EXHIBIT 4.9
TRUST AGREEMENTMNAT
OF
APPLIED POWER CAPITAL TRUST II
This Trust Agreement, dated as of December 23, 1998, between Applied
Power Inc., a Wisconsin corporation, as "Depositor," and The First National Bank
of Chicago, a national banking association organized under the laws of the
United States, First Chicago Delaware Inc., a Delaware corporation, Xxxxxxx X.
Sim and Xxxxxx X. Xxxxxxxxxx, each solely as trustee and not in its or his
individual capacity, as "Trustees." The Depositor and the Trustees hereby agree
as follows:
Section 1. The Trust. The trust created hereby shall be known as
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Applied Power Capital Trust II (the "Trust"), in which name the Trustees, or the
Depositor to the extent provided herein, may conduct the business of the Trust,
make and execute contracts, and xxx and be sued.
Section 2. The Trust Estate. The Depositor hereby assigns, transfers,
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conveys and sets over to the Trustees the sum of $10. The Trustees hereby
acknowledge receipt of such amount in trust from the Depositor, which amount
shall constitute the initial trust estate. The Trustees hereby declare that they
will hold the trust estate in trust for the Depositor. It is the intention of
the parties hereto that the Trust created hereby constitute a business trust
under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. (S)(S) 3801 et
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seq. (the "Business Trust Act"), and that this document constitutes the
governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Delaware Secretary
of State in accordance with the provisions of the Business Trust Act.
Section 3. Amended and Restated Trust Agreement. The Depositor and
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the Trustees will enter into an amended and restated Trust Agreement,
satisfactory to each such party and substantially in the form included as an
exhibit to the 1933 Act Registration Statement (as defined below), to provide
for the contemplated operation of the Trust created hereby and the issuance of
the Preferred Securities (as defined below) and common securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery of any
licenses, consents or approvals required by applicable law or otherwise.
Section 4. Certain Authorizations. The Depositor and the Trustees
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hereby authorize the Depositor, as the sponsor of the Trust, (i) to file with
the Securities and Exchange Commission (the "Commission") and execute, in each
case on behalf of the Trust, (a) the Registration Statement on Form S-3 (the
"1933 Act Registration Statement"), including any pre-effective or post-
effective amendments to such 1933 Act Registration Statement (including the
prospectus and the exhibits contained therein), relating to the registration
under the Securities Act of 1933, as amended, of the preferred securities of the
Trust (the "Preferred Securities") and possibly certain other securities and (b)
a Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Preferred Securities of the Trust under Section 12(b) of
the Securities Exchange Act of 1934, as amended; (ii) to file with the New York
Stock Exchange or any other national stock exchange or The Nasdaq National
Market (each, an "Exchange") and execute on behalf of the Trust one or more
listing applications and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or blue sky
laws, and to obtain any permits under the insurance laws of such jurisdictions
as the Depositor, on behalf of the Trust, may deem necessary or desirable; (iv)
to execute on behalf of the Trust letters or documents, or instruments for
filing with, a depository relating to the Preferred Securities; and (v) to
execute on behalf of the Trust one or more underwriting agreements with one or
more underwriters relating to the offering of the Preferred Securities.
In the event that any filing referred to in clauses (i) through (iv)
above is required by the rules and regulations of the Commission, an Exchange or
any state securities or blue sky laws, to be executed on behalf of the Trust by
the Trustees, in their capacities as Trustees of the Trust, the Trustees are
hereby authorized and directed to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that The
First National Bank of Chicago and First Chicago Delaware Inc., in their
capacities as Trustees of the Trust, shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless required by
the rules and regulations of the Commission, an Exchange or any state securities
or blue sky laws. In connection with all of the foregoing, the Depositor and
each Trustee, solely in its capacity as Trustee of the Trust, hereby constitutes
and appoints Xxxxxxx X. Sim and Xxxxxx X. Xxxxxxxxxx, and each of them, as his,
her or its, as the case may be, true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for the Depositor or in the
Depositor's name, place and stead, in any and all capacities, to sign the 1933
Act Registration Statement and any and all amendments (including post-effective
amendments) thereto and the 1934 Act Registration Statement and any and all
amendments (including post-effective amendments) thereto and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as the
Depositor might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their respective substitute
or substitutes, shall do or cause to be done by virtue hereof.
Section 5. Counterparts. This Trust Agreement may be executed in one
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or more counterparts.
Section 6. Trustees. The number of Trustees initially shall be four
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(4) and thereafter the number of Trustees shall be such number as shall be fixed
from time to time by a written instrument signed by the Depositor which may
increase or decrease the number of Trustees; provided, however, that to the
extent required by the Business Trust Act, one Trustee shall either be a natural
person who is a resident of the State of Delaware or, if not a natural person,
an entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
Trustee at any time. A Trustee may resign upon thirty days' prior notice to the
Depositor.
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Section 7. Delaware Trustee. First Chicago Delaware Inc., in its
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capacity as Trustee, shall not have any of the powers or duties of the Trustees
set forth herein (except as may be required under the Business Trust Act) and
shall be a Trustee of the Trust for the sole purpose of satisfying the
requirements of Section 3807(a) of the Business Trust Act.
Section 8. Governing Law. This Trust Agreement shall be governed by,
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and construed in accordance with, the laws of the State of Delaware (without
regard to conflict of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
APPLIED POWER INC.,
as Depositor
By: _________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: _________________________________
Name:
Title:
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: _________________________________
Name:
Title:
_____________________________________
Xxxxxxx X. Sim, as Trustee
_____________________________________
Xxxxxx X. Xxxxxxxxxx, as Trustee
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