$200,000,000
APPLIED POWER INC.
13% Senior Subordinated Notes Due 2009
PURCHASE AGREEMENT
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July 21, 2000
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
As Representatives of the Several Purchasers,
c/o Credit Suisse First Boston Corporation,
Xxxxxx Xxxxxxx Xxxxxx,
Xxx Xxxx, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Applied Power Inc. which intends to change its name to
Actuant Corporation (the "Company") proposes, subject to the terms and
conditions stated herein, to issue and sell to the several initial purchasers
named in Schedule A hereto (the "Purchasers") U.S.$200,000,000 principal amount
of its 13% Senior Subordinated Notes Due 2009 ("Notes") to be issued under an
indenture, dated as of August 1, 2000 (the "Indenture"), between the Company and
Bank One Trust Company, N.A., as Trustee. The Notes will be guaranteed (the
"Guarantees") on a senior subordinated, unsecured basis by each of the Company's
wholly owned domestic subsidiaries listed on the signature pages hereof
(collectively, the "Guarantors"). The Company and the Guarantors are
collectively referred to herein as the "Issuers." The Notes and the Guarantees
are collectively referred to herein as the "Offered Securities." The United
States Securities Act of 1933, as amended, is herein referred to as the
"Securities Act."
The Offered Securities are being sold in connection with (i) the spin-off
(the "Spin-off") of Applied Power Inc.'s integrated electronics enclosures
business from its tools and supplies and engineered solutions businesses and
(ii) the Company's tender offer for, and consent solicitation with respect to,
up to $200,000,000 aggregate principal amount of its outstanding 8.75% Senior
Subordinated Notes due 2009 (the "Tender Offer"), pursuant to the Company's
offer to purchase dated June 30, 2000, as amended or supplemented. The
Purchasers and direct and indirect transferees of the Offered Securities will be
entitled to the benefits of a Registration Rights Agreement to be dated as of
August 1, 2000 among the parties hereto (the "Registration Rights Agreement"),
pursuant to which the Company has agreed, among other things, to file (a) a
registration statement (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") registering the Notes or the Exchange
Notes (as defined in the Registration Rights Agreement) under the Securities Act
or (b) a shelf registration statement pursuant to Rule 415 under the Securities
Act relating to the resale of the Notes by holders thereof or, if applicable,
relating to the resale of Private Exchange Notes (as defined in the Registration
Rights Agreement) by the Purchasers.
The Notes, the Exchange Notes, the Guarantees, the Indenture, the
Registration Rights Agreement and this Agreement are herein collectively
referred to as the "Basic Documents."
The Issuers hereby agree with the several Purchasers as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities to be offered by the Purchasers have
been prepared by the Company. Such preliminary offering circular (the
"Preliminary Offering Circular") and offering circular (the "Offering
Circular"), as supplemented as of the date of this Agreement are
hereinafter collectively referred to as the "Offering Document." On the
date of this Agreement, the Offering Document does not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
The preceding sentence does not apply to statements in or omissions from
the Offering Document based upon written information furnished to the
Company by any Purchaser through Credit Suisse First Boston Corporation
("CSFBC") specifically for use therein, it being understood and agreed that
the only such information is that described as such in Section 7(b) hereof.
(b) The Company has been duly 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 Offering
Document 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 to qualify or to be in good standing (or
equivalent status) would not result in a Material Adverse Effect.
(c) Each significant subsidiary of the Company listed on
Schedule B hereto (each a "Subsidiary" and, collectively, the
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"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing (or equivalent status) under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Offering Document and 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
(or equivalent status) would not result in a Material Adverse Effect;
except as otherwise disclosed in the Offering Document, all of the issued
and outstanding capital stock of each such Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable (except as
otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law, as judicially interpreted) and is owned by the Company,
directly or through Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
Subsidiary.
(d) Each Guarantor has been duly organized and is validly
existing as a corporation in good standing (or equivalent status) under the
laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Offering Document and 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 (or equivalent status) would not result in a Material Adverse
Effect; except as otherwise disclosed in the Offering Document, all of the
issued and outstanding capital stock of each Guarantor has been duly
authorized and validly issued, is fully paid and non-assessable (except as
otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law, as judicially interpreted) and is owned by the Company,
directly or through Subsidiaries, free and clear of any
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security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock of any Guarantor was issued
in violation of the preemptive or similar rights of any securityholder of
such Guarantor.
(e) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Offering Document in the Company's
consolidated financial statements (except for subsequent issuances, if any,
pursuant to reservations, agreements or employee benefit plans referred to
in the Offering Document or pursuant to the exercise of convertible
securities or options referred to in the Offering Document). The shares of
issued and outstanding capital stock have been duly authorized and validly
issued and are fully paid and non-assessable (except as otherwise provided
in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as
judicially interpreted); none of the outstanding shares of capital stock
was issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(f) Each of the Issuers has the requisite corporate power and
authority to execute, deliver and perform its obligations under the
Indenture. The Indenture has been duly and validly authorized by the
Issuers and meets the requirements for qualification under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). The Notes
have been duly and validly authorized by the Company. When the Notes are
delivered and paid for pursuant to this Agreement on the Closing Date (as
defined below), the Indenture will have been duly executed and delivered by
the Company and, assuming the due authorization, execution and delivery of
the Indenture by the Trustee, such Notes will have been duly executed,
authenticated, issued and delivered by the Company and will conform to the
description thereof contained in the Offering Document and the Indenture
and such Notes will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles (the "Enforceability Exceptions").
(g) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement in connection with the issuance and sale of
the Offered Securities by the Issuers except for filing with the Commission
and for the order of the Commission declaring the Exchange Offer
Registration Statement or the Shelf Registration Statement (each as defined
in the Registration Rights Agreement) effective.
(h) The Company has all requisite corporate power and authority
to execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. This Agreement and the
transactions contemplated hereby have been duly and validly authorized by
the Company. This Agreement has been duly and validly executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms except that the enforcement thereof may be limited by the
Enforceability Exceptions and except as any rights to indemnity or
contribution hereunder may be limited by federal and state securities laws
and public policy considerations.
(i) Each of the Issuers has the requisite corporate power and
authority to execute, deliver and perform its obligations under the
Registration Rights Agreement. The Registration Rights Agreement has been
duly and validly authorized by each of the Issuers (assuming the due
authorization, execution and delivery thereof by the Purchasers), and when
executed and delivered by each of the Issuers, will constitute a valid and
legally binding agreement of each of the Issuers, enforceable against each
of the Issuers in accordance with its terms except that the enforcement
thereof may be limited by the Enforceability Exceptions and except as any
rights to indemnity or contribution thereunder may be limited by
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federal and state securities laws and public policy considerations. The
Offered Securities, the Indenture and the Registration Rights Agreement
conform in all material respects to the descriptions thereof in the
Offering Circular.
(j) The Guarantees have been duly authorized by each of the
Guarantors; and when issued by the Guarantors in accordance with the terms
of the Indenture and the Notes are delivered and paid for pursuant to this
Agreement, the Guarantees will have been duly executed, issued and
delivered and will be in the form contemplated by, and entitled to the
benefits of, the Indenture and will constitute valid and legally binding
obligations of each of the Guarantors, enforceable in accordance with their
terms, except that the enforcement thereof may be limited by the
Enforceability Exceptions.
(k) The Company has all requisite corporate power and authority
to perform its obligations under its obligations under the Tender Offer and
to consummate the transactions contemplated thereby. The Tender Offer and
the transactions contemplated thereby have been duly and validly authorized
by the Company.
(l) Each of the Issuers and the Subsidiaries possesses good and
marketable title to all real property owned by it and good title to all
other properties owned by it, 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 Offering
Document 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 Issuers or any of the
Subsidiaries; and all of the leases and subleases material to the business
of the Issuers and the Subsidiaries, considered as one enterprise, and
under which the Issuers or any of the Subsidiaries holds properties
described in the Offering Document, are in full force and effect, and
neither the Issuers nor any Subsidiary has any notice of any material claim
of any sort that has been asserted by anyone adverse to the rights of the
Issuers or any Subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Issuers or such
Subsidiary to the continued possession of the leased or subleased premises
under any such lease or sublease, except in any such case as could not
reasonably be expected to result in a Material Adverse Effect.
(m) Each of the Issuers and the Subsidiaries possesses 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 it; each of the Issuers and the Subsidiaries
is 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 none of the Issuers or any of the 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.
(n) No labor dispute with the employees of the Issuers and the
Subsidiaries exists or, to the knowledge of the Issuers is imminent that
might have a Material Adverse Effect.
(o) The Issuers and the Subsidiaries 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
prop-
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erty rights that, if determined adversely to the Issuers and the
Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(p) Except as described in the Offering Document and except as
would not, individually or in the aggregate, result in a Material Adverse
Effect, (A) none of the Issuers or the 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)
each of the Issuers and the Subsidiaries has all permits, authorizations
and approvals required under any applicable Environmental Laws and is 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
Issuers and the 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 any of the Issuers and
the Subsidiaries relating to Hazardous Materials or any Environmental Laws.
(q) There is no action, suit, 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 Subsidiary,
which is required to be disclosed in the Offering Document (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 hereunder; the aggregate of
all pending legal or governmental proceedings to which the Company or any
Subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Offering Document,
including ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(r) The financial statements included in the Offering Document
present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and cash
flows for the periods shown, and except as otherwise disclosed in the
Offering Document such financial statements have been prepared in
conformity with generally accepted accounting principles in the United
States applied on a consistent basis and the assumptions used in preparing
the pro forma financial statements and the adjusted financial information
included in the Offering Document provide a reasonable basis for presenting
the significant effects directly attributable to the transactions or events
described therein, the related pro forma and adjusted adjustments give
appropriate effect to those assumptions, and the pro forma and adjusted
columns therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts.
(s) Since the date of the last audited financial statements
included in the Offering Document, 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
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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) except for regular quarterly
dividends on the Company's common stock in amounts per share that are
consistent with past practice, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock.
(t) None of the Issuers or the Subsidiaries is an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
United States Investment Company Act of 1940 (the "Investment Company
Act"); and none of the Issuers or the Subsidiaries is or, after giving
effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Offering Document,
will be an "investment company" as defined in the Investment Company Act.
(u) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed
on any national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation system.
(v) The offer and sale of the Offered Securities in the manner
contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act by reason of Section 4(2) thereof,
Regulation D thereunder and Regulation S thereunder and it is not necessary
to qualify an indenture in respect of the Offered Securities under the
Trust Indenture Act.
(w) None of the Company or any of its affiliates or any person
acting on its or their behalf (i) has, within the six-month period prior to
the date hereof, offered or sold in the United States or to any U.S. person
(as such terms are defined in Regulation S under the Securities Act) the
Offered Securities or any security of the same class or series as the
Offered Securities or (ii) has offered or will offer or sell the Offered
Securities (A) in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) under
the Securities Act or (B) with respect to any such securities sold in
reliance on Rule 903 of Regulation S ("Regulation S") under the Securities
Act, by means of any directed selling efforts within the meaning of Rule
902(c) of Regulation S. The Company, its affiliates and any person acting
on its or their behalf have complied and will comply with the offering
restrictions requirement of Regulation S. The Company has not entered and
will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for this Agreement.
(x) The Company is subject to Section 13 or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act").
(y) The documents incorporated by reference in the Offering
Document, when they were filed with the Commission, complied in all
material respects with the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder (the "Exchange Act
Regulations"), and none of such documents contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Offering
Document or any further amendment or supplement thereto, when such
documents are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Exchange Act and the
Exchange Act Regulations 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.
(z) None of the Issuers or any of the Subsidiaries is in
violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
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in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which any of the
Issuers or the 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 any of the Issuers or
the 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 Offering
Document (including the issuance and sale of the Offered Securities and the
use of the proceeds from the sale of the Offered Securities as described in
the Offering Document under the caption "Use of Proceeds") and compliance
by the Issuers with their obligations hereunder 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 any of the Issuers or the
Subsidiaries pursuant to, the Agreements and Instruments (except for such
conflicts, breaches, Repayment Events 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 charter or by-
laws of any of the Issuers or the 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 any of the Issuers or the Subsidiaries or any of
their assets, properties or operations. As used herein, 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 any of the Issuers or the Subsidiaries other than the
intended repayment of indebtedness described under "Use of Proceeds" in the
Offering Document.
(aa) Except for the Registration Rights Agreement, 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 Securities Act with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to the Registration Rights Agreement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Securities Act.
(bb) Each of PricewaterhouseCoopers LLP and Deloitte & Touche
LLP, who have certified certain of the financial statements included in, or
incorporated by reference in, the Offering Document, is an independent
public accountant as required by the Securities Act.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 95.675% of the principal amount
thereof, the respective principal amounts of Offered Securities set forth
opposite the names of the Purchasers in Schedule A hereto.
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The Company will deliver against payment of the purchase price therefor the
Offered Securities in the form of one or more permanent global Offered
Securities in definitive form (the "Global Securities") deposited with the
Trustee as custodian for The Depository Trust Company ("DTC") and registered in
the name of Cede & Co., as nominee for DTC. Interests in any permanent Global
Securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Offering Document. Payment for the
Offered Securities shall be made by the Purchasers in federal (same day) funds
by official bank check or checks or wire transfer to an account at a bank
acceptable to CSFBC at the office of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx,
Xxx Xxxx, XX 00000, at 10:00 A.M. New York City time, on August 1, 2000, or at
such other time not later than seven full business days thereafter as CSFBC and
the Company determine, such date being herein referred to as the "Closing Date,"
against delivery to the Trustee as custodian for DTC of the Global Securities
repre-
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senting all of the Offered Securities. The Global Securities will be made
available for checking at the above office of Xxxxxx Xxxxxx & Xxxxxxx at least
24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers. (a) Each
Purchaser severally represents and warrants to the Issuers that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except in accordance with Regulation S or pursuant to an
exemption from the registration requirements of the Securities Act. Each
Purchaser severally represents and agrees that it has offered and sold the
Offered Securities, and will offer and sell the Offered Securities (i) as part
of its distribution at any time and (ii) otherwise until 40 days after the later
of the commencement of the offering and the Closing Date, only in accordance
with Rule 903 or Rule 144A under the Securities Act ("Rule 144A"). Accordingly,
neither such Purchaser nor its affiliates, nor any persons acting on its or
their behalf, has engaged or will engage in any directed selling efforts with
respect to the Offered Securities, and such Purchaser, its affiliates and all
persons acting on its or their behalf have complied and will comply with the
offering restrictions requirement of Regulation S. Each Purchaser severally
agrees that, at or prior to confirmation of sale of the Offered Securities,
other than a sale pursuant to Rule 144A, such Purchaser will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases the Offered Securities from it during the restricted
period a confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the date of the commencement of the offering and the
closing date, except in either case in accordance with Regulation
S (or Rule 144A if available) under the Securities Act. Terms
used above have the meanings given to them by Regulation S."
Terms used in this subsection (b) have the meanings given to them by Regulation
S.
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Offered Securities except for any such
arrangements with the other Purchasers or affiliates of the other Purchasers or
with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the United States by
means of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act, including, but not limited to
(i) any advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio, or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Each Purchaser severally agrees, with
respect to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or otherwise
prior to settlement of such resale a notice to the effect that the resale of
such Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees that
(i) it has not offered or sold and prior to the date six months after the date
of issue of the Offered Securities will not offer or sell any Offered Securities
to persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the
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United Kingdom within the meaning of the Public Offers of Securities Regulations
1995; (ii) it has complied and will comply with all applicable provisions of the
Financial Services Act 1986 with respect to anything done by it in relation to
the Offered Securities in, from or otherwise involving the United Kingdom; and
(iii) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issue of the
Offered Securities to a person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order
1996 or is a person to whom such document may otherwise lawfully be issued or
passed on.
5. Certain Agreements. The Issuers agree with the several Purchasers
that:
(a) The Issuers will advise CSFBC promptly of any proposal to
amend or supplement the Offering Document and will not effect such
amendment or supplementation without CSFBC's consent, which consent shall
not be unreasonably withheld. If, at any time prior to the completion of
the resale of the Offered Securities by the Purchasers, any event occurs as
a result of which the Offering Document as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, the
Issuers promptly will notify CSFBC of such event and promptly will prepare,
at their own expense, an amendment or supplement which will correct such
statement or omission. Neither CSFBC's consent to, nor the Purchasers'
delivery to offerees or investors of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 6.
(b) The Issuers will furnish to CSFBC copies of any Preliminary
Offering Circular, the Offering Circular and all amendments and supplements
to such documents, in each case as soon as available and in such quantities
as CSFBC requests, and the Issuers will furnish to CSFBC on the date hereof
three copies of the Offering Document signed by a duly authorized officer
of the Company, one of which will include the independent accountants'
reports therein manually signed by such independent accountants (except
that the Issuers do not need to provide an independent accountants' report
of Deloitte & Touche for the Preliminary Offering Circular). At any time
when the Company is not subject to Section 13 or 15(d) of the Exchange Act,
the Company will promptly furnish or cause to be furnished to CSFBC and,
upon request, to each of the other Purchasers and, upon request of holders
and prospective purchasers of the Offered Securities, to such holders and
purchasers, copies of the information required to be delivered to holders
and prospective purchasers of the Offered Securities pursuant to Rule
144A(d)(4) under the Securities Act (or any successor provision thereto) in
order to permit compliance with Rule 144A in connection with resales by
such holders of the Offered Securities. The Company will pay the expenses
of printing and distributing to the Purchasers all such documents.
(c) The Issuers will arrange for the qualification of the
Offered Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions in the United States and
Canada as CSFBC designates and will continue such qualifications in effect
so long as required for the resale of the Offered Securities by the
Purchasers, provided that none of the Issuers will be required to qualify
as a foreign corporation or to file a general consent to service of process
in any such state.
(d) During the period of ten years hereafter, the Company will
furnish to CSFBC and, upon request, to each of the other Purchasers, as
soon as practicable after the end of each fiscal year, a copy of its annual
report to shareholders for such year; and the Company will furnish to CSFBC
and, upon request, to each of the other Purchasers (i) as soon as
available, a copy of each report and any definitive proxy statement of the
Company filed with the Commission under the Exchange Act or mailed to
shareholders, and (ii) from time to time, such other information concerning
the Company as CSFBC may reasonably request.
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(e) During the period of two years after the Closing Date, the
Issuers will, upon request, furnish to CSFBC, each of the other Purchasers
and any holder of Offered Securities a copy of the restrictions on transfer
applicable to the Offered Securities.
(f) During the period of two years after the Closing Date, the
Issuers will not, and will not permit any of its affiliates (as defined in
Rule 144 under the Securities Act) to, resell any of the Offered Securities
that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the
Issuers will not be or become an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the
performance of the Issuers' obligations under this Agreement, the Indenture
and the Registration Rights Agreement, including (i) the fees and expenses
of the Trustee and its professional advisers, (ii) all expenses in
connection with the execution, issue, authentication, packaging and initial
delivery of the Offered Securities and, as applicable, the Exchange
Securities (as defined in the Registration Rights Agreement), the
preparation and printing of this Agreement, the Registration Rights
Agreement, the Indenture, the Offering Document and amendments and
supplements thereto, and any other document relating to the issuance,
offer, sale and delivery of the Offered Securities and as applicable, the
Exchange Securities, (iii) the cost of listing the Offered Securities and
qualifying the Offered Securities for trading in The Portal/SM/ Market
("PORTAL") and any expenses incidental thereto, (iv) the cost of any
advertising approved by the Company in connection with the issue of the
Offered Securities (v) any expenses (including fees and disbursements of
counsel) incurred in connection with qualification of the Offered
Securities or the Exchange Securities for sale under the laws of such
jurisdictions in the United States and Canada as CSFBC designates and the
printing of memoranda relating thereto, (vi) for any fees charged by
investment rating agencies for the rating of the Offered Securities or the
Exchange Securities, and (vii) expenses incurred in distributing
Preliminary Offering Circulars and the Offering Document (including any
amendments and supplements thereto) to the Purchasers. The Company will
also pay (to the extent incurred by them) or reimburse the Purchasers for
all travel expenses of the Company's officers and employees and any other
expenses of the Issuers in connection with attending or hosting meetings
with prospective purchasers of the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFBC shall have
notified the Company and the other Purchasers of the completion of the
resale of the Offered Securities, none of the Issuers and any of their
affiliates has or will, either alone or with one or more other persons, bid
for or purchase for any account in which it or any of its affiliates has a
beneficial interest any Offered Securities or attempt to induce any person
to purchase any Offered Securities; and neither it nor any of its
affiliates will make bids or purchases for the purpose of creating actual,
or apparent, active trading in, or of raising the price of, the Offered
Securities.
(j) For a period of 180 days after the Closing Date, none of the
Issuers will offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, any U.S. dollar-denominated debt securities issued
or guaranteed by any of the Issuers and having a maturity of more than one
year from the date of issue. None of the Issuers will at any time offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any securities under circumstances where such offer, sale,
pledge, contract or disposition would cause the exemption afforded by
Section 4(2) of the Securities Act or the safe harbor of Regulation S
thereunder to cease to be applicable to the offer and sale of the Offered
Securities.
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(k) The Company shall apply the net proceeds of the sale of the
Offered Securities as set forth in the Offering Document.
(l) The Company will use best efforts to have the Offered
Securities admitted for trading in PORTAL.
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Offered Securities on the
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Issuers herein, to the accuracy of the statements
of officers of each of the Issuers made pursuant to the provisions hereof, to
the performance by each of the Issuers of its obligations hereunder and to the
following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date
of this Agreement, of each of PricewaterhouseCoopers LLP and Deloitte &
Touche LLP in form and substance satisfactory to the Purchasers and
substantially in the form of Exhibit A.
---------
(b) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) a change in U.S. or international
financial, political or economic conditions or currency exchange rates or
exchange controls as would, in the judgment of CSFBC, be likely to
prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities, whether in the primary market or in
respect of dealings in the secondary market, or (ii) (A) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of the
Company or its subsidiaries which, in the judgment of a majority in
interest of the Purchasers including CSFBC, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
offering or the sale of and payment for the Offered Securities; (B) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (C) any suspension
or limitation of trading in securities generally on the New York Stock
Exchange or any setting of minimum prices for trading on such exchange, or
any suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (D) any banking moratorium declared by
U.S. Federal or New York authorities; or (E) any outbreak or escalation of
major hostilities in which the United States is involved, any declaration
of war by Congress or any other substantial national or international
calamity or emergency if, in the judgment of a majority in interest of the
Purchasers including CSFBC, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the offering or sale of and payment for the
Offered Securities.
(c) The Purchasers shall have received an opinion, dated the
Closing Date, of Xxxxxxx & Xxxxx LLP, counsel for the Issuers, 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 Offering Document and to enter into and perform
its obligations under this Agreement;
-11-
(iii) Each Subsidiary and Guarantor 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 Offering Document;
except as otherwise disclosed in the Offering Document, all of
the issued and outstanding capital stock of each Subsidiary and
Guarantor has been duly authorized and validly issued, is fully
paid and non-assessable (except as otherwise provided in Section
180.0622(2)(b) of the Wisconsin Business Corporation Law, as
judicially interpreted) and, to the best of such counsel's
knowledge, is owned by the Company, directly or through
Subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary and
Guarantor was issued in violation of the preemptive or similar
rights of any securityholder of such Subsidiary and Guarantor;
(iv) The Indenture shall have been duly authorized, executed
and delivered by the Company and the Notes under the Indenture
shall have been duly executed and delivered by the Company and
assuming the due authorization, execution and delivery thereof by
the Trustee constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law);
(v) Each of the Issuers is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Offering
Document, will not be an "investment company" as defined in the
Investment Company Act;
(vi) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
this Agreement and the Registration Rights Agreement in
connection with the issuance or sale of the Offered Securities by
the Company, except such as may be required under state
securities laws and except for the order of the Commission
declaring the Exchange Offer Registration Statement or the Shelf
Registration Statement effective;
(vii) The execution, delivery and performance of this
Agreement, the Indenture and the Offered Securities, as
applicable, and the consummation of the transactions contemplated
in this Agreement and in the Offering Document (including the
issuance and sale of the Offered Securities and the use of the
proceeds from the sale of the Offered Securities as described in
the Offering Document under the caption "Use of Proceeds") and
compliance by the Issuers with its obligations under this
Agreement, the Indenture and the Offered Securities, as
applicable, 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 Issuers or any
Subsidiary pursuant to any written contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to such counsel, to which the
Issuers or any Subsidiary 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 Issuers or any Subsidiary is subject (except 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 charter or by-laws of the Issuers or any
Subsidiary, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to such
-12-
counsel, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Issuers or any
Subsidiary or any of their respective properties, assets or
operations;
(viii) Such counsel have no reason to believe that the
Offering Circular, or any amendment or supplement thereto, or any
Exchange Act Report as of the date hereof and as of the Closing
Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; the
descriptions in the Offering Circular and the Exchange Act
Reports of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown; it being understood that such
counsel need express no opinion as to the financial statements or
other financial data contained in the Offering Circular and the
Exchange Act Reports;
(ix) This Agreement has been duly authorized, executed and
delivered by the Company;
(x) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Issuers and constitutes
a valid and binding agreement of the Issuers, enforceable against
the Issuers in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding
in equity or at law);
(xi) It is not necessary in connection with (i) the offer,
sale and delivery of the Offered Securities by the Company to the
several Purchasers pursuant to this Agreement or (ii) the resales
of the Offered Securities by the several Purchasers in the manner
contemplated by this Agreement to register the Offered Securities
under the Securities Act or to qualify an indenture in respect
thereof under the Trust Indenture Act;
(xii) The Notes are in the form contemplated by the
Indenture, have been duly authorized by the Company and, assuming
that the Notes have been duly authenticated by the Trustee in the
manner described in its certificate delivered to the Purchasers
on the Closing Date (which fact such counsel need not determine
by an inspection of the Notes), the Notes have been duly
executed, issued and delivered by the Company and constitute
valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding
in equity or at law), and are entitled to the benefits of the
Indenture. The Notes have been duly authorized by the Company
and, assuming that the Notes have been duly authenticated by the
Trustee in the manner described in its certificate delivered to
the Purchasers on the Closing Date (which fact such counsel need
not determine by an inspection of the Notes), and upon due
execution, issuance and delivery by the Company, the Notes will
constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except
as enforcement thereof is subject to general principles of equity
(regardless of whether en-
-13-
forcement is considered in a proceeding in equity or at law), and
are entitled to the benefits of the Indenture. The Guarantees are
in the form contemplated by the Indenture, have been duly
authorized by the Guarantors and, assuming the Guarantees will be
duly executed, issued and delivered by the Guarantors, the
Guarantees will constitute valid and binding obligations of the
Guarantors, enforceable against the Guarantors in accordance with
their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and are entitled
to the benefits of the Indenture;
(xiii) The Basic Documents conform as to legal matters in all
material respects to the descriptions thereof contained in the
Offering Circular;
(xiv) The documents incorporated by reference in the Offering
Document (other than the financial statements, including any pro
forma financial information, and supporting schedules included
therein or omitted therefrom, as to which such counsel expresses
no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder;
(xv) To the best of such counsel's knowledge, there are no
statutes or regulations that are required to be described in the
Offering Document that are not described as required;
(xvi) All descriptions in the Offering Circular of written
contracts and other documents to which the Issuers or the
Subsidiaries are a party are accurate in all material respects;
to the best of such counsel's knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases
or other instruments required to be described or referred to in
the Offering Document other than those described or referred to
therein or filed or incorporated by reference as exhibits
thereto, and the descriptions thereof or references thereto are
correct in all material respects;
(xvii) To the best of such counsel's knowledge, none of the
Issuers or any Subsidiary is in violation of its charter or by-
laws and no default by the Issuers or any Subsidiary exists in
the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
agreement or instrument that is described in the Offering
Document or incorporated by reference as an exhibit to the
Offering Document; and
(xviii) To the best of such counsel's knowledge, except for the
Registration Rights Agreement, 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 Securities Act with respect to
any securities of the Company owned or to be owned by such person
or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or
in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities
Act;
(d) The Purchasers shall have received from Xxxxxx Xxxxxx &
Xxxxxxx, counsel for the Purchasers, an opinion, dated the Closing Date,
with respect to the validity of the Offered Securities, the Offering
Circular, the exemption from registration for the offer and sale of the
Offered Securities by the Company to the several Purchasers and the resales
by the several Purchasers as contemplated hereby
-14-
and other related matters as CSFBC may require, and the Company and each of
the Issuers shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters with
reference to same in the Offering Circular. In rendering such opinion,
Xxxxxx Xxxxxx & Xxxxxxx may rely as to the incorporation of the Company and
all other matters governed by Wisconsin law upon the opinion of Xxxxxxx &
Xxxxx LLP referred to above.
(e) The Purchasers shall have received certificates, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Company in this Agreement
are true and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, and that, subsequent to the dates of the
most recent financial statements in the Offering Document there has been no
Material Adverse Effect except as set forth in or contemplated by the
Offering Document or as described in such certificate, and that he or she
has carefully examined the Offering Document and, in his or her opinion, as
of the date thereof and as of the Closing Date, the statements contained in
the Offering Document were true and correct in all material respects, and
the Offering Document did not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, and since the date of the Offering Document, no event has
occurred which should have been set forth in a supplement to or an
amendment of the Offering Document which has not been so set forth in such
supplement or amendment, and that the sale of the Offered Securities has
not been enjoined (temporarily or permanently).
(f) The Purchasers shall have received letters, dated the
Closing Date, which meet the requirements of subsection (a) of this
Section, except that the specified date referred to in such subsection will
be a date not more than three days prior to the Closing Date for the
purposes of this subsection.
(g) The Company shall have furnished to the Purchasers such
further certificates and documents confirming the representations and
warranties, covenants and conditions contained herein and related matters
(including with respect to subsection (i) below) as the Purchasers may
reasonably have requested.
(h) The Offered Securities shall have been designated for
trading on PORTAL.
(i) Each of the Company and the Trustee shall have executed and
delivered the Indenture in form and substance satisfactory to the
Purchasers and the Indenture shall be in full force and effect.
(j) The Company shall have executed and delivered the
Registration Rights Agreement in form and substance satisfactory to the
Purchasers and the Registration Rights Agreement shall be in full force and
effect.
(k) The Spin-off shall be effective substantially as described
in the Offering Document and there shall be no conditions to closing under
any of the financing documents related to the Spin-off (including the
Tender Offer and the Actuant Credit Facility (as such terms are defined in
the Offering Circular)), substantially as described in the Offering
Document, that have not been satisfied or waived to the satisfaction of the
Purchasers.
(l) The Company shall apply the net proceeds of the sale of the
Offered Securities as set forth in the Offering Document.
-15-
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder.
7. Indemnification and Contribution. (a) The Issuers will, jointly and
severally, indemnify and hold harmless each Purchaser, its partners, directors
and officers and each person, if any, who controls such Purchaser within the
meaning of Section 15 of the Securities Act, against any losses, claims, damages
or liabilities, joint or several, to which the Purchaser may become subject,
under the Securities Act or the Exchange 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 Offering Document, or any amendment or supplement
thereto, or any related preliminary offering circular or the Exchange Act
Reports or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, including any losses, claims, damages or liabilities arising out of
or based upon the failure of any of the Issuers to perform its obligations under
Section 5(a) of this Agreement, and will reimburse each Purchaser for any legal
or other expenses reasonably incurred by such Purchaser in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Issuers will 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 Purchaser through CSFBC specifically for use therein, it being
understood and agreed that the only such information consists of the information
described as such in subsection (b) below; and provided, further, that with
respect to any untrue statement or alleged untrue statement in or omission or
alleged omission from any preliminary offering circular the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any Purchaser
that sold the Offered Securities concerned to the person asserting any such
losses, claims, damages or liabilities, to the extent that such sale was an
initial resale by such Purchaser and any such loss, claim, damage or liability
of such Purchaser 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 Offered
Securities to such person, a copy of the Offering Document (exclusive of any
material included therein but not attached thereto) if the Company had
previously furnished copies thereof to such Purchaser.
(b) Each Purchaser will severally and not jointly indemnify and
hold harmless each of the Issuers, its directors and officers and each person,
if any, who controls the Issuers within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or liabilities to which each
of the Issuers may become subject, under the Securities Act or the Exchange 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 Offering
Document, or any amendment or supplement thereto, or any related preliminary
offering circular, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, 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 such Purchaser through CSFBC specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Issuers in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Purchaser consists of
the following information in the Offering Document furnished on behalf of each
Purchaser: under the caption "Plan of Distribution" paragraphs three, eight and
nine; provided, however, that the Purchasers shall not be liable for any losses,
claims, damages or liabilities arising out of or based upon the Issuers' failure
to perform their obligations under Section 5(a) of this Agreement.
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(c) Promptly after receipt by an indemnified party under this
Section 7(c) of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such 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 7(c) for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. 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 and does not include a statement as
to or an admission of fault, culpability or failure to act by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 7(d) is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuers on the one hand and the Purchasers on the other from the offering of
the Offered Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Issuers on the one hand and the Purchasers 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 each of the Issuers on the one
hand and the Purchasers 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 each of the Issuers bear to the total discounts and
commissions received by the Purchasers from each of the Issuers under this
Agreement. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by each of the Issuers or the Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Offered Securities purchased by it were
resold exceeds the amount of any damages such the Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. The Purchasers' obligations in this subsection (d) to
contribute are several in proportion to their respective purchase obligations
and not joint.
(e) The obligations of each of the Issuers under this Section
shall be in addition to any liability which each of the Issuers may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Purchaser within the meaning of the Securities Act or the
Exchange Act; and the obligations of the Purchasers under this Section shall be
in addition to any liability which the respective Purchasers may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any,
who controls each of the Issuers within the meaning of the Securities Act or the
Exchange Act.
-17-
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Offered Securities hereunder and the aggregate
principal amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities, CSFBC may make arrangements satisfactory
to the Issuers for the purchase of such Offered Securities by other persons,
including any of the Purchasers, but if no such arrangements are made by the
Closing Date, the non-defaulting Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities and arrangements satisfactory
to CSFBC and the Issuers for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Purchaser and the
Issuers, except as provided in Section 9. As used in this Agreement, the term
"Purchaser" includes any person substituted for a Purchaser under this Section.
Nothing herein will relieve a defaulting Purchaser from liability for its
default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or any of their officers and of the several Purchasers set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of any Purchaser and the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If for any reason
the purchase of the Offered Securities by the Purchasers is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Issuers and the
Purchasers pursuant to Section 7 shall remain in effect. If the purchase of the
Offered Securities by the Purchasers is not consummated for any reason other
than solely because of the occurrence of any event specified in clause (C), (D)
or (E) of Section 6(b)(ii), the Company will reimburse the Purchasers for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Purchasers will be mailed, delivered or telegraphed and confirmed to the
Purchasers, c/o Credit Suisse First Boston Corporation, Xxxxxx Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000, Attention: Investment Banking Department -
Transactions Advisory Group, or, if sent to the Issuers, will be mailed,
delivered or telegraphed and confirmed to it c/o Applied Power Inc., 0000 Xxxxx
Xxxxx Xxxx, Xxxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxxxxx; provided,
however, that any notice to a Purchaser pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Issuers as if such
holders were parties thereto.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of laws.
-18-
The Issuers hereby submit to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
-19-
If the foregoing is in accordance with the Purchasers' understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
Applied Power Inc.
By: /s/
-----------------------------------
Name:
Title:
APW TOOLS & SUPPLIES, INC.
By: /s/
-----------------------------------
Name:
Title:
VERSA TECHNOLOGIES, INC.
By: /s/
-----------------------------------
Name:
Title:
Applied Power Investments II, Inc.
By: /s/
-----------------------------------
Name:
Title:
Columbus Manufacturing LLC
By: Applied Power Inc.
By: /s/
-----------------------------------
Name:
Title:
-20-
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
Acting on behalf of themselves
and as the Representatives of
the several Purchasers
By Credit Suisse First Boston Corporation
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
-21-
