-allotments and stabilizing.
(e) Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to
be made against an indemnifying party under subsection (a), (b),
(c) or (d) above, notify the indemnifying party of the commence-
ment thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to
any indemnified party otherwise than under subsection (a), (b),
(c) or (d) above. In case any such action is brought against any
indemnified party and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemni-
fied party (who shall not, except with the consent of the indem-
nified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. In no event shall
an indemnifying party be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from
their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement
of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party unless
such settlement includes an unconditional release of such indem-
nified party from all liability on any claims that are the
subject matter of such action. An indemnifying party shall not
be liable for any settlement of any proceeding effected without
its prior written consent; provided, however, that if at any time
an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees it shall be liable for
any settlement effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by
such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.
(f) If the indemnification provided for in this
Section is unavailable or insufficient to hold harmless an
indemnified party under subsection (a), (b), (c) or (d) above,
then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a),
(b), (c) or (d) above, (i) in such proportion as is appropriate
to reflect the relative benefits received by the (x) the Company,
(y) the Selling Stockholders and (z) the Underwriter from the
offering of the Securities 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 (x) the Company, (y) the Selling Stockholders and (z)
the Underwriter in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The rela-
tive benefits received by the Company, on the one hand, and the
Underwriter, on the other hand, shall be deemed to be in the same
proportion as the total net proceeds from the offering (before
deducting expenses) received by the Selling Stockholders bear to
the total underwriting discounts and commissions received by the
Underwriter. The relative benefits received by each Selling
Stockholder, on the one hand, and the Underwriter, on the other
hand, shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses)
received by such Selling Stockholder bear to the total underwrit-
ing discounts and commissions received by the Underwriter. The
relative fault shall be determined by reference to, among other
things, whether the untrue 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, the
Selling Stockholders or the Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this
subsection (f) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connec-
tion with investigating or defending any action or claim which is
the subject of this subsection (f). Notwithstanding the provi-
sions of this subsection (f), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to
pay by reason of such untrue 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. Notwithstanding
the foregoing, in no event shall the Selling Stockholders be
required to pay any amount in contribution under this subsection
(f) in excess of the total price at which the Securities sold by
the Selling Stockholders hereunder were offered to the public
exceeds the amount the Selling Stockholders has otherwise been
required to pay pursuant to subsection (c) above.
Stockholders, respectively, under this Section shall be in
addition to any liability which the Company and the Selling
Stockholders may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any
Underwriter or either Selling Stockholder, as applicable, within
the meaning of the Act; and the obligations of the Underwriter
under this Section shall be in addition to any liability which
the Underwriter may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Company, to
each officer of the Company who has signed a Registration State-
ment and to each person, if any, who controls the Company within
the meaning of the Act.
8. Survival of Certain Representations and Obligations.
The respective indemnities, agreements, representations, warran-
ties and other statements of the Selling Stockholders, of the
Company or its officers and of the Underwriter set forth in or
made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of the Underwriter, any
Selling Stockholders, the Company or any of their respective
representatives, officers or directors or any controlling person,
and will survive delivery of and payment for the Offered Securi-
ties. If for any reason the purchase of the Offered Securities by
the Underwriter is not consummated, the Company and the Selling
Stockholders shall remain responsible for the expenses to be paid
or reimbursed by them pursuant to Section 5 and the respective
obligations of the Company, the Selling Stockholders, and the
Underwriter pursuant to Section 7 shall remain in effect; if any
Offered Securities have been purchased hereunder, the Company and
the Selling Stockholders shall remain responsible for the expens-
es to be paid or reimbursed by them pursuant to Section 5 and the
respective obligations of the Company, the Selling Stockholders,
and the Underwriter pursuant to Section 7 shall remain in effect,
and the representations and warranties in Section 2 and all other
obligations under Section 5 shall also remain in effect. If the
purchase of the Offered Securities by the Underwriter is not
consummated other than solely because of the occurrence of any
event specified in clause (iii), (iv) or (v) of Section 6(c), the
Company will reimburse the Underwriter for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably
incurred by it in connection with the offering of the Offered
Securities.
9. Notices. All communications hereunder will be in writing
and, if sent to the Underwriter, will be mailed, delivered or
telegraphed and confirmed to the Underwriter, c/o Credit Suisse
First Boston Corporation, Eleven Madison Avenue, New York, N.Y.
10010-3629, Attention: Investment Banking Department - Transac-
tions Advisory Group, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at Terex Corpora-
tion, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, or, if sent to the Selling Stockholders, will be
mailed, delivered or telegraphed and confirmed to Legris Indus-
tries, S.A. ▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇.
10. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective
personal representatives and successors and the officers and
directors and controlling persons referred to in Section 7, and
no other person will have any right or obligation hereunder.
11. Counterparts. This Agreement may be executed 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 Agreement.
12. Applicable Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws. The
Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City
of New York in any suit or proceeding arising out of or relating
to this Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Underwriter's
understanding of our agreement, kindly sign and return to the
Company one of the counterparts hereof, whereupon it will become
a binding agreement among the Selling Stockholders, the Company
and the several Underwriter in accordance with its terms.
Very truly yours,
Legris Industries, S.A.
By /s/ Emmmanuel Faber
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Attorney-in-Fact
Potain, S.A.
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Attorney-in-Fact
Terex Corporation
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
and Secretary
The foregoing Underwriting Agreement is hereby confirmed and
accepted as of the date first above written.
Credit Suisse First Boston Corporation
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Managing Director
