OMNIQUIP INTERNATIONAL, INC.
Common Stock
($0.01 Par Value Per Share)
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT made this ___ 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 Xxxxxx Xxxxxxx & Co. Incorporated, CS First
Boston Corporation, Xxxxxxxx Wertheim & Co. Incorporated and Xxxxxx X. Xxxxx
& 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 ___ day of March, 1997.
OMNIQUIP INTERNATIONAL, INC.
By: ________________________________
Name:
Title:
HARBOUR GROUP INVESTMENTS III, L.P.
By: HARBOUR GROUP III MANAGEMENT
CO., L.P., General Partner
By: HGM III CO., General Partner
By:_____________________________
Name:
Title:
UNIQUIP-HGI ASSOCIATES, L.P.
By: HARBOUR GROUP INDUSTRIES, INC.
General Partner
By:_____________________________
Name:
Title:
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