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ACTUANT CORPORATION
(a Wisconsin corporation)
3,000,000 Shares of Class A Common Stock
UNDERWRITING AGREEMENT
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Dated: February 7, 2002
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Table of Contents
Page
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SECTION 1. Representations and Warranties. 4
SECTION 2. Sale and Delivery to Underwriters; Closing. 12
SECTION 3. Covenants of the Company 13
SECTION 4. Payment of Expenses. 16
SECTION 5. Conditions of Underwriters' Obligations 17
SECTION 6. Indemnification. 20
SECTION 7. Contribution 22
SECTION 8. Representations, Warranties and Agreements to Survive Delivery 23
SECTION 9. Termination of Agreement. 23
SECTION 10. Default by One or More of the Underwriters 23
SECTION 11. Notices 24
SECTION 12. Parties 24
SECTION 13. Governing Law and Time 24
SECTION 14. Effect of Headings 24
SCHEDULES
Schedule A - List of Underwriters Sch A-1
Schedule B - Pricing Information Sch B-1
Schedule C - List of Subsidiaries Sch C-1
Schedule D - List of Persons Subject to Lock-up Sch D-1
EXHIBITS
Exhibit A - Form of Opinion of Company Counsel A-1
Exhibit B - Form of Lock-up Letter B-1
2
ACTUANT CORPORATION
(a Wisconsin corporation)
3,000,000 Shares of Class A Common Stock
(Par Value $.20 Per Share)
UNDERWRITING AGREEMENT
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February 7, 2002
First Union Securities, Inc.
ABN AMRO Rothschild LLC
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
c/o First Union Securities, Inc.
▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Actuant Corporation, a Wisconsin corporation (the "Company"), confirms
its agreement with First Union Securities, Inc. ("First Union") and each of the
other Underwriters named in Schedule A hereto (collectively, the "Underwriters",
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom First Union, ABN AMRO Rothschild LLC,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated and Bear, ▇▇▇▇▇▇▇ & Co. Inc. are acting as
representatives (in such capacity, the "Representatives"), with respect to the
issue and sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of shares of Class A Common
Stock, par value $.20 per share, of the Company ("Common Stock") set forth in
said Schedule A, and with respect to the grant by the Company to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of 450,000 additional shares of
Common Stock to cover over-allotments, if any. The aforesaid 3,000,000 shares of
Common Stock (the "Initial Securities") to be purchased by the Underwriters and
all or any part of the 450,000 shares of Common Stock subject to the option
described in Section 2(b) hereof (the "Option Securities") are hereinafter
called, collectively, the "Securities".
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-47493) and, if
applicable, one or more amendments thereto covering the registration of, among
other things, the Securities under the Securities Act of 1933, as amended (the
"1933 Act"). Such registration statement, including the exhibits thereto, the
schedules thereto, if any, and all documents incorporated or deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, as amended (if applicable) at the time it became effective, is herein
called the "Registration
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Statement." Any related registration statement filed by the Company pursuant to
Rule 462(b) of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. Promptly after the
execution of this Agreement, the Company will file with the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations ("Rule 424(b)") a prospectus
supplement relating to the Securities (the "Prospectus Supplement"), together
with the related prospectus dated January 27, 1999 (the "Base Prospectus"), and
the Company has previously advised you of all information (financial and other)
that will be set forth therein. The Prospectus Supplement and the Base
Prospectus, including all documents incorporated or deemed to be incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the
form first furnished to the Underwriters for use in connection with the offering
of the Securities, are hereinafter referred to, collectively, as the
"Prospectus." Each prospectus supplement relating to the Securities used prior
to the date of this Agreement, together with the related prospectus and all
documents incorporated or deemed to be incorporated by reference therein
pursuant to Item 12 of Form S-3, are hereinafter referred to, collectively, as a
"preliminary prospectus". For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering
Analysis and Retrieval system ("▇▇▇▇▇").
The Company has, prior to the date of this Agreement, entered into a
Credit Agreement dated as of July 31, 2000 among the Company (formerly known as
Applied Power Inc.), Credit Suisse First Boston, as lead arranger, collateral
agent and administrative agent, First Union National Bank, as syndication agent,
ING (U.S.) Capital LLC, as documentation agent, and the lenders party thereto,
including all amendments and consents thereto and guarantees, pledge agreements,
mortgages, security agreements and other instruments and agreements entered into
in connection therewith and pursuant thereto (collectively, the "Credit
Agreement"). In order to comply with certain covenants contained in the Credit
Agreement as a result of the use by the Company of the proceeds from the issue
and sale by the Company of the Securities as described in the Prospectus
Supplement under the caption "Use of Proceeds", the Company has, prior to the
date of this Agreement, obtained a consent dated as of January 23, 2002 from the
Required Lenders (as such term is defined in the Credit Agreement) under the
Credit Agreement (the "Credit Agreement Consent").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (and all
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
or deemed to be incorporated by reference in the Registration Statement, any
preliminary prospectus or the Prospectus, as the case may be; and all references
in this Agreement to amendments or supplements to the Registration Statement,
any preliminary prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934, as amended
(the "1934 Act"), which is incorporated or deemed to be incorporated by
reference in the Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company. The Company represents
and warrants to each Underwriter as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agrees with each Underwriter, as
follows:
(i) Compliance with Registration Requirements. The Company meets the
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requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became or
become effective, at the date of this Agreement and at the Closing Time
(and, if any Option Securities are purchased, at the relevant Date of
Delivery), the Registration Statement, the Rule 462(b) Registration
Statement and any amendments and supplements thereto complied and will
comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and 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. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement was
issued and at the Closing Time (and, if any Option Securities are
purchased, at the relevant Date of Delivery), included or will include an
untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through First Union expressly for use
in the Registration Statement or Prospectus.
Each preliminary prospectus and the 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 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with this offering was identical to the electronically
transmitted copy thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to
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be incorporated by reference in the Registration Statement, at the time
they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, at the time the Registration Statement became
effective, at the date of this Agreement, at the time the Prospectus was
issued and at the Closing Time (and if any Option Securities are purchased,
at the relevant Date of Delivery), did not and will not contain an untrue
statement of a material fact or omit to
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state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(iii) Independent Accountants. The accountants who certified the
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financial statements and supporting schedules included in the Registration
Statement and the Prospectus are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the
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Registration Statement and the Prospectus, together with the related
schedules (if any) and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and the
results of operations, changes in shareholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods specified;
and such financial statements have been prepared in conformity with
generally accepted accounting principles in the United States ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The data appearing in the Prospectus under the captions
"Ratio of Earnings to Fixed Charges", "Selected Consolidated Financial
Data" and "Prospectus Supplement Summary--Summary Consolidated Financial
Data" present fairly the information shown therein and have been compiled
on an accounting basis consistent with that of the audited financial
statements of the Company included in the Registration Statement and the
Prospectus. The data appearing in the Prospectus under the caption
"Prospectus Supplement Summary--Summary Adjusted Consolidated Financial
Data" and the other adjusted financial information included in the
Prospectus give appropriate effect to the transactions, assumptions and
circumstances referred to therein, have been appropriately adjusted on the
bases described therein and reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
(v) No Material Adverse Change in Business. Since the respective
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dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as
one enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(vi) Good Standing of the Company. The Company has been duly
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organized and is validly existing as a corporation in active status
under the laws of the State of Wisconsin and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing (or
equivalent status) in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so
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to qualify or to be in good standing (or equivalent status) would not
result in a Material Adverse Effect.
(vii) Subsidiaries. Each subsidiary of the Company has been duly
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organized and is validly existing as a corporation,
limited partnership or limited liability company, as the case may be,
in good standing (or equivalent status) under the laws of the
jurisdiction of its organization, has power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation, limited partnership or limited liability company, as the
case may be, to transact business and is in good standing (or
equivalent status) in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing (or equivalent status) would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Prospectus, all of the issued and outstanding capital stock of each
such subsidiary that is a corporation, all of the issued and
outstanding partnership interests of each such subsidiary that is a
limited partnership and all of the issued and outstanding limited
liability company interests, membership interests or other similar
interests of each such subsidiary that is a limited liability company
have been duly authorized and validly issued, are fully paid and
(except as otherwise provided in Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law (the "WBCL"), as judicially
interpreted) non-assessable and are owned by the Company, directly or
through subsidiaries, free and clear, except for the pledge of the
capital stock of certain subsidiaries to secure borrowings and
obligations under the Credit Agreement as described in the Prospectus,
of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity; and none of the outstanding shares of capital stock,
partnership interests or limited liability company interests,
membership interests or other similar interests of any such subsidiary
was issued in violation of any preemptive rights, rights of first
refusal or other similar rights of any securityholder of such
subsidiary.
(viii) Exhibit 21 to the Company's Annual Report on Form 10-K for
the fiscal year ended August 31, 2001 contains a true, complete and
correct list of each active subsidiary of the Company and accurately
sets forth the state or country of organization of each such
subsidiary. Each of the Subject Subsidiaries (as defined in Schedule C
hereto) is a subsidiary of the Company and Schedule C accurately sets
forth whether such Subject Subsidiary is a corporation, limited
partnership or limited liability company, its jurisdiction of
organization and, in the case of any Subject Subsidiary that is a
limited partnership, its partners. The Subject Subsidiaries are the
Company's only Significant Subsidiaries, other than Applied Power
Europa B.V., a Netherlands corporation, and Applied Power
International S.A., a Switzerland corporation (as used herein, the
term "Significant Subsidiary" means any subsidiary of the Company that
is a "significant subsidiary" as defined in Rule 1.02 of Regulation
S-X of the Commission, except that, in determining whether any
subsidiary is a "significant subsidiary" the number "5%" shall be
substituted for the number "10%" each time "10%" appears in such
definition in Rule 1.02).
(ix) The total assets of the Subject Subsidiaries and the
Company, in each case excluding any of their respective subsidiaries
other than the Subject Subsidiaries, determined on a consolidated
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assets of the Company; for the fiscal year ended August 31, 2001, the
total operating income of the Subject Subsidiaries and the Company, in
each case excluding any of their respective subsidiaries other than
the Subject Subsidiaries, determined on a consolidated basis, were
equal to at least 45% of the total consolidated operating income of
the Company for such period.
(x) Capitalization. The authorized, issued and outstanding
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capital stock of the Company is as set forth in the Prospectus in the
column entitled "Actual" under the caption "Capitalization" (except
for subsequent issuances, if any, pursuant to this Agreement, pursuant
to employee or director benefit plans referred to in the Prospectus or
pursuant to the exercise of stock options referred to in the
Prospectus); the shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully
paid and (except as otherwise provided in Section 180.0622(2)(b) of
the WBCL, as judicially interpreted) non-assessable; and none of the
outstanding shares of capital stock of the Company was issued in
violation of any preemptive rights, rights of first refusal or other
similar rights of any securityholder of the Company.
(xi) Authorization of Agreement. This Agreement has been duly
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authorized, executed and delivered by the Company.
(xii) Authorization and Description of Securities. The
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Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued, fully paid and
(except as otherwise provided in Section 180.0622(2)(b) of the WBCL,
as judicially interpreted) non-assessable; the Common Stock, the
Company's authorized but unissued Class B Common Stock, par value $.20
per share (the "Class B Common Stock"), the Company's authorized but
unissued Preferred Stock, par value $1.00 per share, (the "Preferred
Stock"), and the Company's charter and by-laws conform in all material
respects to all of the respective statements relating thereto
contained in the Prospectus and such statements conform to the rights
set forth in the respective instruments and agreements defining the
same; except as otherwise provided in Section 180.0622(2)(b) of the
WBCL, as judicially interpreted, no holder of the Securities will be
subject to personal liability by reason of being such a holder; the
issuance of the Securities is not subject to any preemptive rights,
rights of first refusal or other similar rights of any securityholder
of the Company.
(xiii) Absence of Defaults and Conflicts. Neither the Company nor
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any of its subsidiaries is in violation of its Organizational
Documents (as defined below) or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to
which the Company or any of it subsidiaries is a party or by which it
or any of them may be bound, or to which any of the property or assets
of the Company or any of its subsidiaries is subject (collectively,
"Agreements and Instruments"), except for such defaults as would not
result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein and in the Prospectus (including the issuance and
sale of the Securities and the use of the proceeds from the sale of
the Securities as described in the Prospectus under the caption "Use
of Proceeds") and
8
compliance by the Company with its obligations under this Agreement
have been duly authorized by all necessary corporate action and do not
and will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or default
or Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any
Agreements and Instruments (except for such conflicts, breaches, or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation
of the provisions of the Organizational Documents of the Company or
any of its subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any of
their respective assets, properties or operations. As used herein,
"Organizational Documents" means, in the case of a corporation, its
charter and by laws; in the case of a limited or general partnership,
(a) its certificate of formation or similar organizational document
and (b) its partnership agreement; in the case of a limited liability
company, (c) its articles of organization, certificate of formation or
similar organizational document and (d) its operating agreement,
limited liability company agreement, membership agreement or other
similar agreement; in the case of a trust, its trust agreement; and,
in the case of any other entity, the organizational documents of such
entity; and a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment (through
acceleration or otherwise) of all or a portion of such indebtedness by
the Company or any subsidiary of the Company.
(xiv) Absence of Labor Dispute. No labor dispute with the
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employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company is imminent that might have a Material
Adverse Effect.
(xv) Absence of Proceedings. There is no action, suit,
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proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any of its subsidiaries, which is required to be disclosed
in the Prospectus (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the performance by the
Company of its obligations under this Agreement; the aggregate of all
pending legal or governmental proceedings to which the Company or any
of its subsidiaries is a party or of which any of their respective
property or assets is the subject which are not described in the
Prospectus, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(xvi) Accuracy of Exhibits. There are no contracts or documents
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which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated or deemed to be incorporated
by reference therein or to be filed as exhibits thereto which have not
been so described and filed as required.
(xvii) Possession of Intellectual Property. The Company and its
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subsidiaries
9
own, possess or can acquire on reasonable terms adequate trademarks,
trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct
the business now operated by them, or presently employed by them, 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.
(xviii) Absence of Further Requirements. No consent, approval,
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authorization or order of, or filing with, any governmental authority,
agency or body or any court is required for the offering, issuance,
sale or delivery of the Securities as contemplated by the Agreement,
or for the consummation of any of the other transactions contemplated
by this Agreement, in each case on the terms contemplated by the
Prospectus, except such as have been obtained or made, as the case may
be, under the 1933 Act or the 1933 Act Regulations or such as may be
required under state securities laws, and except for the filing of the
Prospectus pursuant to Rule 424(b) under the 1933 Act.
(xix) Possession of Licenses and Permits. The Company and its
----------------------------------
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, individually or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid
and in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not have a Material Adverse Effect;
and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xx) Title to Property. The Company and its subsidiaries
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possess good and marketable title to all real property owned by them
and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (a)
are described in the Prospectus or (b) do not, individually or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property
by the Company or any of the subsidiaries; and all of the leases and
subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the
Company or any of the subsidiaries holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor
any of its subsidiaries has any notice of any claim of any sort that
has been asserted by anyone adverse to the rights of the Company or
any of its subsidiaries under any of the leases or subleases mentioned
above or affecting or questioning the rights of the Company or any of
its subsidiaries to the continued possession of the leased or
subleased premises under any such lease or sublease, except in any
such case as could not
10
reasonably be expected to result in a Material Adverse Effect.
(xxi) Investment Company Act. The Company is not, and upon the
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issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
under "Use of Proceeds" will not be, an "investment company", or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
(xxii) Environmental Laws. Except as described in the Prospectus and
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except as would not, individually or in the aggregate, result in a Material
Adverse Effect, (A) neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, ground-water, land surface or subsurface
strata) or wildlife, including, without limitation, laws and regulations
relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental
Laws and are in compliance with their requirements, (C) there are no
pending or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigations or proceedings relating to any Environmental Law
against the Company or any of its subsidiaries and (D) there are no events
or circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company and the Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xxiii) Absence of Registration Rights. There are no persons with
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registration rights or other similar rights to have any securities (debt or
equity) (A) registered pursuant to the Registration Statement or included
in the offering contemplated by this Agreement or (B) otherwise registered
by the Company under the 1933 Act.
(xxiv) Parties to Lock-Up Agreements. Schedule D hereto contains a
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true, complete and correct list of all directors and executive officers of
the Company; and each person named in Schedule D hereto has executed and
delivered to the Representatives a lock-up agreement in the form of Exhibit
B hereto.
(xxv) NASD Matters. The Company meets and, at the time that the
------------
Registration Statement was first filed met, the requirements for the use of
Form S-3, as such requirements were in effect immediately prior to October
21, 1992.
(xxvi) WBCL Matters. The offering, issuance and sale of the
------------
Securities as contemplated by this Agreement and Prospectus and the
consummation of the other transactions contemplated by this Agreement are
not subject to or limited by any "control share" statutes or anti-takeover
laws, rules or regulations under the WBCL, including, but not limited to,
the provisions of the WBCL described in the Prospectus Supplement under
11
the caption "Description of Capital Stock"; the voting and other rights of
the Securities and the holders thereof are not and will not be subject to
or limited by any such laws, rules or regulations, and the Securities
purchased by investors from the Underwriters in the offering contemplated
by this Agreement are not subject to Section 180.1150(2) of the WBCL.
(xxvii) NYSE Matters. The Securities have been approved for listing
------------
on the New York Stock Exchange (the "NYSE"), subject to official notice of
issuance.
(xxviii) Credit Agreement Consent. The Credit Agreement Consent has
------------------------
been duly executed by such of the parties to the Credit Agreement as the
terms of the Credit Agreement require for the effectiveness of such consent
and the use of proceeds by the Company as described in the Prospectus
Supplement under the caption "Use of Proceeds".
(xxix) APW Debt Instruments. The Company is not obligated, directly
--------------------
or indirectly, as obligor, joint obligor, guarantor, surety or otherwise,
on or with respect to, and has not provided any keepwell or other form of
credit support in respect of, any debt of APW Ltd. ("APW") or any of APW's
subsidiaries, whether under any credit or loan agreement, contract,
indenture, mortgage or other agreement or instrument or otherwise.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price per share set forth in Schedule B, the number of Initial Securities
set forth in Schedule A opposite the name of such Underwriter, plus any
additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase up to an additional 450,000 shares of Common Stock
at the price per share set forth in Schedule B, less an amount per share equal
to any dividends or distributions declared by the Company and payable on the
Initial Securities but not payable on the Option Securities. The option hereby
granted will expire 30 days after the date hereof and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Securities upon notice by the Representatives to the Company setting
forth the number of Option Securities as to which the several Underwriters are
then exercising the option and the time and date of payment and delivery for
such Option Securities. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the Representatives, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of Option Securities then being purchased which the
12
number of Initial Securities set forth in Schedule A opposite the name of such
Underwriter bears to the total number of Initial Securities, subject in each
case to such adjustments as the Representatives in their discretion shall make
to eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Sidley
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
or at such other place as shall be agreed upon by the Representatives and the
Company, at 10:00 A.M. (Eastern time) on February 13, 2002 (unless postponed in
accordance with the provisions of Section 10), or such other time not later than
ten business days after such date as shall be agreed upon by the Representatives
and the Company (such time and date of payment and delivery being herein called
"Closing Time" or "Closing Date").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Company, on each Date of Delivery as specified in the notice from the
Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. First Union, individually and not as a Representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
------------------------
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will notify the Representatives
immediately, and confirm the notice in writing, (i) when any Rule 462(b)
Registration Statement or any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus or
any amended Prospectus shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (iv) of the issuance
by the Commission of
13
any stop order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus, or of
the suspension of the qualification of the Securities for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceedings for any
of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus supplement and/or prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus supplement and/or prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Representatives notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)) or any amendment, supplement or
revision to the prospectus included in the Registration Statement at the time it
became effective, to any preliminary prospectus or to the Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Representatives and counsel for the Underwriters, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act, such number of copies
of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus
14
is required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters such number of copies of such amendment
or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the date
hereof; provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which it is not so qualified or
to subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the date
hereof.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus
Supplement under "Use of Proceeds" and, without limitation to the foregoing, the
Company will pay the principal, premium and accrued interest with respect to the
redemption of $70 million aggregate principal amount of the Company's 13% Senior
Subordinated Notes due 2009 only from the net proceeds received by it from the
sale of the Securities.
(i) Listing. The Company will use its best efforts to effect the listing
of the Securities on the NYSE.
(j) Restriction on Sale of Securities. The Company will not, without the
prior written consent of First Union, offer, sell, contract to sell, pledge,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant for the sale of, or otherwise issue,
transfer or dispose of (or enter into any swap or any other agreement or
transaction that is designed to, or might reasonably be expected to, result in
the issuance or disposition (whether by actual issuance or disposition or
15
effective economic issuance or disposition due to cash settlement or
otherwise) by the Company), directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the 1934 Act and the 1934 Act Regulations with
respect to, any shares of Common Stock or other Capital Stock (as
hereinafter defined) or any securities convertible into or exercisable or
exchangeable for Common Stock or other Capital Stock, or publicly announce
an intention to effect any such transaction, for a period beginning on and
including the date of this Agreement through and including the date which
is 90 days after the date of this Agreement; provided, however, that (A)
-------- -------
the Company may issue and sell Securities pursuant to this Agreement, (B)
the Company may issue and sell Common Stock and options to purchase Common
Stock pursuant to any employee or director stock option plans described in
the Prospectus, as such stock option plans are in effect on the date of
this Agreement, (C) the Company may issue Common Stock upon the exercise of
stock options outstanding on the date of this Agreement or issued after the
date of this Agreement pursuant to employee or director stock option plans
described in the Prospectus, as such stock option plans are in effect on
the date of this Agreement and (D) the Company may file with the Commission
registration statements on Form S-8 in respect of the shares referred to in
clauses (B) and (C) of this sentence. As used herein, the term "Capital
Stock" means any Class B Common Stock, Preferred Stock or other capital
stock of the Company.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
(l) Preparation of Prospectus Supplement. Immediately following the
execution of this Agreement, the Company will prepare the Prospectus
Supplement containing the public offering price and other selling terms of
the Securities, the plan of distribution thereof and such other information
as may be required by the 1933 Act or the 1933 Act Regulations or as the
Representatives and the Company may deem appropriate, and will file or
transmit for filing with the Commission, in accordance with Rule 424(b) of
the 1933 Act Regulations, copies of the Prospectus including such
Prospectus Supplement.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the fees and
disbursements of the counsel, accountants and other advisors to the Company, (v)
the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing
16
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection with the preparation of the Blue Sky Survey and any supplements
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus and of the Prospectus and any amendments or supplements
thereto, (vii) the preparation, printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any supplements thereto, (viii) the fees and
expenses of any transfer agent or registrar for the Securities, (ix) the filing
fees incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, any review by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Securities, (x) the fees and expenses incurred in connection with listing of the
Securities on the NYSE, and (xi) the reasonable disbursements of counsel to the
Underwriters in connection with the copying of closing documents.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time (or the applicable Date of Delivery, as the
case may be) no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of
the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. The Prospectus
shall have been filed or transmitted for filing with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations within the time period
prescribed by such Rule, and prior to Closing Time the Company shall have
provided evidence satisfactory to the Representatives of such timely filing
or transmittal.
(b) Opinion of Counsel for Company. At Closing Time, the
Representatives shall have received the opinion, dated as of Closing Time,
of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters, to the
effect set forth in Exhibit A hereto and to such further effect as counsel
to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the opinion, dated as of Closing Time,
of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters, with respect to this Agreement, the Registration Statement,
the Prospectus and such other matters as the Representatives may request.
In giving such opinion, such counsel may state that such opinion is limited
to matters arising under or governed by the laws of the State of New
17
York and the federal law of the United States. Such counsel may also
state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of
the Company and public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the Chairman, Chief
Executive Officer or President of the Company and of the chief financial or
chief accounting officer of the Company, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties of the Company in Section 1(a) hereof are
true and correct at and as of the Closing Time with the same force and
effect as though expressly made at and as of Closing Time, (iii) the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied under this Agreement at or prior to
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending or, to their knowledge, contemplated by
the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from
PricewaterhouseCoopers LLP a letter, dated the date of this Agreement and
in form and substance satisfactory to the Representatives, together with
signed or reproduced copies of such letter for each of the other
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information of the Company
contained in the Registration Statement, the Prospectus and the documents
incorporated or deemed to be incorporated by reference therein.
(f) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from PricewaterhouseCoopers LLP a letter, dated as of
Closing Time and in form and substance satisfactory to the Representatives,
to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that the
specified date referred to shall be a date not more than three business
days prior to Closing Time.
(g) Approval of Listing. At Closing Time and each Date of Delivery, if
any, the Securities to be purchased by the Underwriters at such time shall
have been approved for listing on the NYSE, subject only to official notice
of issuance.
(h) Lock-up Agreements. Prior to the date of this Agreement, the
Representatives shall have received an agreement substantially in the form
of Exhibit B hereto signed by each of the persons listed in Schedule D
hereto.
(i) Credit Agreement Consent. Prior to the date of this Agreement, the
Credit Agreement Consent shall have been duly executed by such of the
parties to the Credit Agreement as the terms of the Credit Agreement
require for the effectiveness of the Credit Agreement Consent and, at the
date of this Agreement and at the Closing Time, the Credit Agreement
Consent shall be effective and in full force and effect and
18
shall be satisfactory in form and substance to counsel for the
Underwriters, and the Representatives shall have received a true, correct
and complete copy of the Credit Agreement Consent.
(j) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations
and warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any subsidiary of the Company
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Representatives shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
---------------------
Delivery, of the Chairman, Chief Executive Officer or President of the
Company and of the chief financial or chief accounting officer of the
Company confirming that the certificate delivered at the Closing Time
pursuant to Section 5(d) hereof remains true and correct as of such
Date of Delivery.
(ii) Opinion of Counsel for Company. The opinion of ▇▇▇▇▇▇▇ &
------------------------------
▇▇▇▇▇ LLP, counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, dated such Date of Delivery, relating
to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the respective opinion required by
Section 5(b) hereof.
(iii) Opinion of Counsel for Underwriters. The opinion of Sidley
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, dated such Date
of Delivery, to the same effect as the opinion required by Section
5(c) hereof and covering such other matters as the Representatives may
request.
(iv) Bring-down Comfort Letter. A letter from PricewaterhouseCoopers
-------------------------
LLP, in form and substance satisfactory to the Representatives and
dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the Representatives pursuant to
Section 5(f) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than
three business days prior to such Date of Delivery.
(k) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to render their legal opinion as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions, contained in this Agreement;
and all proceedings taken by the Company in connection with the issuance
and sale of the Securities as herein contemplated and in connection with
the other transactions contemplated by this Agreement shall be satisfactory
in form and substance to the Representatives and counsel for the
Underwriters.
(l) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of Option
Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the
Company at any time at or prior to Closing Time or such Date of Delivery,
as the case may be, and such termination shall be without liability of any
party to any other party
19
except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto) or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by First Union),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through First Union expressly for use in the Registration Statement
(or any amendment thereto) or in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto); and provided, further, that this
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, liabilities, claims, damages or expenses purchased Securities, or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any such amendments
or supplements thereto, but excluding documents incorporated or deemed to be
incorporated by reference therein) was not sent or given by or on behalf of such
Underwriter to such person, if such is required by law, at or prior to the
written confirmation of the sale of such Securities to such person and if the
Prospectus (as so amended or supplemented, if applicable) would have corrected
the defect giving rise to such loss, liability, claim, damage or expense, except
that this proviso shall not be applicable if such defect shall have been
corrected in a
20
document which is incorporated or deemed to be incorporated by
reference in the Prospectus.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section 6, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through First
Union expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by First Union, and, in the
case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties 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 parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. 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 that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) 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
21
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
------------
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) 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 on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth on the cover of the Prospectus
Supplement, bear to the aggregate initial public offering price of the
Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, 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 any 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
22
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or in the Nasdaq Stock Market's National Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements
23
within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of Securities to be purchased on such date, this Agreement or, with respect
to any Date of Delivery which occurs after the Closing Time, the obligation
of the Underwriters to purchase and of the Company to sell the Option
Securities to be purchased and sold on such Date of Delivery, shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either the Representatives or the Company shall have the
right to postpone Closing Time or the relevant Date of Delivery, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at c/o First Union
Securities, Inc., ▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; and notices to the Company shall be
directed to it at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention
of Chief Financial Officer.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and
-------
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
----------------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein and
------------------
the Table of Contents are for convenience only and shall not affect the
construction hereof.
[Signature Page Follows]
24
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
ACTUANT CORPORATION
By
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
FIRST UNION SECURITIES, INC.
ABN AMRO ROTHSCHILD LLC
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO. INCORPORATED
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By: FIRST UNION SECURITIES, INC.
By
Authorized Signatory
For themselves and as Representatives of the other several Underwriters named in
Schedule A hereto.
25
SCHEDULE A
Name of Underwriter Number of
------------------- Initial
Securities
----------
FIRST UNION SECURITIES, INC. 1,650,000
ABN AMRO ROTHSCHILD LLC 450,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO. INCORPORATED 450,000
BEAR, ▇▇▇▇▇▇▇ & CO. INC. 450,000
Total 3,000,000
=========
Sch A-1
SCHEDULE B
Actuant Corporation
3,000,000 Shares of Class A Common Stock
(Par Value $.20 Per Share)
1. The initial public offering price per share for the Securities shall
be $30.50.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $28.90, being an amount equal to the initial
public offering price set forth above less $1.60 per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the over-allotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial Securities but not payable on the Option Securities.
Sch B-1
SCHEDULE C
Subject Subsidiaries
The term "Subject Subsidiaries" means the following entiities:
NAME OF SUBJECT SUBSIDIARY STATE OF INCORPORATION TYPE OF ENTITY
-------------------------- ---------------------- --------------
Del City Wire Co., Inc. Oklahoma Corporation
GB Tools and Supplies, Inc. Wisconsin Corporation
Versa Technologies, Inc. Delaware Corporation
Sch C-1
SCHEDULE D
List of Persons Subject to Lock-up
Executive Officers and Directors
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III
H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ H.P. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Sch D-1
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
February __, 2002
First Union Securities, Inc.
ABN AMRO Rothschild LLC
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
As Representatives of the Several
Underwriters Named in the
Underwriting Agreement Referred
to Below
c/o First Union Securities, Inc.
▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Actuant Corporation
3,000,000 Shares of Class A Common Stock, $0.20 par value per share
Ladies and Gentlemen:
We have acted as counsel for Actuant Corporation, a Wisconsin corporation
(the "Company"), in connection with the purchase on this date by the
Underwriters (as defined below) of 3,000,000 shares of Class A Common Stock,
$0.20 par value per share (the "Common Stock"), of the Company (the
"Securities") pursuant to the Underwriting Agreement dated February 7, 2002 (the
"Underwriting Agreement"), between the Company and you, as representatives of
the several underwriters named in Schedule A thereto (the "Underwriters"). All
capitalized terms used but not defined herein have the respective meanings
ascribed thereto in the Underwriting Agreement.
In such capacity, we have examined copies of the Company's registration
statement on Form S-3 (Registration No. 333-47493) and the amendments thereto
filed to register the public offering and sale of the Securities and such other
securities as may be offered from time to time in accordance with Rule 415
promulgated by the Securities and Exchange Commission (the "Commission") under
the 1933 Act and 1933 Act Regulations, which registration statement was filed by
the Company with the Commission on March 6, 1998. Such registration statement,
as amended, in the form in which it was declared effective by the Commission
under the 1933 Act, including the form of prospectus contained therein, the
financial statements, exhibits and schedules thereto and the documents
incorporated or deemed to be incorporated by reference therein, is called the
"Registration Statement." We have also examined copies of the Company's
prospectus supplement dated February 7, 2002 relating to the Securities and the
related prospectus
A-1
dated January 27, 1999 (collectively, together with the documents incorporated
or deemed to be incorporated by reference in such prospectus supplement or
prospectus, the "Prospectus"). We have also examined the Underwriting Agreement
and the originals, or copies identified to our satisfaction, of such corporate
records of the Company and such other agreements and instruments and
certificates of public officials or officers of the Company as we have deemed
necessary as a basis for the opinions expressed below. In all such examinations,
we have assumed the genuineness of all signatures, the authenticity of all
documents, certificates and instruments submitted to us as originals and the
conformity with the originals of all documents submitted to us as copies. In
rendering the opinions expressed below, we relied upon certificates of the
Company given by certain of its officers as to certain factual matters and on
certificates of public officials. We believe we are justified in relying upon
such certificates.
Based upon the foregoing, we are of the opinion that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in active status under the laws of the State of Wisconsin.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Underwriting
Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact
business and is in good standing (or equivalent status) in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) Each Subject Subsidiary is validly existing as a corporation in
good standing (or equivalent status) under the laws of the jurisdiction of its
incorporation, and has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus.
Except as otherwise disclosed in the Prospectus, all of the issued and
outstanding shares of capital stock of each Subject Subsidiary have been duly
authorized and validly issued, are fully paid and (except as otherwise provided
in Section 180.0622(2)(b) of the WBCL, as judicially interpreted) non-assessable
and, to our knowledge, are owned by the Company, directly or through
subsidiaries, free and clear, except for the pledge of the capital stock of
certain subsidiaries to secure borrowings and obligations under the Credit
Agreement as described in the Prospectus, of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity. None of the outstanding shares of
capital stock of any Subject Subsidiary was issued in violation of any
preemptive or similar rights of any securityholder of such Subject Subsidiary
arising under the law of the jurisdiction of its incorporation or the articles
of incorporation or bylaws of such Subject Subsidiary or, to our knowledge,
under any agreement or instrument to which the Company or such Subject
Subsidiary is a party or by which any of them is bound.
(v) The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus in the column entitled "Actual" under the
caption "Capitalization" (except for subsequent issuances, if any, pursuant to
the Underwriting Agreement, pursuant to
A-2
employee or director stock plans referred to in the Prospectus or pursuant to
the exercise of stock options referred to in the Prospectus), and the shares of
issued and outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and (except as otherwise provided in
Section 180.0622(2)(b) of the WBCL, as judicially interpreted) non-assessable.
None of the outstanding shares of capital stock of the Company was issued in
violation of any preemptive or similar rights of any securityholder of the
Company arising under the WBCL or the articles of incorporation or bylaws of the
Company or, to our knowledge, under any agreement or instrument to which the
Company or any of its subsidiaries is a party or by which any of them is bound.
(vi) The Securities have been duly authorized for issuance and sale to
the Underwriters pursuant to the Underwriting Agreement and, when issued and
delivered by the Company pursuant to the Underwriting Agreement against payment
of the consideration set forth in the Underwriting Agreement, will be validly
issued, fully paid and (except as otherwise provided in Section 180.0622(2)(b)
of the WBCL, as judicially interpreted) non-assessable. Except as otherwise
provided in Section 180.0622(2)(b) of the WBCL, as judicially interpreted, no
holder of the Securities is or will be subject to personal liability by reason
of being such a holder under the articles of incorporation or bylaws of the
Company, the WBCL or, to our knowledge, otherwise.
(vi) The issuance of the Securities is not subject to any preemptive or
similar rights of any securityholder of the Company.
(viii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(ix) The Registration Statement has been declared effective under the
1933 Act; the Prospectus has been filed pursuant to Rule 424(b) in the manner
and within the time period required by Rule 424(b); and, to our knowledge, no
stop order suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission.
(x) The Registration Statement and the Prospectus, in each case
excluding the documents incorporated or deemed to be incorporated by reference
therein, as of their respective effective or issue dates (other than the
financial statements and supporting schedules and other financial data included
therein or omitted therefrom, as to which we express no opinion), complied as to
form in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
(xi) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus (other than the
financial statements and supporting schedules and other financial data included
therein or omitted therefrom, as to which we express no opinion), when they were
filed with the Commission, complied as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations.
(xii) The form of certificate used to evidence the Common Stock complies
in all
A-3
material respects with all applicable requirements of the WBCL, with any
applicable requirements of the articles of incorporation and bylaws of the
Company and with any applicable requirements of the New York Stock Exchange.
(xiii) To our knowledge, except as otherwise disclosed in the Registration
Statement and the Prospectus, there is not pending or threatened any action,
suit, proceeding, inquiry or investigation to which the Company or any
subsidiary is a party, or to which the property of the Company or any subsidiary
is subject, before or brought by any court or governmental agency or body,
domestic or foreign, that would reasonably be expected to result in a Material
Adverse Effect or that could materially and adversely affect the consummation of
the transactions contemplated in the Underwriting Agreement or the performance
by the Company of its obligations thereunder.
(xiv) The information in the Prospectus under the headings "Risk
Factors--We may be subject to substantial liabilities if APW Ltd. is unable to
meet its obligations as they come due."; "Risk Factors--Environmental laws and
regulations may result in additional costs."; "Risk Factors--We could be
adversely affected if the Spin-off or the related corporate restructuring
transactions and debt realignment are not valid under fraudulent transfer or
legal dividend statutes." "Risk Factors--Some provisions of our charter and
bylaws and of Wisconsin law may prevent a change in control or adversely affect
our shareholders."; "Risk Factors--Any issuance of preferred stock or Class B
Common Stock could adversely affect the holders of our common stock.";
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources--Debt"; "Business--Environmental
Matters"; "Business--Legal Proceedings"; and "Description of Capital Stock"; the
information in the Company's Annual Report on Form 10-K for its fiscal year
ended August 31, 2001 under the headings "Business--Environmental Matters";
"Legal Proceedings"; the information in the Company's proxy statement for its
annual meeting of shareholders held on January 4, 2002 under the captions
"Executive Compensation--Employment Agreement and Change in Control
Arrangements" and "Certain Relationships and Related Transactions" and the
information in the Registration Statement under Item 15; in each case to the
extent that such information constitutes matters of law, summaries of legal
matters, summaries of provisions of the Company's articles of incorporation or
bylaws or other instruments or agreements, summaries of legal proceedings, or
legal conclusions, has been reviewed by us and is correct in all material
respects.
(xv) To our knowledge, there are no statutes or regulations that are
required to be described in the Prospectus that are not described as required.
(xvi) All descriptions in the Prospectus of written contracts and other
documents to which the Company or any of the Subject Subsidiaries is a party are
accurate in all material respects; to our knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Prospectus or to be
filed as exhibits to the Registration Statement other than those described or
referred to in the Prospectus or filed or incorporated by reference as exhibits
to the Registration Statement, and the descriptions thereof and references
thereto are correct in all materials respects.
A-4
(xvii) To our knowledge, neither the Company nor any of the Subject
Subsidiaries is in violation of its articles of incorporation or bylaws; and to
our knowledge, no default by the Company or any domestic subsidiary exists in
the due performance or observance of any obligation, agreement, covenant or
condition contained in any material contract, indentures, mortgage, loan
agreement, note, lease or other agreement or instrument that is described in the
Registration Statement or the Prospectus or included or incorporated by
reference as an exhibit to the Registration Statement or any document
incorporated or deemed to be incorporated by reference therein and that could
reasonably be expected to result in a Material Adverse Effect.
(xviii) No consent, approval, authorization or order of, or filing with,
any governmental authority, agency or body or any court is required for the
offering, issuance, sale or delivery of the Securities as contemplated by the
Underwriting Agreement or for the consummation of any of the other transactions
contemplated by the Underwriting Agreement, except such as may be required under
state securities laws and except for such as have been obtained or made, as the
case may be, under the 1933 Act and the 1933 Act Regulations.
(xix) The execution, delivery and performance of the Underwriting
Agreement and the consummation of the transactions contemplated in the
Underwriting Agreement and in the Prospectus (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use of Proceeds") and compliance
by the Company with its obligations under the Underwriting Agreement, do not and
will not, whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment Event under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant to (A) the
instruments and agreements evidencing, constituting or relating to the Credit
Agreement (including, without limitation, the Credit Agreement and all
guarantees, pledge agreements and mortgages and security agreements entered into
in connection therewith), the Company's 13% Senior Subordinated Notes due 2009
(the "Notes"), the indenture pursuant to which such Notes were issued, the Loan
Agreement between Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A and
Power-Packer Europa B.V. (providing for a loan in Euros) or the Receivables
Purchase Agreement dated as of May 30, 2001 among Actuant Receivables
Corporation, the Company, Blue Ridge Asset Funding Corporation and Wachovia
Bank, N.A., in each case including any amendments or supplements thereto, or (B)
any other written contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument, known to us, to which
the Company or any subsidiary is a party or by which it or any of them is bound,
or to which any of the property or assets of the Company or any subsidiary is
subject (except, solely in the case of clause (B) above, for such conflicts,
breaches, Repayment Events or defaults or liens, charges or encumbrances that
would not have a Material Adverse Effect), nor will such action result in any
violation of the provisions of the Organizational Documents of the Company or
any Subject Subsidiary, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to us, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their respective properties, assets or
operations.
(xx) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Prospectus, will not be
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an "investment company" as defined in the 1940 Act.
(xxi) To our knowledge, there are no contracts, agreements or
understandings between the Company and any person granting such person the right
to require the Company to file a registration statement under the 1933 Act with
respect to any securities of the Company owned or to be owned by such person or
to require the Company to register such securities pursuant to the Registration
Statement or any other registration statement filed or to be filed by the
Company under the ▇▇▇▇ ▇▇▇.
(xxii) The offering, issuance and sale of the Securities as contemplated
by the Underwriting Agreement and Prospectus and the consummation of the other
transactions contemplated by the Underwriting Agreement: (a) are not a "business
combination" within the meaning of Section 180.1130 (3) of the WBCL or a
"take-over offer" within the meaning of Section 180.1130 (13) of the WBCL, and
therefore are not subject to Sections 180.1130 to 180.1134 of the WBCL; (b) are
not a "business combination" within the meaning of Section 180.1140 of the WBCL,
and therefore are not subject to Sections 180.1140 to 180.1144 of the WBCL; and
(c) although the Company and its stock are subject to Section 180.1150 of the
WBCL, the Securities purchased by the Underwriters pursuant to the Underwriting
Agreement are, and the Securities purchased by investors from the Underwriters
in connection with the offering contemplated by the Underwriting Agreement
should be, excluded from the application of Section 180.1150 by Section
180.1150(3)(f) of the WBCL. We note that none of these statutes has been
construed in any reported decisions. We further note that Section 180.1150
limits the voting rights of a holder of Common Stock only if the holder owns
more than 20% of the outstanding shares of Common Stock.
We have not independently verified, and are not passing upon and do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
otherwise set forth in paragraph (xiv) and (xvi) above). We have, however,
participated in conferences with certain officers and employees of the Company,
with representatives of the Company's current independent auditors, and with
your representatives and your counsel at which the contents of the Registration
Statement and Prospectus (including the documents incorporated or deemed to be
incorporated by reference therein) were reviewed and discussed. On the basis of
this review and these discussions and our participation in the preparation of
the Registration Statement and the Prospectus (in each case including the
documents incorporated or deemed to be incorporated by reference therein),
nothing has come to our attention which has led us to believe that the
Registration Statement (other than financial statements and schedules and other
financial and statistical data contained therein, as to which we express no
comment), at the time the Registration Statement became effective or at any time
subsequent thereto up to and including the date of this opinion, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (other than financial statements
and schedules and other financial and statistical data contained therein, as to
which we express no comment), as of the time that the Prospectus was issued or
on the date of this opinion, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein,
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in the light of the circumstances under which they were made, not misleading.
For purposes of this opinion, "knowledge" means the knowledge of the
attorneys of our firm working on this matter for our client, including those who
have participated in discussions with the Representatives or counsel for the
Underwriters, and also includes ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III.
Members of this firm providing services to the Company own Common Stock.
We express no opinion on the laws of any jurisdiction other than the
federal laws of the United States, the Delaware General Corporation Law and the
laws of the State of Wisconsin. Where any opinion rendered hereby relates to the
law of another state or another country, we have assumed with your permission
that the substantive law of such other state or country is identical to the
substantive law of Wisconsin (provided, however, we express no opinion as to
which jurisdiction's substantive law governs).
This opinion is being delivered to you at the request of the Company under
Section 5(b) of the Underwriting Agreement and is intended solely for the
benefit of the Underwriters and the Representatives and it is not to be quoted,
filed with any governmental authority or used for any other purpose without our
prior written consent.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III, a member of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, serves as Secretary
of the Company.
Very truly yours,
▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
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EXHIBIT B
[Form of Lock-Up Agreement]
Actuant Corporation
Public Offering of Common Stock
__________, 2002
First Union Securities, Inc.
As Representative of the several Underwriters
▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement") between Actuant
Corporation, a Wisconsin corporation (the "Company"), and you, as representative
or one of the representatives of a group of underwriters (the "Underwriters") to
be named therein, relating to an underwritten public offering of Class A Common
Stock, par value $0.20 per share (the "Common Stock"), of the Company.
In recognition of the benefit that such an offering will confer upon the
undersigned, as a stockholder and an executive officer and/or director of the
Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce you and the
other Underwriters to enter into the Underwriting Agreement, the undersigned
agrees that the undersigned will not, without the prior written consent of First
Union Securities, Inc., offer, sell, contract to sell, pledge, sell any option
or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant for the sale of, or otherwise transfer or dispose of
(or enter into any swap or any other agreement or transaction that is designed
to, or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned), directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the Securities and
Exchange Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Securities and Exchange Commission promulgated thereunder
with respect to, any shares of Common Stock or any securities convertible into
or exercisable or exchangeable for Common Stock, whether now owned or hereafter
acquired by the undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition, or publicly
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announce an intention to effect any such transaction, for a period beginning on
and including the date of the Underwriting Agreement through and including the
date which is 90 days after the date of the Underwriting Agreement (the "Lock-up
Period"); provided, however, that nothing contained herein shall prohibit the
exercise of stock options by the undersigned under the Company's stock option
plans for employees or directors as such stock option plans are in effect on the
date of the Underwriting Agreement, or any transfer to the Company of shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock in payment of all or any portion of the exercise price of any
such stock options exercised by the undersigned under any such stock option
plans as such stock option plans are in effect on the date of the Underwriting
Agreement; and provided, further, that the undersigned may donate any shares of
Common Stock of the Company or any securities convertible into or exercisable or
exchangeable for Common Stock to members of the undersigned's immediate family,
to a trust the beneficiaries of which are exclusively the undersigned or members
of the undersigned's immediate family, or to charitable or educational
organizations without the prior written consent of First Union Securities, Inc.
if (i) such donation is a bona fide gift, (ii) the undersigned provides written
notice of such gift to First Union Securities, Inc. no later than three business
days prior to such gift, and (iii) the donee executes and delivers to First
Union Securities, Inc., prior to or contemporaneously with such gift, a letter
agreement, in form and substance reasonably satisfactory to First Union
Securities, Inc., in substantially the form of this letter agreement. For
purposes of this paragraph, "immediate family" shall mean a spouse, lineal
descendent, father, mother, brother or sister of the transferor.
Notwithstanding the foregoing, any sale or sales of shares of Common Stock
made by the undersigned shall not be subject to the restrictions described
above, if such sale or sales of shares of Common Stock by the undersigned do not
exceed an aggregate of 1,000 shares of Common Stock during the Lock-up Period.
If for any reason the Underwriting Agreement shall be terminated prior to
the Closing Time (as defined in the Underwriting Agreement), the agreement set
forth above shall likewise be terminated.
[Signature Page Immediately Follows]
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In witness whereof, the undersigned has executed and delivered this letter
agreement as of the day and year set forth above.
Yours very truly,
Print Name:
B-3