OMNIQUIP INTERNATIONAL, INC.
Common Stock
($0.01 Par Value Per Share)
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT made this 20th day of March, 1997, by and
among Omniquip International, Inc., a Delaware corporation (the "Company"), and
Harbour Group Investments III, L.P., a Delaware limited partnership, and
Uniquip-HGI Associates, L.P., a Delaware limited partnership (collectively, the
"Selling Stockholders").
WHEREAS, the Company has filed with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Act of 1933, as amended (the
"Act"), a Registration Statement (as finally declared effective, the
"Registration Statement") on Form S-1 (File No. 333-13181) pursuant to which the
Company and the Selling Stockholders propose to sell to the public an aggregate
of 8,000,000 shares of the Company's Common Stock through several underwriters
led by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, CS First Boston Corporation, ▇▇▇▇▇▇▇▇
Wertheim & Co. Incorporated and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated and certain
of their respective affiliates (collectively the "Underwriters"), in connection
with an offering pursuant to an underwriting agreement (the "Underwriting
Agreement") to be entered into by the Company, the Selling Stockholders and the
Underwriters. In addition, the Selling Stockholders propose to grant the
Underwriters an option to purchase up to an additional 1,200,000 shares of the
Company's Common Stock solely to cover over-allotments.
WHEREAS, the Underwriting Agreement contains certain provisions with
respect to the obligations and liabilities between the Company and the Selling
Stockholders on the one hand and the Underwriters on the other.
WHEREAS, the Underwriters require the Selling Stockholders to agree to
indemnify the Company and the Underwriters for certain liabilities.
WHEREAS, that certain Letter Agreement dated September 30, 1996 (the
"Registration Rights Agreement") between the Company and the Selling
Stockholders requires the Company and the Selling Stockholders to indemnify each
other for certain liabilities.
WHEREAS, the Company and the Selling Stockholders desire to set forth the
obligations and liabilities between and among each other arising out of their
respective obligations and liabilities under the Underwriting Agreement and the
Registration Rights Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. The Company agrees to indemnify and hold harmless the Selling
Stockholders and each person, if any, who controls each Selling Stockholder
within the meaning of the Act or the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), against any losses, claims, damages or liabilities, joint
or several, to which any such person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the forms of prospectus first filed with the Commission pursuant to
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and in accordance with Rule 424(b) under the Act or (if no such filing is
required) the prospectus contained in the Registration Statement, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading; and the Company will reimburse each Selling Stockholder
and each such controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Selling Stockholder or any
controlling person thereof specifically for use therein; and provided further
that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus, the indemnity
agreement contained in this Section 1 shall not inure to the benefit of any
entity or firm or any controlling person thereof from whom the person asserting
such losses, claims, damages or liabilities purchased the shares of Common Stock
concerned, to the extent that any such loss, claim, damage or liability of such
entity, firm or controlling person results from the fact that there was not sent
or given to such person, at or prior to the written confirmation of the sale of
such shares of Common Stock to such person, a copy of the Prospectus, if
required by the Act.
2. Each Selling Stockholder agrees, severally and not jointly, to indemnify
and hold harmless the Company, each of its directors, each of its officers who
have signed the Registration Statement and each person, if any, who controls the
Company within the meaning of the Act or the Exchange Act against any losses,
claims, damages or liabilities,
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joint or several, to which any such person may become subject, under the Act or
otherwise insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue or alleged untrue
statement of any material fact contained in the Registration Statement, the
forms of prospectus first filed with the Commission pursuant to and in
accordance with Rule 424(b) under the Act or (if no such filing is required) the
prospectus contained in the Registration Statement, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements therein not
misleading; in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by the Selling Stockholder specifically for use therein; and the Selling
Stockholder will reimburse any legal and other expenses reasonably incurred by
the Company, any such director, officer or controlling person thereof in
connection with investigating or defending any such loss, claim, damage or
liability or action as such expenses are incurred; provided, however, that with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus, the indemnity agreement contained
in this Section 2 shall not inure to the benefit of any entity or firm or any
controlling person thereof from whom the person asserting such losses, claims,
damages or liabilities purchased the shares of Common Stock concerned, to the
extent that any such loss, claim, damage or liability of such entity, firm or
controlling person results from the fact that there was not sent or given to
such person, at or prior to the written confirmation of the sale of such shares
of Common Stock to such person, a copy of the Prospectus, if required by the
Act.
3. Promptly after receipt by an indemnified party under this Agreement of
notice of the commencement of any action, such indemnified party will, if a
claim in respect
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thereof is to be made against any indemnifying party under this Agreement,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from liability which it may
have to any indemnified party pursuant to Sections 1 or 2 of this Agreement,
except to the extent that it was unaware of such action and has been materially
prejudiced by such failure, or from any liability which it may have to any
indemnified party otherwise than pursuant to Sections 1 and 2 of this Agreement.
In case any such action is brought against any indemnified party and it notifies
an indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and, to the extent the indemnifying party
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. In no event shall the indemnifying party be liable for
the fees and expenses of more than one counsel (in addition to any local
counsel) for all such indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same set of allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
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4. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under Sections 1 or 2 above,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of the losses, claims, damages or liabilities
referred to in Section 1 or 2 above (i) in such proportion as is appropriate to
reflect the relative benefits received by the indemnifying party on the one hand
and the indemnified party on the other from the offering of the Common Stock or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party on the one hand and the indemnified party on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the indemnifying party on the
one hand and the indemnified party on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the indemnifying party and the indemnified party. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omissions or alleged omission to state a material fact relates to
information supplied by the indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by any
party as a result of the losses, claims, damages, or liabilities referred to in
the first sentence of this Section shall be deemed to include any legal or other
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim which is the subject of this Section. No person
guilty of fraudulent misrepresentation (within the meaning of
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Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
5. The obligations of the Company and the Selling Stockholders under this
Agreement shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have.
6. It is agreed that any controversy arising out of the operation of the
interim reimbursement arrangements set forth herein, including the amounts of
any requested reimbursement payments and the method of determining such amounts,
shall be settled by arbitration conducted under the provisions of the
Constitution and Rules of the Board of Governors of the New York Stock Exchange,
Inc. or pursuant to the Code of Arbitration Procedure of the NASD or, if any
such arbitration procedure is unavailable, pursuant to the rules of the American
Arbitration Association. Any such arbitration must be commenced by service of a
written demand for arbitration or written notice of intention to arbitrate,
therein electing the arbitration tribunal. In the event the party demanding
arbitration does not make such designation of an arbitration tribunal in such
demand or notice, then the party responding to said demand or notice is
authorized to do so. Such an arbitration would be limited to the operation of
the interim reimbursement provisions contained in Section 3 hereof and would not
resolve the ultimate propriety or enforceability of the obligation to reimburse
expenses which is created by the provisions of such Section 3 hereof.
7. In the event the Company and the Selling Stockholders shall be liable to
reimburse the Underwriters for out-of-pocket expenses incurred by the
Underwriters as a consequence of the refusal, failure or inability by the
Company or any Selling Stockholder to perform any undertaking or obligation
required to be performed by the Underwriting Agreement, the Company and each of
the Selling Stockholders agree that the person who
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fails to perform its respective obligations shall be liable to the party who has
not defaulted in its obligations under the Underwriting Agreement for all
amounts required to be paid by the Company and the Selling Stockholders pursuant
to the Underwriting Agreement.
8. Any notice, claim or demand hereunder shall be made in writing and shall
be sufficient if given as provided in the Underwriting Agreement.
9. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors
and assigns.
10. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York, without regard to such jurisdiction's
conflicts of laws principles.
11. This Agreement may be executed by one or more parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
of which shall be deemed to be one and the same instrument.
12. Except as otherwise specifically defined herein, all capitalized terms
used in this Agreement shall have the meanings assigned such terms in the
Underwriting Agreement.
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IN WITNESS WHEREOF, the parties below have caused the foregoing to be
executed on their behalf this 20th day of March, 1997.
OMNIQUIP INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President - Finance and
Chief Financial Officer
HARBOUR GROUP INVESTMENTS III, L.P.
By: HARBOUR GROUP III MANAGEMENT
CO., L.P., General Partner
By: HGM III CO., General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice Chairman & Secretary
UNIQUIP-HGI ASSOCIATES, L.P.
By: HARBOUR GROUP INDUSTRIES, INC.
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Asst. Secretary
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