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EXHIBIT 3
STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of
May 10, 1999, is by and among JLG Industries, Inc., a Pennsylvania corporation
("Parent"), JLG Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Parent ("Merger Subsidiary"), Gradall Industries, Inc., a Delaware
corporation (the "Company"), and the stockholders identified on the signature
page hereof (the "Stockholders").
W I T N E S S E T H :
WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent, Merger Subsidiary and the Company have entered into an
Agreement and Plan of Merger (as such agreement may hereafter be amended from
time to time, (the "Merger Agreement"), pursuant to which Merger Subsidiary will
be merged with and into the Company (the "Merger");
WHEREAS, in accordance with the Merger Agreement, Merger
Subsidiary shall commence an Offer (as defined in the Merger Agreement) to
purchase all outstanding shares, together with associated rights to purchase
Series B Participating Cumulative Preferred Stock, of Common Stock (as defined
in Section 1 hereof) of the Company, including all of the Shares (as defined in
Section 2 hereof) beneficially owned by the Stockholders; and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Parent has required that the Stockholders and the Company
agree, and the Stockholders and the Company have agreed, to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual representations, warranties, covenants and agreements contained herein,
the parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "Adverse Proposal" shall mean any (1) proposal or action
that would reasonably be expected to result in a breach of any
covenant, representation or warranty of Company set forth in the Merger
Agreement, or (2) the following actions (other than the Offer, the
Merger and the other transactions contemplated by the Merger
Agreement), (i) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the
Company or its Subsidiaries; (ii) a sale, lease or transfer of a
material amount of assets of the Company or one of its Subsidiaries, or
a reorganization, recapitalization, dissolution or liquidation of the
Company or any of its Subsidiaries; (iii) (A) any change in a majority
of the persons who constitute the board of directors of the Company as
of the date hereof-, (B) any change in the present capitalization of
the Company or any amendment of the Company's certificate of
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incorporation or bylaws, as amended to date; (C) any other material
change in the Company's or any of its Subsidiaries' corporate structure
or business; or (D) any other action that is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone, or
adversely affect the Merger and the other transactions contemplated by
this Agreement and the Merger Agreement.
(b) "Beneficially Own" or "Beneficial Ownership" with respect
to any securities shall mean having "beneficial ownership" of such
securities (as determined pursuant to Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including
pursuant to any agreement, arrangement or understanding, whether or not
in writing. Without duplicative counting of the same securities by the
same holder, securities Beneficially Owned by a Person shall include
securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" as within the meaning of Section
13(d)(3) of the Exchange Act.
(c) "Common Stock" shall mean the Common Stock, $.001 par
value, of the Company.
(d) "Person" shall mean an individual, corporation,
partnership, limited liability company, joint venture, association,
trust, unincorporated organization or other entity.
(e) "Termination Date" shall mean the earlier of (i) the date
of termination of the Merger Agreement by the Company pursuant to
7.01(b) thereof, and (ii) the date of the expiration or termination of
the Offer.
(f) Capital terms used and not defined herein have the
respective meanings ascribed to them in the Merger Agreement.
2. TENDER OF SHARES.
2.1 TENDER. In order to induce Parent and Merger Subsidiary to enter
into the Merger Agreement, the Stockholders hereby agrees to validly tender (or
cause the record owner of such shares to validly tender), and not to withdraw,
pursuant to and in accordance with the terms of the Offer, not later than the
fifteenth business day after commencement of the Offer pursuant to the Merger
Agreement and Rule l4d-2 under the Exchange Act, the number of shares of Common
Stock set forth opposite each such Stockholder's name on Schedule A hereto (the
"Existing Shares"), all of which are Beneficially Owned by such Stockholder, and
any shares of Common Stock acquired by such Stockholder in any capacity after
the date hereof and prior to the termination of this Agreement by means of
purchase, exercise of any option, dividend, distribution or in any other way
(such shares of Common Stock, together with the Existing Shares, the "Shares").
Each of the Stockholders hereby acknowledges and agrees that Parent's and Merger
Subsidiary's obligation to accept for payment and pay for the Shares in the
Offer,
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including the Shares Beneficially Owned by such Stockholder, is subject to the
terms and conditions of the Offer.
2.2 DISCLOSURE. Each of the Stockholders hereby permits Parent and
Merger Subsidiary to publish and disclose in the Offer Documents and, if
approval of the Company's stockholders is required under applicable law, in the
Proxy Statement or Information Statement (including all documents and schedules
filed with the Securities and Exchange Commission) its identity and ownership of
the Shares and the nature of its commitments, arrangements and understandings
under this Agreement.
3. AGREEMENT TO VOTE SHARES.
During the term of this Agreement, at any meeting of the stockholders
of the Company called to consider and vote upon the adoption of the Merger
Agreement (and at any and all postponements and adjournments thereof), and in
connection with any action to be taken in respect of the adoption of the Merger
Agreement by written consent of stockholders of the Company, each Stockholder
will vote or cause to be voted (including by written consent, if applicable) all
of such Stockholder's Shares in favor of the adoption of the Merger Agreement
and in favor of any other matter necessary or appropriate for the consummation
of the transactions contemplated by the Merger Agreement which is considered and
voted upon at any such meeting or made the subject of any such written consent,
as applicable. During the term of this Agreement, at any meeting of the
stockholders of the Company called to consider and vote upon any Adverse
Proposal (and at any and all postponements and adjournments thereof), and in
connection with any action to be taken in respect of any Adverse Proposal by
written consent of stockholders of Company, each Stockholder will vote or cause
to be voted (including by written consent, if applicable) all of such
Stockholder's Shares against the adoption of such Adverse Proposal.
4. IRREVOCABLE PROXY.
Each Stockholder hereby irrevocably appoints Merger Subsidiary or any
designee of Merger Subsidiary the lawful agent, attorney and proxy of such
Stockholder, during the term of this Agreement, at any meeting of the
stockholders of the Company, however called, or in connection with any written
consent of the stockholders of the Company, to vote (or cause to be voted) the
Stockholder's Shares (a) in favor of the Merger, the execution and delivery by
the Company of the Merger Agreement and the approval of the terms thereof and
each of the other actions contemplated by the Merger Agreement, this Agreement
and any actions required in furtherance hereof and thereof and (b) against
adoption of any Adverse Proposal. Each Stockholder intends this proxy to be
irrevocable and coupled with an interest and will take such further action or
execute such other instruments as may be necessary to effectuate the intent of
this proxy and hereby revokes any proxy previously granted by it with respect to
the Shares. Each Stockholder shall not hereafter, until the termination of this
Agreement, purport to vote (or
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execute a consent with respect to) such Shares (other than through this
irrevocable proxy) or grant any other proxy or power of attorney with respect to
any Shares, deposit any Shares into a voting trust or enter into any agreement
(other than this Agreement), arrangement or understanding with any Person,
directly or indirectly, to vote, grant any proxy or give instructions with
respect to the voting of such Shares.
5. REPRESENTATIONS AND WARRANTIES.
5.1 CERTAIN REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each
Stockholder, severally and not jointly, represents and warrants to Parent and
Merger Subsidiary, as of the date hereof and as of the acceptance for payment of
shares of Common Stock under the Offer, as follows:
(a) OWNERSHIP. Such Stockholder is the sole Beneficial Owner
of the number of shares of Common Stock set forth opposite such
Stockholder's name on Schedule A hereto. The Shares are now, and at all
times during the term hereof will be (except as provided in Section 6.2
hereof), held exclusively by such Stockholder, or by a nominee or
custodian for the exclusive benefit of such Stockholder, free and clear
of all liens, proxies, or other restrictions on disposition or voting,
except for any liens, proxies or restrictions, arising hereunder. The
tender by such Stockholder of its Shares to Merger Subsidiary or Parent
pursuant to the Offer will pass to Merger Subsidiary or Parent the
Stockholder's interest in the Shares free of any adverse claims under
Section 8-102(a)(1) of the Uniform Commercial Code. Except as set forth
in Schedule A hereto, such Stockholder does not (a) Beneficially Own
any securities of the Company on the date hereof or (b) directly or
indirectly, Beneficially Own or have any option, warrant or other right
to acquire any securities of the Company that are or may by their terms
become entitled to vote or any securities that are convertible or
exchangeable into or exercisable for any securities of the Company that
are or may by their terms become entitled to vote; nor is the
Stockholder subject to any contract, commitment, arrangement,
understanding or relationship (whether or not legally enforceable),
other than this Agreement, that allows or obligates such Stockholder to
vote, dispose of or acquire any securities of the Company.
(b) POWER AND AUTHORITY; EXECUTION AND DELIVERY. Such
Stockholder has all requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by such Stockholder and the
consummation by such Stockholder of the transactions contemplated
hereby have been duly authorized by all necessary action, if any, on
the part of such Stockholder. This Agreement has been duly executed and
delivered by such Stockholder and constitutes a valid and binding
obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms.
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(c) NO CONFLICTS. The execution and delivery of this Agreement
do not, and, subject to compliance with the HSR Act and appropriate
filings under securities laws (which each Stockholder agrees to make
promptly), to the extent applicable, the consummation of the
transactions contemplated hereby and compliance with the provisions
hereof will not, conflict with, result in a breach or violation of or
default (with or without notice or lapse of time or both) under, or
give rise to any material obligation, any right of termination, benefit
under, or require notice to or the consent of any person under any
agreement, instrument, undertaking, law, rule, regulation, judgment,
order, injunction, decree, determination or award binding on such
Stockholder, other than such conflicts, breaches, violations, defaults,
obligations, rights or losses that individually or in the aggregate
would not impair the ability of such Stockholder to perform such
Stockholder's obligations under this Agreement.
(d) BROKERS. Except as provided in the Merger Agreement, no
broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement or the Merger Agreement based upon
arrangements made by or on behalf of the Stockholder that is or will be
payable by the Company or any of its Subsidiaries.
5.2 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to Parent and Merger Subsidiary, as of the date hereof
and as of the acceptance for payment of Shares of Common Stock under the Offer,
as follows:
(a) ORGANIZATION; AUTHORITY. The Company is a corporation duly
organized and validly existing under the laws of the State of Delaware,
has the requisite corporate power and authority to execute and deliver
this Agreement and to perform its obligations hereunder and has taken
all necessary corporate action to authorize the execution; and delivery
of, and the performance of its obligations under, this Agreement.
(b) EXECUTION AND DELIVERY. This Agreement has been duly
executed and delivered by the Company and, assuming that this Agreement
constitutes the valid and binding obligation of the other parties
hereto, constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
(c) NO CONFLICTS. The execution and delivery of this Agreement
by the Company does not and, subject to compliance with the HSR Act and
appropriate filings under securities laws (which the Company agrees to
make promptly), to the extent applicable, the performance of its
obligations hereunder and compliance with the provisions hereof will
not, conflict with, result in a breach or violation of or default (with
or without notice or lapse of time or both) under, or give rise to any
material obligation, any right of termination, cancellation, or
acceleration of any obligation or any loss of a material benefit under,
or require notice to or the consent of any person under (i) its
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certificate of incorporation or bylaws, (ii) any agreement, instrument,
undertaking, law, rule, regulation, judgment, order, injunction,
decree, determination or award by which it is bound, or (iii) any
judgment, writ, decree, order or ruling applicable to the Company;
except in the case of clauses (ii) and (iii) for conflicts, violations,
breaches or defaults that would not impair the ability of the Company
to perform its obligations under this Agreement.
(d) ANTITAKEOVER STATUTES. The Company's Board of Directors
has approved the Offer, the Merger, the Merger Agreement, this
Agreement and the transactions contemplated thereby and hereby and such
approval is sufficient to render inapplicable to the Offer, the Merger,
the Merger Agreement, this Agreement and the transactions contemplated
thereby and hereby, the provisions of Section 203 of the Delaware
General Corporations Law (the "DGCL").
5.3 REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUBSIDIARY.
Each of Parent and Merger Subsidiary hereby represents and warrants, jointly and
severally, to the Company and the Stockholders, as of the date hereof and as of
the acceptance for payment of Shares of Common Stock under the Offer, that:
(a) ORGANIZATION; AUTHORITY. Each of Parent and Merger
Subsidiary is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation,
has the requisite corporate power and authority to execute and deliver
this Agreement and to perform its obligations hereunder, and has taken
all necessary corporate action to authorize the execution and delivery
of, and the performance of its obligations under, this Agreement.
(b) EXECUTION AND DELIVERY. This Agreement has been duly
executed and delivered by Parent and Merger Subsidiary and, assuming
that this Agreement constitutes the valid and binding obligation of the
other parties hereto, constitutes a valid and binding obligation of
Parent and Merger Subsidiary, enforceable against Parent and Merger
Subsidiary in accordance with its terms.
(c) NO CONFLICTS. The execution and delivery of this Agreement
by Parent and Merger Subsidiary do not, and, subject to compliance with
the HSR Act and appropriate filings under securities laws (which Parent
and Merger Subsidiary agree to make it promptly), to the extent
applicable, the performance of its obligations hereunder and compliance
with the provisions hereof will not, conflict with, result in a breach
or violation of or default (with or without notice or lapse of time or
both) under, or give rise to any material obligation, any right of
termination, cancellation, or acceleration of any obligation or any
loss of a material benefit under, or require notice to or the consent
of any person under (i) its articles of incorporation or bylaws or
equivalent organizational documents, (ii) any agreement, instrument,
undertaking, law, rule, regulation, judgment,
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order, injunction, decree, determination or award by which it is bound,
or (iii) any judgment, writ, decree, order or ruling applicable to
Parent or Merger Subsidiary; except in the case of clauses (ii) and
(iii) for conflicts, violations, breaches or defaults that would not
impair the ability of Parent or Merger Subsidiary to perform its
obligations under this Agreement.
6. CERTAIN COVENANTS OF STOCKHOLDER. Each Stockholder hereby severally covenants
and agrees as follows:
6.1 NO SOLICITATION. Neither Stockholder nor any officer, director,
employee, representative or agent of the Stockholder shall, in that
Stockholder's capacity as such and not in such Stockholder's capacity as an
officer, director, employee, representative or agent of the Company, directly or
indirectly, solicit, initiate, or knowingly facilitate; participate in or
initiate any inquiries or the making of any proposal by any person or entity
(other than Merger Subsidiary, Parent or any affiliate of Parent) which
constitutes, or may reasonably be expected to lead to, (a) any sale of the
Shares or (b) any Adverse Proposal. If the Stockholder, or any officer,
director, employee, representative or agent of the Stockholder, receives an
inquiry or proposal with respect to the sale of Shares, then the Stockholder
shall promptly inform Parent of the terms and conditions, if any, of such
inquiry or proposal and the identity of the person making it. The Stockholder
shall cause its officers, directors, employees, representatives and agents to,
immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing.
6.2 RESTRICTION ON TRANSFER, PROXIES AND NONINTERFERENCE. Each
Stockholder hereby agrees, while this Agreement is in effect, and except as
contemplated hereby, not to (a) sell, transfer, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or understanding with respect to the sale, transfer, pledge,
encumbrance, assignment or other disposition of, any of the Shares without
notifying Parent in advance and obtaining and delivering to Parent any evidence
that Parent may reasonably request to evidence the transferee's agreement to be
bound by this Agreement; provided, however, that in the event of the
Stockholder's death during the term of this Agreement, the Shares may be
transferred in accordance with the Stockholder's last will and testament, or if
none, in accordance with the applicable laws of intestate succession, in either
of which cases, the Shares shall remain subject in all respects to the terms of
this Agreement, or (b) grant any proxies, deposit any Shares into a voting trust
or enter into a voting agreement with respect to any Shares, or (c) take any
action that would make any representation or warranty of such Stockholder
contained herein untrue or incorrect or have the effect of preventing or
disabling in any material respect such Stockholder from performing such
Stockholder's obligations under this Agreement.
6.3 LEGENDING OF CERTIFICATES; NOMINEE SHARES. If requested by Merger
Subsidiary, each Stockholder agrees to submit to Merger Subsidiary
contemporaneously with or within five
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business days following execution of this Agreement all certificates
representing the Shares so that Merger Subsidiary may note thereon a legend
referring to the proxy and other rights granted to it by this Agreement. If any
of the Shares beneficially owned by a Stockholder are held of record by a
brokerage firm in "street name" or in the name of any other nominee (a
"Nominee", and, as to such Shares, "Nominee Shares"), each such Stockholder
agrees that, upon written notice by Merger Subsidiary requesting it, each
Stockholder will within five business days of the giving of such notice execute
and deliver to Merger Subsidiary a limited power of attorney in such form as
shall be reasonably satisfactory to Merger Subsidiary enabling Merger Subsidiary
to require the Nominee to (i) tender such Nominee Shares in the Offer pursuant
to Section 2, (ii) agree to vote the Nominee Shares to the same effect as
Section 3, (iii) grant to Merger Subsidiary an irrevocable proxy to the same
effect as Section 4 with respect to the Nominee Shares held by such Nominee,
(iv) submit to Merger Subsidiary the certificates representing such Nominee
Shares for notation of the above-referenced legend thereon, and (v) effect any
other obligation of such Stockholder hereunder.
6.4 STOP TRANSFER ORDER. In furtherance of this Agreement, concurrently
herewith, the Stockholder shall and hereby does authorize the Company's counsel
to notify the Company's transfer agent that there is a stop transfer order with
respect to all of the Shares (and that this Agreement places limits on the
voting and transfer of such Shares).
7. FURTHER ASSURANCES. From time to time, at the other party's request and
without further consideration, each party hereto shall execute and deliver such
additional documents and take all such further action as may be reasonably
necessary or desirable to consummate the transactions contemplated by this
Agreement.
8. STOCK DIVIDENDS, ETC. In the event of a stock dividend or distribution, or
any change in the Company's Common Stock by reason of any stock dividend,
split-up, reclassification, recapitalization, combination or the exchange of
shares, the term "Shares" shall be deemed to refer to and include the Shares as
well as all such stock dividends and distributions and any shares into which or
for which any or all of the Shares may be changed or exchanged. I
9. MISCELLANEOUS.
9.1 ENTIRE AGREEMENT; ASSIGNMENT. This Agreement (i) constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof and (ii) shall not
be assigned by operation of law or otherwise.
9.2 AMENDMENTS. This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
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9.3 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following address:
If to Stockholder: At such Stockholder's address set
forth on Schedule A hereto
copy to: Gradall Industries, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
copy to: Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to Parent or Merger Subsidiary: JLG Industries, Inc.
▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
copy to: ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: W. ▇▇▇▇▇▇ ▇▇▇▇, Esq.
If to the Company: Gradall Industries, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
copy to: Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇
▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
9.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
9.5 COOPERATION AS TO REGULATORY MATTERS. If so requested by Parent or
Merger Subsidiary, promptly after the date hereof, the Stockholder will use its
reasonable best efforts, and will use reasonable best efforts to cause the
Company (if required in either case) to make all filings which are required
under the HSR Act and applicable requirements and to seek all regulatory
approvals required in connection with the transactions contemplated hereby. The
parties hereto shall furnish to each other such necessary information and
reasonable assistance as may be requested in connection with the preparation of
filings and submissions to any governmental agency, including, without
limitation, filings under the provisions of the HSR Act. Each Stockholder shall
also use its reasonable best efforts to cause the Company to supply Merger
Subsidiary with copies of all correspondence, filings or communications (or
memoranda setting forth the substance thereof) between the Company and its
representatives and the Federal Trade Commission, the Department of Justice and
any other governmental agency or authority and members of their respective
staffs with respect to this Agreement and the transactions contemplated hereby.
9.6 TERMINATION. This Agreement shall terminate on the Termination
Date.
9.7 SPECIFIC PERFORMANCE. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore, each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
9.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but both of which
shall constitute one and the same Agreement.
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9.9 DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
9.10 SEVERABILITY. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
9.11 STOCKHOLDER CAPACITY. Each Stockholder executing this Agreement
makes no agreement hereunder in his capacity as a director or officer of the
Company. Each Stockholder is executing and delivering this Agreement solely in
that Stockholder's capacity as the record and/or beneficial owner of that
Stockholder's Shares. Notwithstanding anything to the contrary in this
Agreement, no action or inaction by any Stockholder in his capacity as a
director, officer, or employee of the Company shall be deemed to contravene
Section 6.1 hereof as long as the action or inaction does not contravene Section
5.02 of the Merger Agreement.
[The remainder of this page has been left blank.]
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(Page 1 of 2 Signature Pages)
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf of
each of the parties hereto, all as of the date first above written.
JLG INDUSTRIES, INC.
By: /s/ L. ▇▇▇▇▇ ▇▇▇▇▇
_________________________________
Name: L. ▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman, President & CEO
JLG ACQUISITION CORP.
By: /s/ L. ▇▇▇▇▇ ▇▇▇▇▇
_________________________________
Name: L. ▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman & President
GRADALL INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and CEO
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(Page 2 of 3 Signature Pages)
Stockholders:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
_________________________________
▇▇▇▇▇▇▇ ▇▇▇
Director, Gradall Industries, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Director, Gradall Industries, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Director, Gradall Industries, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
_________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Director, Gradall Industries, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
_________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Director, Gradall Industries, Inc.
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(Page 3 of 3 Signature Pages)
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________________
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________________
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
_________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇
15
SCHEDULE A
NAME * COMMON STOCK SHARES **
----- - ------------------- --
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ -- 277,000 74,994
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ -- 48,500 50,680
▇▇▇▇▇ ▇▇▇▇▇▇ -- 27,700 31,010
▇▇▇▇▇ ▇▇▇▇▇▇ 330 27,700 31,010
(Note #1)
▇▇▇▇▇▇ ▇▇▇▇▇▇ 51 11,350 17,255
▇▇▇▇▇▇▇ ▇▇▇ -- 70,821 --
▇▇▇▇▇ ▇. ▇▇▇▇▇ -- 55,821 --
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 138,507
-------- -------- --------
381 657,399 204,949
======== ======== ========
* Does not include additional shares purchased in Employee Stock
Purchase Plan.
** Identifying number of options under this agreement not required to exercise
but if exercised are obligated to tender, i.e. Total Shares Exercisable as
of 5/1/99.
Note #1: 330 shares (▇▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ - 300; ▇▇▇▇▇▇ Children, ▇.▇.
▇▇▇▇▇▇, Custodian - 30).