EX-10.1



 






Exhibit 10.1




5,000,000 Shares




JLG INDUSTRIES, INC.




Common Stock

($0.20 Par Value)




UNDERWRITING AGREEMENT




March 10, 2005





 









 








UNDERWRITING AGREEMENT




March 10, 2005




UBS Securities LLC

Harris Nesbitt Corp.

SunTrust Capital Markets, Inc.
  as
Managing Underwriters

c/o UBS Securities LLC

299 Park Avenue

New York, New York 10171



Ladies and Gentlemen:




          JLG Industries, Inc., a Pennsylvania corporation (the “Company”), proposes to issue and sell
to the underwriters named in Schedule A hereto (the “Underwriters”), for whom you are
acting as representatives, an aggregate of 5,000,000 shares (the “Firm Shares”) of Common Stock,
$0.20 par value (the “Common Stock”). In addition, solely for the purpose of covering
over-allotments, the Company proposes to grant to the Underwriters the option to purchase from the
Company up to an additional 750,000 shares of Common Stock (the “Additional Shares”). The Firm
Shares and the Additional Shares are hereinafter collectively sometimes referred to as the
“Shares.” References herein to Common Stock include the related common stock purchase rights under
the Rights Agreement, dated as of May 24, 2000, between the Company and American Stock Transfer and
Trust Company. The Shares are described in the Prospectus which is referred to below.



          The Company has filed, in accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations thereunder (collectively, the “Act”), with the Securities
and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No.
333-110793) including a prospectus, relating to the Company’s debt securities and Common Stock,
including the Shares, which incorporates by reference documents which the Company has filed or will
file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a
prospectus supplement (the “Prospectus Supplement”) to the prospectus included in the registration
statement referred to above setting forth the terms of the offering, sale and plan of distribution
of the Shares and additional information concerning the Company and its business. The Company has
furnished to you, for use by the Underwriters and by dealers, copies of one or more preliminary
prospectuses containing the prospectus included in the registration statement, as supplemented by a
preliminary Prospectus Supplement relating to the Shares, and the documents incorporated by
reference therein (each such preliminary prospectus, including the documents incorporated therein
by reference, being herein called a “Preliminary Prospectus”) relating to the Shares. Except where
the context otherwise requires, the registration statement referred to above, as amended when it
became effective, including all documents filed as a part thereof or incorporated by reference
therein, and including any information contained in a prospectus subsequently filed with the
Commission pursuant to Rule 424(b) under the Act and deemed to be part of the registration
statement at the time of effectiveness



 









 





-2-




pursuant to Rule 430A under the Act and also including any
registration statement filed pursuant to Rule 462(b) under the Act, is herein called the “Registration Statement,” and the prospectus
included in the Registration Statement, including all documents incorporated therein by reference,
as supplemented by the final Prospectus Supplement relating to the Shares, in the form filed by the
Company with the Commission pursuant to Rule 424(b) under the Act on or before the second business
day after the date hereof (or such earlier time as may be required under the Act), is herein called
the “Prospectus.” As used herein, “business day” shall mean a day on which the New York Stock
Exchange is open for trading. Any reference herein to the Registration Statement, the Prospectus,
any Preliminary Prospectus or any amendment or supplement thereto shall be deemed to refer to and
include the documents incorporated by reference therein, and any reference herein to the terms
“amend,” “amendment” or “supplement” with respect to the Registration Statement, the Prospectus or
any Preliminary Prospectus shall be deemed to refer to and include the filing after the execution
hereof of any document with the Commission deemed to be incorporated by reference therein. For
purposes of this Agreement, all references to the Registration Statement or Prospectus or to any
amendment or supplement thereto shall be deemed to include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”).




          The Company and the Underwriters agree as follows:



     1. Sale and Purchase. Upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the
respective Underwriters and each of the Underwriters, severally and not jointly, agrees to purchase
from the Company the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A hereto, subject to adjustment in accordance with Section 8 hereof, in each case
at a purchase price of $20.8715 per Share. The Company is advised by you that the Underwriters
intend (i) to make a public offering of their respective portions of the Firm Shares as soon after
the effective date of the Registration Statement as in your judgment is advisable and (ii)
initially to offer the Firm Shares upon the terms set forth in the Prospectus. You may from time
to time increase or decrease the public offering price after the initial public offering to such
extent as you may determine.



          In addition, the Company hereby grants to the several Underwriters the option to purchase, and
upon the basis of the representations and warranties and subject to the terms and conditions herein
set forth, the Underwriters shall have the right to purchase, severally and not jointly, from the
Company, ratably in accordance with the number of Firm Shares to be purchased by each of them, all
or a portion of the Additional Shares as may be necessary to cover over-allotments made in
connection with the offering of the Firm Shares, at the same purchase price per share to be paid by
the Underwriters to the Company for the Firm Shares. This option may be exercised by UBS
Securities LLC (“UBS”) on behalf of the several Underwriters at any time and from time to time on
or before the thirtieth day following the date hereof, by written notice to the Company. Such
notice shall set forth the aggregate number of Additional Shares as to which the option is being
exercised, and the date and time when the Additional Shares are to be delivered (such date and time
being herein referred to as the “additional time of purchase”); provided, however,
that the additional time of purchase shall not be earlier than the time of purchase (as defined
below) nor earlier than the second business day after the date on which the option shall have been
exercised nor later than the tenth business day after the date on which the option shall have been
exercised. The number of Additional



 









 





-3-




Shares to be sold to each Underwriter shall be the number
which bears the same proportion to the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter on Schedule A hereto bears to the total number of Firm Shares (subject, in
each case, to such adjustment as you may determine to eliminate fractional shares), subject to
adjustment in accordance with Section 8 hereof.




     2. Payment and Delivery. Payment of the purchase price for the Firm Shares shall be
made to the Company by Federal Funds wire transfer, against delivery of the certificates for the
Firm Shares to you through the facilities of The Depository Trust Company (DTC) for the respective
accounts of the Underwriters. Such payment and delivery shall be made at 10:00 a.m., New York City
time, on March 16, 2005 (unless another time shall be agreed to by you and the Company or unless
postponed in accordance with the provisions of Section 8 hereof). The time at which such payment
and delivery are to be made is hereinafter sometimes called the “time of purchase.” Electronic
transfer of the Firm Shares shall be made to you at the time of purchase in such names and in such
denominations as you shall specify.



          Payment of the purchase price for the Additional Shares shall be made at the additional time
of purchase in the same manner and at the same office as the payment for the Firm Shares.
Electronic transfer of the Additional Shares shall be made to you at the additional time of
purchase in such names and in such denominations as you shall specify.



          Deliveries of the documents described in Section 6 hereof with respect to the purchase of the
Shares shall be made at the offices of Skadden, Arps, Slate, Meagher & Flom LLP at the address of
its Chicago office, at 9:00 a.m., New York City time, on the date of the closing of the purchase of
the Firm Shares or the Additional Shares, as the case may be.



     3. Representations and Warranties of the Company. The Company represents and warrants
to and agrees with each of the Underwriters that:




     (a) The Registration Statement has been declared effective under the Act; no stop order
of the Commission preventing or suspending the use of any Preliminary Prospectus or the
effectiveness of the Registration Statement has been issued and no proceedings for such
purpose have been instituted or, to the Company’s knowledge, are contemplated by the
Commission; each Preliminary Prospectus, at the time of filing thereof, complied in all
material respects to the requirements of the Act and the last Preliminary Prospectus
distributed in connection with the offering of the Shares did not, as of its date, and does
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, in light of the
circumstances under which they were made, not misleading; the Registration Statement
complied when it became effective, complies and will comply, at the time of purchase and any
additional time of purchase, in all material respects with the requirements of the Act and
the Prospectus will comply, as of its date and at the time of purchase and any additional
times of purchase, in all material respects with the requirements of the Act and any
statutes, regulations, contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the Registration
Statement have been and will be so



 









 





-4-





described or filed; the conditions to the use of Form S-3
have been satisfied; the Registration Statement did not when it became effective, does not
and will not, at the time of purchase and any additional time of purchase, 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 and the
Prospectus will not, as of its date and at the time of purchase and any additional time of
purchase, 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, in light of the
circumstances under which they were made, not misleading; provided, however, that the
Company makes no warranty or representation with respect to any statement contained in the
Preliminary Prospectus, the Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning an Underwriter and furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use in the Preliminary
Prospectus, the Registration Statement or the Prospectus; the documents incorporated by
reference in the Preliminary Prospectus, the Registration Statement and the Prospectus, at
the time they became effective or were filed with the Commission, complied in all material
respects with the requirements of the Exchange Act and did 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, in light of the circumstances under which they
were made, not misleading; and the Company has not distributed and will not distribute any
offering material in connection with the offering or sale of the Shares other than the
Registration Statement, the Preliminary Prospectus and the Prospectus;




     (b) as of the date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth under the heading “Actual” in the section of the Prospectus
entitled “Capitalization” and, as of the time of purchase and the additional time of
purchase, as the case may be, the Company shall have an authorized and outstanding
capitalization as set forth under the heading “As Adjusted” in the section of the Prospectus
entitled “Capitalization” (subject, in each case, to the issuance of shares of Common Stock
upon exercise of stock options disclosed as outstanding in the Registration Statement and
the Prospectus, the grant of stock options under existing stock option plans disclosed in the
Registration Statement and the Prospectus, withholding of shares by
the Company for tax withholding upon vesting of restricted shares
issued under the Company's stock incentive plan disclosed in the
Registration Statement and the Prospectus, and issuance of shares of Common Stock reserved
for purchase by the respective trustees under the Company’s defined contribution plans as
disclosed in the Registration Statement and the Prospectus); all of the issued and
outstanding shares of capital stock, including the Common Stock, of the Company have been
duly authorized and validly issued and are fully paid and non-assessable, have been issued
in compliance with all federal and state securities laws and were not issued in violation of
any preemptive right, resale right, right of first refusal or similar right;




     (c) the Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Pennsylvania, with full corporate power and
authority to own, lease and operate its properties and conduct its business as described in
the Registration Statement and the Prospectus, to execute and deliver this Agreement and to
issue, sell and deliver the Shares as contemplated herein;






 









 








-5-



     (d) the Company is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in the aggregate, have a material
adverse effect on the business, properties, financial condition, results of operation or
prospects of the Company and the Subsidiaries (as hereinafter defined) taken as a whole (a “Material
Adverse Effect”);




     (e) the Company has no subsidiaries (as defined in the Exchange Act) (collectively,
the “Subsidiaries,” and each a Subsidiary) that is a “significant subsidiary” of the Company
(as defined in Rule 1-02(w) of Regulation S-X under the Exchange Act except as listed on
Schedule B attached hereto (collectively the “Significant Subsidiaries,” and each a
“Significant Subsidiary”); the Company owns, either directly or indirectly through one or
more Subsidiaries, 100% of the outstanding common stock, limited liability company interests
and other ownership interests of each of the Subsidiaries; other than the capital stock,
limited liability company interests and other ownership interests of the Subsidiaries or
customer notes receivable and other investments reflected on the Company’s Consolidated
Financial Statements, the Company does not own, directly or indirectly, any shares of stock
or any other equity or long-term debt securities of any corporation or have any equity
interest in any firm, partnership, joint venture, association or other entity; complete and
correct copies of the articles of incorporation and by-laws (or similar organizational
document) of the Company and each of the Subsidiaries and all amendments thereto have been
delivered or made available to you, and except as set forth in the exhibits to the
Registration Statement no changes therein will be made subsequent to the date hereof and
prior to the time of purchase or, if later, the additional time of purchase; each Subsidiary
has been duly organized and is validly existing and (except with respect to the Subsidiaries
that are inactive, have no, individually or in the aggregate, material assets or
liabilities, do not conduct any business or have any operations or are in the process of
being dissolved (the “Inactive Subsidiaries”)) in good standing (with respect to
jurisdictions which recognize such concept) under the laws of the jurisdiction of its
organization, with full power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the Prospectus; each
Subsidiary is duly qualified to do business as a foreign corporation or other foreign entity
and is in good standing in each jurisdiction where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or in the aggregate,
have a Material Adverse Effect; all of the outstanding shares of capital stock or other
ownership interests of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable and (except for security interests granted
pursuant to (A) that certain Domestic Pledge Agreement, dated as of September 23, 2003, by
the Company and Gradall Industries, Inc. in favor of SunTrust Bank, and (B) that certain
Pledge Agreement, dated as of September 23, 2003, by the Company and JLG International, LLC,
in favor of SunTrust Bank or as otherwise described in this Section 3(e)) are owned by the
Company subject to no security interest, other encumbrance or adverse claims; and no
options, warrants or other


 









 





-6-




rights to purchase, agreements or other obligations to issue or
other rights to convert any obligation into shares of capital stock or ownership interests
in the Subsidiaries are outstanding;




     (f) the Shares have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued, fully paid and
non-assessable and free of statutory and contractual preemptive rights, resale rights,
rights of first refusal and similar rights;


     (g) the capital stock of the Company, including the Shares, conforms in all material
respects to the description thereof contained in the Registration Statement and the
Prospectus and the certificates for the Shares are in due and proper form and the holders of
the Shares will not be subject to personal liability by reason of being such holders;




     (h) this Agreement has been duly authorized, executed and delivered by the Company;




     (i) (i) neither the Company nor any of the Subsidiaries (other than the Inactive
Subsidiaries) is in violation of its respective charter or by-laws (or similar
organizational documents); (ii) neither the Company nor any of the Subsidiaries is in breach
or violation of or in default under (nor has any event occurred which with notice, lapse of
time or both would result in any breach of, constitute a default under or give the holder of
any indebtedness (or a person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a part of such indebtedness under) any
indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which any of them or any of their
properties may be bound or affected or with respect to the Inactive Subsidiaries, their
respective charter or by-laws (or similar organizational documents), except for such
breaches, violations or defaults as would not, individually or in the aggregate, have a
Material Adverse Effect; and (iii) the execution, delivery and performance of this
Agreement, the issuance and sale of the Shares and the consummation of the transactions
contemplated hereby will not conflict with, result in any breach or violation of or
constitute a default under (nor constitute any event which with notice, lapse of time or
both would result in any breach of or constitute a default under) the charter or by-laws (or
similar organizational documents) of the Company or any of the Subsidiaries, any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or
any license, lease, contract or other agreement or instrument to which the Company or any of
the Subsidiaries is a party or by which any of them or any of their respective properties
may be bound or affected, or any federal, state, local or foreign law, regulation or rule or
any decree, judgment or order applicable to the Company or any of the Subsidiaries;




     (j) no approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority or agency is
required in connection with the issuance and sale of the Shares or the consummation by the
Company of the transactions contemplated hereby other than


 









 





-7-


registration of the Shares under
the Act, which has been or will be effected, and any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the Shares are being
offered by the Underwriters or under the rules and regulations of the National Association
of Securities Dealers, Inc. (the “NASD”);




     (k) except for holders of options granted pursuant to equity compensation plans
disclosed in the Registration Statement and the Prospectus and the right to purchase the
Additional Shares hereunder, (i) no person has the right, contractual or otherwise, to cause
the Company to issue or sell to it any shares of Common Stock or shares of any other capital
stock or other equity interests of the Company, (ii) no person has any preemptive rights,
resale rights, rights of first refusal or other rights to purchase any shares of Common Stock
or shares of any other capital stock or other equity interests of the Company, and (iii) no
person has the right to act as an underwriter or as a financial advisor to the Company in
connection with the offer and sale of the Shares, in the case of each of the foregoing
clauses (i), (ii) and (iii), whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated thereby or otherwise; no
person has the right, contractual or otherwise, to cause the Company to register under the
Act any shares of Common Stock or shares of any other capital stock or other equity
interests of the Company, or to include any such shares or interests in the Registration
Statement or the offering contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the Shares as contemplated
thereby or otherwise;




     (l) each of the Company and the Subsidiaries has all necessary licenses,
authorizations, consents and approvals and has made all necessary filings required under any
federal, state, local or foreign law, regulation or rule, and has obtained all necessary
authorizations, consents and approvals from other persons, in order to conduct its
respective business, except for any failures to have or to have obtained any such licenses,
authorizations, consents or approvals or to have made such filings as would not,
individually or in the aggregate, have a Material Adverse Effect; neither the Company nor
any of the Subsidiaries is in violation of, or in default under, or has received notice of
any proceedings relating to revocation or modification of, any such license, authorization,
consent or approval or any federal, state, local or foreign law, regulation or rule or any
decree, order or judgment applicable to the Company or any of the Subsidiaries, except where
such violation, default, revocation or modification would not, individually or in the
aggregate, have a Material Adverse Effect;




     (m) all legal or governmental proceedings, affiliate transactions, off-balance sheet
transactions, contracts, licenses, agreements, leases or documents of a character required
to be described in the Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement have been so described or filed as required;




     (n) except as set forth in the Registration Statement and the Prospectus, there are no
actions, suits, claims, investigations or proceedings pending or, to the Company’s
knowledge, threatened or contemplated to which the Company or any of the Subsidiaries or any
of their respective directors or officers is a party or of which any of their respective



 









 





-8-


properties is subject at law or in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency, except any such
action, suit, claim, investigation or proceeding which would not result in a judgment,
decree or order having, individually or in the aggregate, a Material Adverse Effect or
preventing consummation of the transactions contemplated hereby;




     (o) Ernst & Young LLP, whose report on the consolidated financial statements of the
Company and the Subsidiaries is filed with the Commission as part of the Registration
Statement and the Prospectus, are independent public accountants as required by the Act;




     (p) the audited financial statements included in the Registration Statement and the
Prospectus, together with the related notes and schedules, present fairly in all material
respects the consolidated financial position of the Company and the Subsidiaries as of the
dates indicated and the consolidated results of operations and cash flows of the Company and
the Subsidiaries for the periods specified and have been prepared in compliance with the
requirements of the Act and in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved; any pro forma financial
statements or data included in the Registration Statement and the Prospectus comply as to
form in all material respects with the requirements of Regulation S-X as promulgated by the
Commission and the assumptions used in the preparation of such pro forma financial
statements and data are reasonable, the pro forma adjustments used therein are appropriate
to give effect to the transactions or circumstances described therein and the pro forma
adjustments have been properly applied to the historical amounts in the compilation of those
statements and data; the other financial and statistical data set forth in the Registration
Statement and the Prospectus are accurately presented in all material respects and prepared
on a basis consistent with the financial statements and books and records of the Company;
there are no financial statements (historical or pro forma) that are required to be included
in the Registration Statement and the Prospectus that are not included as required; and the
Company and the Subsidiaries do not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations), not disclosed in the Registration
Statement and the Prospectus;




     (q) subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been (i) any material adverse
change, or any development involving a prospective material adverse change, in the business,
properties, management, financial condition or results of operations of the Company and the
Subsidiaries taken as a whole, (ii) any transaction which is material to the Company and the
Subsidiaries taken as a whole, (iii) any obligation, direct or contingent (including any
off-balance sheet obligations), incurred by the Company or the Subsidiaries, which is
material to the Company and the Subsidiaries taken as a whole (iv) any change in the capital
stock (other than the issuance of shares of Common Stock upon exercise of stock options
disclosed as outstanding in the Registration Statement and the Prospectus and the grant of
stock options under existing stock option plans disclosed in the Registration Statement and
the Prospectus and the issuance of shares reserved for purchase by the respective trustees
under the Company’s defined contribution plans as disclosed in the Registration Statement
and Prospectus) or material increase in outstanding indebtedness of the Company or the


 









 





-9-


Subsidiaries or (v) any dividend or distribution of any kind declared, paid or made on the
capital stock of the Company, other than a $.005 per share cash dividend declared on
February 24, 2005 and payable on March 31, 2005;




     (r) the Company has obtained for the benefit of the Underwriters the agreement (a
“Lock-Up Agreement”), in the form set forth as Exhibit A hereto, of each of its
directors and officers listed on Schedule C hereto;




     (s) the Company is not and, after giving effect to the offering and sale of the Shares,
will not be an “investment company” or an entity
“controlled” by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended
(the “Investment Company Act”);


     (t) the Company and each of the Subsidiaries has good and marketable title to all
property (real and personal) described in the Registration Statement and in the Prospectus
as being owned by each of them, free and clear of all liens, claims, security interests or
other encumbrances, other than those described in the Registration Statement and the
Prospectus which do not, individually or in the aggregate, materially adversely affect the
value of or the use of such property for its current and anticipated purposes; all the
property described in the Registration Statement and the Prospectus as being held under
lease by the Company or a Subsidiary is held thereby under valid, subsisting and enforceable
leases;




     (u) (i) the Company and the Subsidiaries own, or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications, patents,
trademarks (both registered and unregistered), trade names, copyrights, trade secrets and
other proprietary information described in the Registration Statement and the Prospectus as
being owned or licensed by them or which are necessary for the conduct of their respective
businesses, except where the failure to own, license or have such rights would not,
individually or in the aggregate, have a Material Adverse Effect (collectively,
“Intellectual Property”); (ii) there are no third parties who have or, to the Company’s
knowledge, will be able to establish rights to any Intellectual Property, except for the
ownership rights of the owners of the Intellectual Property which is licensed to the
Company; (iii) to the Company’s knowledge, there is no infringement by third parties of any
Intellectual Property; (iv) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others challenging the Company’s rights in or to any
Intellectual Property, and the Company is unaware of any facts which could form a reasonable
basis for any such claim; (v) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others challenging the validity or scope of any
Intellectual Property, and the Company is unaware of any facts which could form a reasonable
basis for any such claim; (vi) except for any actions, suits, proceedings or claims which
would not, individually or in the aggregate, have a Material Adverse Effect, there is no
pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others that the Company infringes or otherwise violates any patent, trademark, copyright,
trade secret or other proprietary rights of others, and the Company is unaware of any facts
which could form a reasonable basis for any such claim; (vii) to the Company’s knowledge,
there is no patent or patent application that contains


 









 





-10-


claims that interfere with the issued
or pending claims of any of the Intellectual Property; and (viii) to the Company’s
knowledge, there is no prior art that may render any patent application owned by the Company
of the Intellectual Property unpatentable that has not been disclosed to the U.S. Patent and
Trademark Office;




     (v) there is no strike pending, or to the Company’s knowledge, threatened, against the
Company or any of the Subsidiaries and except for matters which would not, individually or
in the aggregate, have a Material Adverse Effect, (i) neither the Company nor any of the
Subsidiaries is engaged in any unfair labor practice, (ii) there is (A) no unfair labor
practice complaint pending or, to the Company’s knowledge, threatened against the Company or
any of the Subsidiaries before the National Labor Relations Board, and no grievance or
arbitration proceeding arising out of or under collective bargaining agreements is pending or
threatened, (B) no labor dispute, slowdown or stoppage pending or, to the Company’s
knowledge, threatened against the Company or any of the Subsidiaries and (C) no union
representation dispute currently existing concerning the employees of the Company or any of
the Subsidiaries, and (iii) to the Company’s knowledge, (A) no union organizing activities
are currently taking place concerning the employees of the Company or any of the
Subsidiaries and (B) there has been no violation of any federal, state, local or foreign law
relating to discrimination in the hiring, promotion or pay of employees, any applicable wage
or hour laws or any provision of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”), or the rules and regulations promulgated thereunder concerning the
employees of the Company or any of the Subsidiaries;




     (w) except as would not, individually or in the aggregate, have a Material Adverse
Effect, none of the Company or any of the Subsidiaries has any liability for any prohibited
transaction or funding deficiency or any complete or partial withdrawal liability with
respect to any pension, profit sharing or other plan that is subject to ERISA to which the
Company or any of the Subsidiaries makes or ever has made a contribution and in which any
employee of the Company or any of the Subsidiaries is or ever has been a participant;




     (x) the Company and the Subsidiaries and their properties, assets and operations are in
compliance with, and hold all permits, authorizations and approvals required under,
Environmental Laws (as defined below), except to the extent that failure to so comply or to
hold such permits, authorizations or approvals would not, individually or in the aggregate,
have a Material Adverse Effect; except as would not, individually or in the aggregate, have
a Material Adverse Effect, there are no past, present or, to the Company’s knowledge,
reasonably anticipated future events, conditions, circumstances, activities, practices,
actions, omissions or plans that could reasonably be expected to give rise to any costs or
liabilities to the Company or the Subsidiaries under, or to interfere with or prevent
compliance by the Company or the Subsidiaries with, Environmental Laws; except as would not,
individually or in the aggregate, have a Material Adverse Effect, neither the Company nor
any of the Subsidiaries (i) is the subject of any investigation, (ii) has received any
notice or claim, (iii) is a party to or affected by any pending or, to the Company’s
knowledge, threatened action, suit or proceeding, (iv) is bound by any judgment, decree or
order or (v) has entered into any agreement, in each case relating to any alleged violation
of any Environmental Law or any



 









 





-11-



actual or alleged release or threatened release or cleanup
at any location of any Hazardous Materials (as defined below) (as used herein,
“Environmental Law” means any federal, state, local or foreign law, statute, ordinance,
rule, regulation, order, decree, judgment, injunction, permit, license, authorization or
other binding requirement, or common law, relating to health, safety or the protection,
cleanup or restoration of the environment or natural resources, including those relating to
the distribution, processing, generation, treatment, storage, disposal, transportation,
other handling or release or threatened release of Hazardous Materials, and “Hazardous
Materials” means any material (including, without limitation, pollutants, contaminants,
hazardous or toxic substances or wastes) that is regulated by or may give rise to liability
under any Environmental Law);


     (y) in the ordinary course of its business, the Company reviews the effect of the
Environmental Laws on its and its Subsidiaries’ business, operations and properties and
evaluates associated costs and liabilities (including, without limitation, any capital or
operating expenditures required for cleanup, closure of properties or compliance with the
Environmental Laws or any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties);




     (z) except as disclosed in the Registration Statement or the Prospectus, all material
tax returns required to be filed by the Company and each of the Subsidiaries have been
filed, and all taxes and other assessments of a similar nature (whether imposed directly or
through withholding) including any interest, additions to tax or penalties applicable
thereto due or claimed to be due from such entities have been paid, other than those being
contested in good faith and for which adequate reserves have been provided or those that are
individually and in the aggregate immaterial in amount and significance;




     (aa) the Company either directly or through one or more Subsidiaries maintains
insurance covering its and its Subsidiaries’ material properties, operations, personnel and
businesses as the Company deems adequate and as previously disclosed to the Underwriters;
such insurance insures against such losses and risks to an extent which is adequate in
accordance with customary industry practice to protect the Company and the Subsidiaries and
their businesses; all such insurance is fully in force on the date hereof and will be fully
in force at the time of purchase and any additional time of purchase;




     (bb) neither the Company nor any of the Subsidiaries has sustained since the date of
the last audited financial statements included in the Registration Statement and the
Prospectus any loss or interference with its respective business from fire, explosion, flood
or other calamity, whether or not covered by insurance;




     (cc) the Company has not sent or received any communication regarding termination of,
or intent not to renew, any of the contracts or agreements referred to or described in, or
filed as an exhibit to, the Registration Statement, and no such termination or non-renewal
has been threatened by the Company or, to the Company’s knowledge after due inquiry, any
other party to any such contract or agreement;





 









 





-12-



     (dd) the Company and the Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance
with management’s general or specific authorization; (ii) transactions are recorded as
necessary to permit preparation of the Company’s financial statements on a consolidated
basis in conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences;




     (ee) the Company has established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act); such
disclosure controls and procedures are designed to ensure that material information
relating to the Company, including its consolidated subsidiaries, is made known to the
Company’s Chief Executive Officer and its Chief Financial Officer by others within those
entities, and such disclosure controls and procedures are effective to perform the functions
for which they were established; the Company’s independent auditors and the Audit Committee
of the Board of Directors have been advised of: (i) any significant deficiencies in the
design or operation of internal controls which could adversely affect the Company’s ability
to record, process, summarize, and report financial data; and (ii) any fraud, whether or not
material, that involves management or other employees who have a role in the Company’s
internal controls; any material weaknesses in internal controls have been identified for the
Company’s auditors; and since the date of the most recent evaluation of such disclosure
controls and procedures, there have been no significant changes in internal controls or in
other factors that could significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material weaknesses;




     (ff) the Company has provided you true, correct, and complete copies of all
documentation pertaining to any extension of credit in the form of a personal loan made,
directly or indirectly, by the Company to any director or executive officer of the Company,
or to any family member or affiliate of any director or executive officer of the Company; in
either case that was outstanding on July 30, 2002; and since July 30, 2002, the Company has
not, directly or indirectly, including through any subsidiary: (i) extended credit, arranged
to extend credit, or renewed any extension of credit, in the form of a personal loan, to or
for any director or executive officer of the Company, or to or for any family member or
affiliate of any director or executive officer of the Company; or (ii) made any material
modification, including any renewal thereof, to any term of any personal loan to any
director or executive officer of the Company, or any family member or affiliate of any
director or executive officer, which loan was outstanding on July 30, 2002;




     (gg) any statistical and market-related data included in the Registration Statement and
the Prospectus are based on or derived from sources that the Company believes to be reliable
and accurate, and the Company has obtained the written consent to the use of such data from
such sources to the extent required;





 









 





-13-



     (hh) neither the Company nor any of the Subsidiaries nor, to the Company’s knowledge
after due inquiry, any employee or agent of the Company or the Subsidiaries has made any
payment of funds of the Company or the Subsidiaries or received or retained any funds in
violation of any law, rule or regulation, which payment, receipt or retention of funds is of
a character required to be disclosed in the Registration Statement or the Prospectus;




     (ii) neither the Company nor any of the Subsidiaries nor any of their respective
directors, officers, affiliates or controlling persons has taken, directly or indirectly,
any action designed, or which has constituted or might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the Shares;




     (jj) to the Company’s knowledge after due inquiry, there are no affiliations or
associations between any member of the NASD and any of the Company’s officers, directors or
5% or greater securityholders, except as set forth in the Registration Statement and the
Prospectus;




     (kk) neither the Company nor any of its Subsidiaries has violated any provision of the
Foreign Corrupt Practices Act of 1977, as amended, or the rules and regulations promulgated
thereunder;




     (ll) neither the Company nor any Subsidiary is a party to a letter of intent or similar
instrument or any binding agreement that contemplates an acquisition, disposition, transfer
or sale of the assets (as a going concern) or capital stock of the Company or of any
Subsidiary or business unit or any similar business combination transaction which would be
material to the Company and its Subsidiaries taken as a whole;




     (mm) there is no failure on the part of the Company or any of the Subsidiaries or on
the part of any of the Company’s or the Subsidiaries’ directors or officers, in their
capacities as such, to comply in all material respects, with any applicable provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection
therewith; and




     (nn) based on the evaluation of its internal control over financial reporting, the
Company believes that it will be in material compliance, on a timely basis, with Section
404, entitled “Management’s Assessment of Internal Controls,” of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection therewith.



          In addition, any certificate signed by any officer of the Company or any of the Subsidiaries
and delivered to the Underwriters or counsel for the Underwriters in connection with the offering
of the Shares shall be deemed to be a representation and warranty by the Company or Subsidiary, as
the case may be, as to matters covered thereby, to each Underwriter.



     4. Certain Covenants of the Company. The Company hereby agrees:




     (a) to furnish such information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or blue sky laws of such
states


 









 





-14-





or other jurisdictions as you may designate and to maintain such qualifications in
effect so long as you may request for the distribution of the Shares; provided that
the Company shall not be required to qualify as a foreign corporation or to consent to the
service of process under the laws of any such jurisdiction (except service of process with
respect to the offering and sale of the Shares); and to promptly advise you of the receipt
by the Company of any notification with respect to the suspension of the qualification of
the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose;




     (b) to make available to the Underwriters in New York City, as soon as practicable
after the Registration Statement becomes effective, and thereafter from time to time to
furnish to the Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments or supplements thereto
after the effective date of the Registration Statement) as the Underwriters may
reasonably request for the purposes contemplated by the Act; in case any Underwriter is
required to deliver a prospectus after the nine-month period referred to in Section 10(a)(3)
of the Act in connection with the sale of the Shares, the Company will prepare, at its
expense, promptly upon request such amendment or amendments to the Registration Statement
and the Prospectus as may be necessary to permit compliance with the requirements of Section
10(a)(3) of the Act;




     (c) if, at the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or any post-effective amendment thereto to be declared effective
before the offering of the Shares may commence, the Company will endeavor to cause the
Registration Statement or such post-effective amendment to become effective as soon as
possible and the Company will advise you promptly and, if requested by you, will confirm
such advice in writing, (i) when the Registration Statement and any such post-effective
amendment thereto has become effective, and (ii) if Rule 430A under the Act is used, when
the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the
Company agrees to file in a timely manner under such Rule);




     (d) for so long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares, to advise you promptly, confirming such advice in writing,
of any request by the Commission for amendments or supplements to the Registration Statement
or the Prospectus or for additional information with respect thereto, or of notice of
institution of proceedings for, or the entry of a stop order, suspending the effectiveness
of the Registration Statement and, if the Commission should enter a stop order suspending
the effectiveness of the Registration Statement, to use its best efforts to obtain the
lifting or removal of such order as soon as possible; and to advise you promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus, including by
filing any documents that would be incorporated therein by reference, and to provide you and
Underwriters’ counsel copies of any such documents for review and comment a reasonable
amount of time prior to any proposed filing and to file no such amendment or supplement to
which you shall object in writing;






 









 





-15-




     (e) subject to Section 4(d) hereof, to file promptly all reports and any definitive
proxy or information statement required to be filed by the Company with the Commission in
order to comply with the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the offering or sale of
the Shares; to provide you with a copy of such reports and statements and other documents to
be filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act during such
period a reasonable amount of time prior to any proposed filing, and to promptly notify you
of such filing;




     (f) to advise the Underwriters promptly of the happening of any event within the time
during which a prospectus relating to the Shares is required to be delivered under the Act
which could require the making of any change in the Prospectus then being used so that the
Prospectus would not include an untrue statement of material fact or omit to state a
material fact necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading, and, during such time, subject to Section 4(d)
hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such
amendments or supplements to such Prospectus as may be necessary to reflect any such change;




     (g) to make generally available to its security holders, and to deliver to you, an
earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the
Act) covering a period of twelve months beginning after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably
practicable after the termination of such twelve-month period, but no later than the last
day of the period within which the Company is first required to file a periodic report under
the Exchange Act following the first anniversary of such effective date, which periodic
report is required to contain financial statements for the period including such first
anniversary (or, if the Company is not then subject to periodic reporting requirements under
the Exchange Act, the last day of the period within which the Company would be first
required to file such a periodic report, if the Company were then an accelerated filer (as
defined in Rule 12b-2 under the Exchange Act));




     (h) to furnish to its shareholders as soon as practicable after the end of each fiscal
year an annual report (including a consolidated balance sheet and statements of income,
shareholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year,
accompanied by a copy of the certificate or report thereon of nationally recognized
independent certified public accountants);




     (i) to furnish to you three (3) copies of the Registration Statement, as initially
filed with the Commission, and of all amendments thereto (including all exhibits thereto and
documents incorporated by reference therein) and sufficient copies of the foregoing (other
than exhibits) for distribution of a copy to each of the other Underwriters;




     (j) to furnish to you promptly and, upon request, to each of the other Underwriters for
a period of five years from the date of this Agreement (i) copies of any reports or other
communications which the Company shall send to its shareholders or shall from time to time


 










 






-16-



publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports
filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be
designated by the Commission, (iii) copies of documents or reports filed with any national
securities exchange on which any class of securities of the Company is listed, and (iv) such
other information as you may reasonably request regarding the Company or the Subsidiaries;




     (k) to furnish to you as early as practicable prior to the time of purchase and any
additional time of purchase, as the case may be, but not later than two business days prior
thereto, a copy of the latest available unaudited interim and monthly consolidated financial
statements, if any, of the Company and the Subsidiaries which have been read by the
Company’s independent certified public accountants, as stated in their letter to be
furnished pursuant to Section 6(c) hereof;




     (l) to apply the net proceeds from the sale of the Shares in the manner set forth under
the caption “Use of Proceeds” in the Prospectus;





     (m) to pay all costs, expenses, fees and taxes in connection with (i) the
preparation and filing of the Registration Statement, each Preliminary Prospectus, the
Prospectus, and any amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including costs of mailing and
shipment), (ii) the registration, issue, sale and delivery of the Shares including any stock
or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of
the Shares to the Underwriters, (iii) the producing, word processing and/or printing of this
Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers of Attorney
and any closing documents (including compilations thereof) and the reproduction and/or
printing and furnishing of copies of each thereof to the Underwriters and (except closing
documents) to dealers (including costs of mailing and shipment), (iv) the qualification of
the Shares for offering and sale under state or foreign laws and the determination of their
eligibility for investment under state or foreign law as aforesaid (including the reasonable
legal fees (up to a maximum of $5,000) and filing fees and other disbursements of counsel
for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or
legal investment surveys to the Underwriters and to dealers, (v) any listing of the Shares
on any securities exchange or qualification of the Shares for quotation on NASDAQ and any
registration thereof under the Exchange Act, (vi) any filing for review of the public
offering of the Shares by the NASD, including the legal fees and filing fees and other
disbursements of counsel to the Underwriters, (vii) the fees and disbursements of any
transfer agent or registrar for the Shares, (viii) the costs and expenses of the Company
relating to presentations or meetings undertaken in connection with the marketing of the
offering and sale of the Shares to prospective investors and the Underwriters’ sales forces,
including, without limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in connection with the road show
presentations, travel, lodging and other expenses incurred by the officers of the Company
and any such consultants, and the cost of any aircraft chartered in connection with the road
show, and (ix) the performance of the Company’s other obligations hereunder;






 









 





-17-



     (n) not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant
any option to purchase or otherwise dispose of or agree to dispose of, directly or
indirectly, any Common Stock or securities convertible into or exchangeable or exercisable
for Common Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common Stock, or file or cause
to be declared effective a registration statement under the Act relating to the offer and
sale of any shares of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common Stock for a period of 90
days after the date hereof (the “Lock-Up Period”), without the prior written consent of UBS,
except for (i) the registration of the Shares and the sales to the Underwriters pursuant to
this Agreement, (ii) issuances of Common Stock upon the exercise of options or warrants
disclosed as outstanding in the Registration Statement and the Prospectus, and (iii) the
issuance of employee stock options and restricted stock pursuant to equity compensation
plans described in the Registration Statement and the Prospectus, in each case that are not
exercisable and with respect to which restrictions do not lapse during the Lock-Up Period;
provided, however, that if: (x) during the period that begins on the
date that is 15 calendar days plus 3 business days before the last day of the Lock-Up
Period and ends on the last day of the Lock-Up Period, the Company issues an earnings
release or material news or a material event relating to the Company occurs; or (y) prior to
the expiration of the Lock-Up Period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the Lock-Up Period, the
restrictions imposed by this section shall continue to apply until the expiration of the
date that is 15 calendar days plus 3 business days after the date on which the issuance of
the earnings release or the material news or material event occurs; provided, however, this
paragraph will not apply if, within 3 days of the termination of the Lock-Up Period, the
Company delivers to UBS a certificate, signed by the Chief Financial Officer or Chief
Executive Officer of the Company, certifying on behalf of the Company that the Company’s shares of Common Stock are, as of the date of delivery of such certificate, “actively traded
securities,” as defined in Regulation M, 17 CFR 242.101(c)(1) and such notice shall be
delivered in accordance with Section 12 hereof;




     (o) to use its best efforts to cause the Common Stock to be listed on the New York
Stock Exchange;




     (p) to maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock; and




     (q) to file a registration statement pursuant to 462(b) of the Act to register such
additional number of shares of Common Stock as necessary to register all of the Shares.



          5. Reimbursement of Underwriters’ Expenses. If the Shares are not delivered for any
reason other than the termination of this Agreement pursuant to the fifth paragraph of Section 8
hereof or the default by one or more of the Underwriters in its or their respective obligations
hereunder, the Company shall, in addition to paying the amounts described in Section 4(m) hereof,
reim-


 









 





-18-




burse the Underwriters for all of their out-of-pocket expenses, including the reasonable fees
and disbursements of their counsel.




          6. Conditions of Underwriters’ Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and warranties on the
part of the Company on the date hereof, at the time of purchase and, if applicable, at the
additional time of purchase, the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:





     (a) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of Thomas D Singer, Esq., General Counsel of the
Company, addressed to the Underwriters, and dated the time of purchase or the additional
time of purchase, as the case may be, with reproduced copies for each of the other
Underwriters and in form and substance satisfactory to Skadden, Arps, Slate, Meagher & Flom
LLP, counsel for the Underwriters, stating that:




     (i) the Company is a corporation duly incorporated, validly existing and in
good standing under the laws of the Commonwealth of Pennsylvania and has the
corporate power and authority to execute and deliver the Agreement and to issue,
sell and
deliver the Shares to the Underwriters as provided therein, and to own, lease
and operate its properties and conduct its business as described in the Registration
Statement and the Prospectus;




     (ii) each Subsidiary is duly organized, validly existing and (other than the
Inactive Subsidiaries) in good standing (with respect to jurisdictions which
recognize such concept) under the laws of its jurisdiction of organization with the
power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus;




     (iii) the Company and each Subsidiary is duly qualified to do business as a
foreign corporation (or other applicable legal entity) and are in good standing in
each jurisdiction where the ownership or leasing of their properties or the conduct
of their business requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in the aggregate, have a
Material Adverse Effect;




     (iv) the Company has duly authorized, executed and delivered the Agreement;




     (v)
the Company has the authorized, and as of January 30, 2005 had
the outstanding, capitalization as set forth
under the caption “Capitalization” in the Prospectus; all of the issued and
outstanding shares of capital stock of the Company have been duly authorized and
validly issued, are fully paid and non-assessable and are free of statutory
preemptive rights and, to such counsel’s knowledge, contractual preemptive rights,
resale rights, rights of first refusal and, except as disclosed under


 









 





-19-



the caption
“Description of common stock” in the Prospectus, similar rights; the Shares are free
of statutory preemptive rights and, to such counsel’s knowledge, contractual
preemptive rights, resale rights, rights of first refusal and, except as disclosed
under the caption “Description of common stock” in the Prospectus, similar rights;
to the extent represented by certificates, the certificates for the Shares are in
due and proper form and the holders of the Shares will not be subject to personal
liability by reason of being such holders;




     (vi) the Shares have been duly authorized and validly issued and are fully paid
and non-assessable;




     (vii) all of the outstanding shares of capital stock or other ownership
interests of each of the Subsidiaries have been duly authorized and validly issued,
are fully paid and non-assessable and (except for security interests granted
pursuant to (A) that certain Domestic Pledge Agreement, dated as of September 23,
2003, by the Company and Gradall Industries, Inc. in favor of SunTrust Bank, and (B)
that certain Pledge Agreement, dated as of September 23, 2003, by the Company and
JLG International, LLC, in favor of SunTrust Bank) are owned by the Company either
directly or indirectly through one or more Subsidiaries subject to no security
interest, other encumbrance or adverse claims; and no options, warrants or other
rights to purchase, agreements or other obligations to issue or other rights to
convert any obligation into shares of capital stock or ownership interests in the
Subsidiaries are outstanding;




     (viii) The capital stock of the Company conforms as to legal matters to the
description thereof contained in the Prospectus under the caption “Description of
common stock”. The statements in the Prospectus under the captions “Description of
common stock,” insofar as such statements constitute summaries of the laws,
regulations, legal matters, agreements or other legal documents referred to therein,
are accurate in all material respects and fairly summarize the matters referred to
therein.




     (ix) the Registration Statement and the Prospectus (except as to the financial
statements and schedules and other financial data contained therein, as to which
such counsel need express no opinion) comply as to form in all material respects
with the requirements of the Act; the documents incorporated by reference in the
Registration Statement and the Prospectus, at the time they became effective or were
filed with the Commission, complied as to form in all material respects with the
requirements of the Exchange Act (except as to the financial statements and
schedules and other financial data contained therein, as to which such counsel need
express no opinion);




     (x) the Registration Statement has been declared effective under the Act and,
to such counsel’s knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have been
instituted or threatened under the Act and any required filing of the Prospectus and


 









 





-20-





any supplement thereto pursuant to Rule 424 under the Act has been made in the
manner and within the time period required by such Rule 424;




     (xi) no consent, approval, authorization, or other action by or filing with any
governmental agency or instrumentality of the Commonwealth of Pennsylvania or the
United States of America is required on the part of the Company for the issuance of
the Shares and execution of the Agreement or the consummation of the transactions
contemplated thereby in accordance with the terms thereof, except (i) those already
obtained or made, and (ii) those required under State securities laws;




     (xii) the execution, delivery and performance of the Agreement, the issuance
and sale of the Shares and the consummation of the transactions contemplated hereby
will not conflict with, result in any breach or violation of or constitute a default
under (nor constitute any event which with notice, lapse of time or both would
result in any breach of or constitute a default under) (A) the charter or by-laws
(or similar organizational documents) of the Company or any of the Subsidiaries, (B)
any indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by which
any of them or any of their respective properties may be bound or affected
(collectively, “Contracts”), in each case that is filed or incorporated by reference
as an exhibit to the Registration Statement or any document that is
incorporated by reference in the Registration Statement or the Prospectus as of the date of such
opinion, (C) any other Contract, except as would not have a Material Adverse
Effect and would not materially adversely affect the Company’s ability to satisfy
its obligations under the Agreement, or (D) any federal, state, local or foreign
law, regulation or rule or any decree, judgment or order applicable to the Company
or any of the Subsidiaries;




     (xiii) to such counsel’s knowledge, (x) neither the Company nor any of the
Subsidiaries (other than the Inactive Subsidiaries) is in violation of its
respective charter or by-laws (or similar organizational documents) and (y) except
for such breaches, violations or defaults as would not, individually or in the
aggregate, have a Material Adverse Effect, neither the Company nor any of the
Subsidiaries is in breach or violation of or in default under (nor has any event
occurred which with notice, lapse of time or both would result in any breach of,
constitute a default under or give the holder of any indebtedness (or a person
acting on such holder’s behalf) the right to require the repurchase, redemption or
repayment of all or a part of such indebtedness under) any indenture, mortgage, deed
of trust, bank loan or credit agreement or other evidence of indebtedness; any
license, lease, contract or other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which any of them or any of their
properties may be bound or affected, or with respect to the Inactive Subsidiaries,
their respective charter or by-laws (or similar organizational documents); or any
federal, state, local or foreign law, regulation or


 









 





-21-





rule or any decree, judgment or
order applicable to the Company or any of the Subsidiaries;




     (xiv) to such counsel’s knowledge, there are no affiliate transactions,
off-balance sheet transactions, contracts, licenses, agreements, leases or documents
of a character which are required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement which have
not been so described or filed;




     (xv) to such counsel’s knowledge, there are no actions, suits, claims,
investigations or proceedings pending, threatened or contemplated to which the
Company or any of the Subsidiaries or any of their respective directors or officers
is a party or to which any of their respective properties is subject at law or in
equity, before or by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency which are required to be described in
the Registration Statement or the Prospectus but are not so described;




     (xvi) to such counsel’s knowledge, the Company and the Subsidiaries own or
possess adequate licenses or other rights to use all patents, trademarks, service
marks, trade names, copyrights and know-how necessary to conduct the businesses now
or proposed to be operated by them as described in the Registration Statement and
the Prospectus, and none of the Company or the Subsidiaries has received any notice
of infringement of or conflict with asserted rights of others with respect to any
patents, trademarks, service marks, trade names, copyrights and
know-how that, if such assertions of infringement or conflict were sustained, would have a Material
Adverse Effect;




     (xvii) the information in the Registration Statement and the Prospectus under
the headings “Risk factors—Risks related to our business— We are significantly
leveraged and our credit facilities impose operating and financial limitations,”
“Risk factors—Risks related to our business— Increased or unexpected warranty claims
could adversely affect us,” and “Risk factors—Risks related to this offering and our
common stock—Provisions in our organizational documents and outstanding debt
instruments may make it difficult for someone to acquire our Company,” insofar as
such statements constitute a summary of certain terms of documents or matters of
law, and those statements in the Registration Statement and the Prospectus that are
descriptions of contracts, agreements or other legal documents or of legal
proceedings, or refer to statements of law or legal conclusions, in each case, are
accurate in all material respects and present fairly the information required to be
shown; and




     (xviii) no person has the right, pursuant to the terms of any contract,
agreement or other instrument described in or filed as an exhibit to the
Registration Statement or otherwise known me, to cause the Company to register under
the Act any shares of Common Stock or shares of any other capital stock or other
equity



 









 





-22-



interest of the Company, or to include any such shares or interest in the
Registration Statement or the offering contemplated thereby, whether as a result of
the filing or effectiveness of the Registration Statement or the sale of the Shares
as contemplated thereby or otherwise;




     In addition, such counsel shall state that such counsel has participated in conferences
with officers and other representatives of the Company, representatives of the independent
public accountants of the Company and representatives of the Underwriters at which the
contents of the Registration Statement and the Prospectus were discussed and, although such
counsel is not passing upon and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration Statement or the
Prospectus (except as and to the extent stated in subparagraphs (viii) and (xvii) above), on
the basis of the foregoing nothing has come to such counsel’s attention that causes such
counsel to believe that the Registration Statement or any amendment thereto at the time such
Registration Statement or amendment became effective (or, if later, at the time of filing of
the Company’s most recent annual report on Form 10-K) 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, or that the Prospectus or any supplement
thereto at the date of such Prospectus or such supplement, and at the time of purchase or
the additional time of purchase, as the case may be, 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, in light of the circumstances under which they were made,
not misleading (it being understood that such counsel expresses no opinion with respect to
the financial statements and schedules and other financial data included in the Registration
Statement or the Prospectus).




     (b) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of Covington & Burling, outside counsel for the
Company, addressed to the Underwriters, and dated the time of purchase or the additional
time of purchase, as the case may be, with reproduced copies for each of the other
Underwriters and in form and substance satisfactory to Skadden, Arps, Slate, Meagher & Flom
LLP, counsel for the Underwriters, stating that:




(i) the Company is a corporation duly incorporated, validly existing and in
good standing under the laws of the Commonwealth of Pennsylvania and has the
corporate power and authority to execute and deliver the Agreement and to issue,
sell and deliver the Shares to the Underwriters as provided therein, and to own,
lease and operate its properties and conduct its business as described in the
Prospectus;




(ii) each of the Significant Subsidiaries is a corporation, duly incorporated
and validly existing under the laws of its jurisdiction of incorporation;




(iii) the Company has duly authorized, executed and delivered the Agreement;




(iv) the authorized capital stock of the Company is as set forth under the
caption “Capitalization” in the Prospectus; and the authorized capital stock of the
Company


 









 





-23-





conforms in all material respects as to legal matters to the description
thereof contained in the Prospectus under the caption “Description of common stock”.
The statements in the Prospectus under the captions “Description of common stock”
and “Certain United States federal tax considerations to non-U.S. Holders”, insofar
as such statements constitute summaries of the laws, regulations, legal matters,
agreements or other legal documents referred to therein, are accurate in all
material respects and fairly summarize the matters referred to therein.




(v) the Shares have been duly authorized and validly issued and are fully paid
and non-assessable, and are free of any statutory preemptive rights,
any preemptive rights contained in the Company’s articles of
incorporation or bylaws, and, to such
counsel’s knowledge, contractual preemptive rights or similar rights that entitle or
will entitle any person to acquire from the Company any other shares of capital
stock of the Company upon issuance of the Shares by the Company;




(vi) all of the outstanding shares of capital stock or other ownership
interests of each of the Significant Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable and are owned of record by the
Company or one or more Subsidiaries;




(vii) the Registration Statement and the Prospectus (except as to the financial
statements and schedules and other financial data contained therein, as to which
such counsel need express no opinion) comply as to form in all material respects
with the requirements of the Act; the documents incorporated by reference in the
Registration Statement and the Prospectus, at the time they became effective or were
filed with the Commission, complied as to form in all material respects with the
requirements of the Exchange Act (except as to the financial statements and
schedules and other financial data contained therein, as to which such counsel need
express no opinion);




(viii) the Registration Statement has been declared effective under the Act
and, to such counsel’s knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have been
instituted or threatened under the Act and any required filing of the Prospectus and
any supplement thereto pursuant to Rule 424 under the Act has been made in the
manner and within the time period required by such Rule 424;




(ix) no consent, approval, authorization, or other action by or filing with any
governmental agency or instrumentality of the Commonwealth of Pennsylvania, the
State of New York, or the United States of America is required on the part of the
Company for the issuance of the Shares and execution of the Agreement or the
consummation of the transactions contemplated thereby in accordance with the terms
thereof, except (i) those already obtained or made, and (ii) those required under
State securities laws;





 









 





-24


(x) the execution, delivery and performance of the Agreement, the issuance and
sale of the Shares and the consummation of the transactions contemplated hereby will
not conflict with, result in any breach or violation of or constitute a default
under (nor constitute any event which with notice, lapse of time or both would
result in any breach of or constitute a default under) (A) the charter or by-laws
(or similar organizational documents) of the Company or any of the Significant
Subsidiaries, (B) any decree, judgment, order, indenture, mortgage, deed of trust,
bank loan or credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound or affected in each case that is filed or incorporated by
reference as an exhibit to the Registration Statement or any document that is
incorporated by reference in the Registration Statement or the Prospectus as of the
date of such opinion, (C) the Delaware General Corporation Law, the Pennsylvania
Business Corporation Law, the Maryland Corporations and Associations Code, the
Belgian Companies Act or (D) any United States or New York law, regulation or rule
known to us to which the Company or any of the Significant Subsidiaries is subject;




(xi) to such counsel’s knowledge, there are no agreements, contracts,
indentures, leases or other instruments that are required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that are not described or filed as required, as the case may
be;




(xii) to such counsel’s knowledge, there are no legal or governmental
proceedings pending or threatened in writing against the Company or to which the
Company or any of the Significant Subsidiaries, or any of their respective
properties is subject which are required to be described in the Registration
Statement or the Prospectus that are not described as required;




(xiii) the Company is not and, after giving effect to the offering and sale of
the Shares, will not be an “investment company” or an entity “controlled” by an
“investment company,” as such terms are defined in the Investment Company Act;




(xiv) the information in the Registration Statement and the Prospectus under
the headings “Risk factors—Risks related to our business— We are significantly
leveraged and our credit facilities impose operating and financial limitations,”
“Risk factors—Risks related to this offering and our common stock—Provisions in our
organizational documents and outstanding debt instruments may make it difficult for
someone to acquire our Company,” in each case insofar as such statements constitute
a summary of certain terms of documents or matters of law, are accurate in all
material respects; and




(xv) except
for the rights of the Underwriters under the Agreement with respect
to the Shares, no person has the right, pursuant to the terms of any contract, agreement
or other instrument described in or filed as an exhibit to the Registration
Statement or


 










 






-25-



otherwise known us, to cause the Company to register under the Act any shares of Common Stock or shares of any other capital stock or other equity interest
of the Company, or to include any such shares or interest in the Registration
Statement or the offering contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the Shares as
contemplated thereby or otherwise;




     In addition, such counsel shall state that, in accordance with such counsel’s
understanding with the Company as to the scope of its services in connection with the
offering of the Shares, as counsel to the Company, such counsel has reviewed the
Registration Statement and the Prospectus and participated in discussions with
representatives of the Underwriter and those of the Company, counsel to the Underwriters and
the Company’s accountants. Such counsel shall confirm to the Underwriters that, on the
basis of the information which was reviewed by such counsel in the course of the performance
of the services referred to above, considered in the light of such counsel’s understanding
of the applicable law and the experience such counsel has gained through its practice under
the Federal securities laws, such counsel shall confirm to the Underwriters that nothing
which came to the attention of such counsel in the course of such review has caused such
counsel to believe that the Registration Statement (other than the
registration statement filed pursuant to Rule 462(b) under the Act),
as of the date of the filing of the Company’s most recent annual
report on Form 10-K and, with respect to the registration statement
filed pursuant to Rule 462(b) under the Act, as of the date of such
registration statement, 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 or that the Prospectus, as of the date of the Prospectus Supplement or as at the
time or purchase or the additional time of purchase, as the case may be, contained or
contains any untrue statement of a material fact or omitted or omits to state any material
fact necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that counsel need express no opinion or belief with
respect to the financial statements, including the notes thereto, and the schedules and
other financial data included in the Registration Statement or the Prospectus. In addition,
such counsel may also state that they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration Statement or the
Prospectus, except as specified in paragraphs (iv) and (xiv) above.




     (c) You shall have received from Ernst & Young LLP letters dated, respectively,
the date of this Agreement, the time of purchase and, if applicable, the additional time of
purchase, and addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in the forms heretofore approved by UBS.




     (d) You shall have received at the time of purchase and, if applicable, at the
additional time of purchase, the favorable opinion of Skadden, Arps, Slate,
Meagher & Flom LLP, counsel for the Underwriters, dated the time of purchase or the
additional time of purchase, as the case may be, as to the matters referred to in the second
paragraph and subparagraphs (ix) and (x) of the first paragraph of subsection (a) of this
Section 6.




 









 





-26-



     (e) No Prospectus or amendment or supplement to the Registration Statement or the
Prospectus, including documents deemed to be incorporated by reference therein,
shall have been filed to which you object in writing.




     (f) The Registration Statement shall have become effective not later than 5:30 p.m. New
York City time on the date of this Agreement and, if Rule 430A under the Act is used, the
Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act
at or before 5:30 p.m., New York City time, on the second full business day after the date
of this Agreement.




     (g) Prior to the time of purchase, and, if applicable, the additional time of purchase,
(i) no stop order with respect to the effectiveness of the Registration Statement shall have
been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the Act;
(ii) the Registration Statement and all amendments thereto shall 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; and (iii) the Prospectus and all
amendments or supplements thereto shall 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, in the light of the circumstances under which they are made, not
misleading.




     (h) Between the time of execution of this Agreement and the time of purchase or the
additional time of purchase, as the case may be, no material adverse change or any
development involving a prospective material adverse change in the business, properties,
management, financial condition or results of operations of the Company and the Subsidiaries
taken as a whole shall occur or become known.




     (i) The Company will, at the time of purchase and, if applicable, at the
additional time of purchase, deliver to you a certificate of its Chief Executive Officer and
its Chief Financial Officer to the form attached as Exhibit B hereto.




     (j) You shall have received signed Lock-up Agreements referred to in Section 3(r)
hereof.




     (k) The Company shall have furnished to you such other documents and certificates as to
the accuracy and completeness of any statement in the Registration
Statement and the Prospectus as of the time of purchase and, if applicable, the additional time of
purchase, as you may reasonably request.




     (l) The Shares shall have been approved for listing on the New York Stock
Exchange, subject only to notice of issuance at or prior to the time of purchase or the
additional time of purchase, as the case may be.




     (m) The Company shall have delivered, or concurrently with the time of purchase shall
deliver, irrevocable notice to the trustee under the Indenture, dated as of June 17, 2002,
between the Company, the note guarantors party thereto and The Bank
of New York, as trus-


 









 








-27-


tee,
as amended (the “Indenture”), with respect to the Company’s 8 3/8% Senior Subordinated Notes
due 2012 (the “Notes”), of the Company’s election to redeem 35% of the aggregate principal
amount of such Notes in accordance with Article V of the Indenture and the provisions of
such Notes relating to “Optional Redemption upon Equity Offerings.”



     7. Effective Date of Agreement; Termination. This Agreement shall become effective
when the parties hereto have executed and delivered this Agreement.



          The obligations of the several Underwriters hereunder shall be subject to termination in the
absolute discretion of UBS or any group of Underwriters (which may include UBS) which has agreed to
purchase in the aggregate at least 50% of the Firm Shares, if (x) since the time of execution of
this Agreement or the earlier respective dates as of which information is given in the Registration
Statement and the Prospectus, there has been any material adverse change or any development
involving a prospective material adverse change in the business, properties, management, financial
condition or results of operations of the Company and the Subsidiaries taken as a whole, which
would, in UBS’ judgment or in the judgment of such group of Underwriters, make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in
the manner contemplated in the Registration Statement and the Prospectus, or (y) there shall have
occurred: (i) a suspension or material limitation in trading in securities generally on the New
York Stock Exchange, the American Stock Exchange or the NASDAQ; (ii) a suspension or material
limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general
moratorium on commercial banking activities declared by either federal or New York State
authorities or a material disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) an outbreak or escalation of hostilities or acts of terrorism
involving the United States or a declaration by the United States of a national emergency or war;
or (v) any other calamity or crisis or any change in financial, political or economic conditions in
the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in
UBS’ judgment or in the judgment of such group of Underwriters makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in
the manner contemplated in the Registration Statement and the Prospectus, or (z) there shall have
occurred any downgrading, or any notice or announcement shall have been given or made of (i) any
intended or potential downgrading or (ii) any watch, review or possible change that does not
indicate an affirmation or improvement, in the rating accorded any securities of or guaranteed by
the Company or any Subsidiary by any “nationally recognized statistical rating organization,” as
that term is defined in Rule 436(g)(2) under the Act.




          If UBS or any group of Underwriters elects to terminate this Agreement as provided in this
Section 7, the Company and each other Underwriter shall be notified promptly in writing.




          If the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement or if such sale is
not carried out because the Company shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this Agreement (except
to the extent provided in Sections 4(m), 5 and 9 hereof), and the Underwriters shall be under no
obligation or liability to the Company under this Agreement (except to the extent provided in
Section 9 hereof) or to one another hereunder.




 









 








-28-



     8. Increase in Underwriters’ Commitments. Subject to Sections 6 and 7 hereof, if any
Underwriter shall default in its obligation to take up and pay for the Firm Shares to be purchased
by it hereunder (otherwise than for a failure of a condition set forth in Section 6 hereof or a
reason sufficient to justify the termination of this Agreement under the provisions of Section 7
hereof) and if the number of Firm Shares which all Underwriters so defaulting shall have agreed but
failed to take up and pay for does not exceed 10% of the total number of Firm Shares, the
non-defaulting Underwriters shall take up and pay for (in addition to the aggregate number of Firm
Shares they are obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares
agreed to be purchased by all such defaulting Underwriters, as hereinafter provided. Such Shares
shall be taken up and paid for by such non-defaulting Underwriters in such amount or amounts as you
may designate with the consent of each Underwriter so designated or, in the event no such
designation is made, such Shares shall be taken up and paid for by all non-defaulting Underwriters
pro rata in proportion to the aggregate number of Firm Shares set opposite the names of such
non-defaulting Underwriters in Schedule A hereto.



          Without relieving any defaulting Underwriter from its obligations hereunder, the Company
agrees with the non-defaulting Underwriters that it will not sell any Firm Shares hereunder unless
all of the Firm Shares are purchased by the Underwriters (or by substituted Underwriters selected
by you with the approval of the Company or selected by the Company with your approval).




          If a new Underwriter or Underwriters are substituted by the Underwriters or by the Company for
a defaulting Underwriter or Underwriters in accordance with the foregoing provision, the Company or
you shall have the right to postpone the time of purchase for a period not exceeding five business
days in order that any necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.




          The term Underwriter as used in this Agreement shall refer to and include any Underwriter
substituted under this Section 8 with like effect as if such substituted Underwriter had originally
been named in Schedule A hereto.




          If the aggregate number of Firm Shares which the defaulting Underwriter or Underwriters agreed
to purchase exceeds 10% of the total number of Firm Shares which all Underwriters agreed to
purchase hereunder, and if neither the non-defaulting Underwriters nor the Company shall make
arrangements within the five business day period stated above for the purchase of all the Firm
Shares which the defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall terminate without further act or deed and without any liability on the part of the
Company to any non-defaulting Underwriter and without any liability on the part of any non-defaulting
Underwriter to the Company. Nothing in this paragraph, and no action taken hereunder, shall
relieve any defaulting Underwriter from liability in respect of any default of such Underwriter
under this Agreement.




     9. Indemnity and Contribution.




     (a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers and any person who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and the successors


 









 





-29-





and assigns of all of the foregoing persons, from and against any loss,
damage, expense, liability or claim (including the reasonable cost of investigation) which,
jointly or severally, any such Underwriter or any such person may incur under the Act, the
Exchange Act, the common law or otherwise, insofar as such loss, damage, expense, liability
or claim arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company) or in a
Prospectus (the term Prospectus for the purpose of this Section 9 being deemed to include
any Preliminary Prospectus, the Prospectus and the Prospectus as amended or supplemented by
the Company), or arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated in either such Registration Statement or such Prospectus
or necessary to make the statements made therein not misleading, except insofar as any such
loss, damage, expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in and in conformity with
information concerning such Underwriter furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use in such Registration Statement or
such Prospectus or arises out of or is based upon any omission or alleged omission to state
a material fact in connection with such information required to be stated in such
Registration Statement or such Prospectus or necessary to make such information not
misleading, (ii) any untrue statement or alleged untrue statement made by the Company in
Section 3 hereof or the failure by the Company to perform when and as required any agreement
or covenant contained herein, or (iii) any untrue statement or alleged untrue statement of
any material fact contained in any audio or visual materials provided by the Company or
based upon written information furnished by or on behalf of the Company including, without
limitation, slides, videos, films or tape recordings used in connection with the marketing
of the Shares.




     If any action, suit or proceeding (each, a “Proceeding”) is brought against an
Underwriter or any such person in respect of which indemnity may be sought against the
Company pursuant to the foregoing paragraph, such Underwriter or such person shall promptly
notify the Company in writing of the institution of such Proceeding and the Company shall
assume the defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
provided, however, that the omission to so notify the Company shall not
relieve the Company from any liability which the Company may have to any Underwriter or any
such person or otherwise, except, in the case of liabilities under this Agreement, to the
extent the Company is actually and materially prejudiced thereby. Such Underwriter or such
person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or of such person unless the employment of such counsel shall
have been authorized in writing by the Company in connection with the defense of such
Proceeding or the Company shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such Proceeding or such
indemnified party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from, additional to or in conflict with those
available to the Company (in which case the Company shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties), in any of which
events such



 









 





-30-



fees and expenses shall be borne by the Company and paid as incurred (it being
understood, however, that the Company shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified parties who are
parties to such Proceeding). The Company shall not be liable for any settlement of any
Proceeding effected without its written consent but if settled with the written consent of
the Company, the Company agrees to indemnify and hold harmless any Underwriter and any such
person from and against any loss or liability by reason of such settlement. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the indemnifying party agrees
that it shall be liable for any settlement of any Proceeding effected without its written
consent if (i) such settlement is entered into more than 60 business days after receipt by
such indemnifying party of the aforesaid request, (ii) such indemnifying party shall not
have fully reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days’ prior notice of its intention to settle. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any settlement of
any pending or threatened Proceeding 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 claims that are the subject matter of such Proceeding and does not include an
admission of fault, culpability or a failure to act, by or on behalf of such indemnified
party.




     (b) Each Underwriter severally agrees to indemnify, defend and hold harmless the
Company, its directors and officers, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which, jointly or
severally, the Company or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or claim arises
out of or is based upon any untrue statement or alleged untrue statement of a material fact
contained in and in conformity with information concerning such Underwriter furnished in
writing by or on behalf of such Underwriter to the Company expressly for use in the
Registration Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or in a Prospectus, or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with such information
required to be stated in such Registration Statement or such Prospectus or necessary to make
such information not misleading.




     If any Proceeding is brought against the Company or any such person in respect of which
indemnity may be sought against any Underwriter pursuant to the foregoing paragraph, the
Company or such person shall promptly notify such Underwriter in writing of the institution
of such Proceeding and such Underwriter shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify such Un-


 









 





-31-





derwriter shall not relieve such Underwriter from any liability which such
Underwriter may have to the Company or any such person or otherwise, except to the extent
such Underwriter is actually and materially prejudiced thereby. The Company or such person
shall have the right to employ its own counsel in any such case, but the fees and expenses
of such counsel shall be at the expense of the Company or such person unless the employment
of such counsel shall have been authorized in writing by such Underwriter in connection with
the defense of such Proceeding or such Underwriter shall not have, within a reasonable
period of time in light of the circumstances, employed counsel to defend such Proceeding or
such indemnified party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to or in conflict with those
available to such Underwriter (in which case such Underwriter shall not have the right to
direct the defense of such Proceeding on behalf of the indemnified party or parties, but
such Underwriter may employ counsel and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter), in any of which
events such fees and expenses shall be borne by such Underwriter and paid as incurred (it
being understood, however, that such Underwriter shall not be liable for the expenses of
more than one separate counsel (in addition to any local counsel) in any one Proceeding or
series of related Proceedings in the same jurisdiction representing the indemnified parties
who are parties to such Proceeding). No Underwriter shall be liable for any settlement of
any such Proceeding effected without the written consent of such Underwriter but if settled
with the written consent of such Underwriter, such Underwriter agrees to indemnify and hold
harmless the Company and any such person from and against any loss or liability by reason of
such settlement. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any Proceeding
effected without its written consent if (i) such settlement is entered into more than 60
business days after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified party shall have
given the indemnifying party at least 30 days’ prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened Proceeding 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 claims that are the subject matter of such
Proceeding.




     (c) If the indemnification provided for in this Section 9 is unavailable to an
indemnified party under subsections (a) and (b) of this Section 9 or insufficient to hold an
indemnified party harmless in respect of any losses, damages, expenses, liabilities or
claims referred to therein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the other hand from
the offering of the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law,


 









 





-32-





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 Company
on the one hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses, liabilities or claims, as well
as any other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be in the same
respective proportions as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, bear to the
aggregate public offering price of the Shares. The relative fault of the Company on the one
hand and of the Underwriters on the other shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the Company or by the
Underwriters and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, damages, expenses, liabilities and claims referred to in
this subsection shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to defend or defending
any Proceeding.




     (d) The Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in
subsection (c) above. Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the amount by which the total price
at which the Shares underwritten by such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damage which such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to
contribute pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.




     (e) The indemnity and contribution agreements contained in this Section 9 and the
covenants, warranties and representations of the Company contained in this Agreement shall
remain in full force and effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person (including each partner,
officer or director of such person) who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, or by or on behalf of the Company,
its directors or officers, or any person who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and shall survive any termination
of this Agreement or the issuance and delivery of the Shares. The Company and each
Underwriter agree promptly
 to notify each other of the commencement of any Proceeding against it and, in the case
of the Company, against any of the Company’s officers or directors in connection



 









 





-33-





with the
issuance and sale of the Shares or in connection with the Registration Statement or the
Prospectus.



     10. Information Furnished by the Underwriters. The statements set forth in the last
paragraph on the cover page of the Prospectus and the statements set forth in the sixth, fifteenth,
sixteenth, seventeenth, eighteenth, nineteenth and twentieth paragraphs under the caption
“Underwriting” in the Prospectus, insofar as such statements relate to (i) amounts of selling
concession and reallowance, (ii) over-allotment and stabilization and (iii) price stabilization and
short positions, constitute the only information furnished by or on behalf of the Underwriters as
such information is referred to in Sections 3 and 9 hereof.



     11. Intentionally Omitted



     12. Notices. Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing or by telegram or facsimile and, if to the Underwriters, shall
be sufficient in all respects if delivered or sent to UBS Securities LLC, 299 Park Avenue, New
York, New York 10171-0026, Attention: Syndicate Department; if to the Company, shall be sufficient
in all respects if delivered or sent to the Company at the offices of the Company at 13224
Fountainhead Plaza, Hagerstown, Maryland 21742, Attention: General Counsel.



     13. Governing Law; Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement
(“Claim”), directly or indirectly, shall be governed by, and construed in accordance with, the laws
of the State of New York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.



     14. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect thereto. The Company
hereby consents to personal jurisdiction, service and venue in any court in which any Claim arising
out of or in any way relating to this Agreement is brought by any third party against UBS or any
indemnified party. Each of UBS and the Company (on its behalf and, to the extent permitted by
applicable law, on behalf of its shareholders and affiliates) waives all right to trial by jury in
any action, proceeding or counterclaim (whether based upon contract, tort or otherwise) in any way
arising out of or relating to this Agreement. The Company agrees that a final judgment in any such
action, proceeding or counterclaim brought in any such court shall be conclusive and binding upon
the Company and may be enforced in any other courts to the jurisdiction of which the Company is or
may be subject, by suit upon such judgment.



     15. Parties at Interest. The Agreement herein set forth has been and is made solely
for the benefit of the Underwriters and the Company and to the extent provided in Section 9 hereof
the controlling persons, directors and officers referred to in such section, and their respective
successors, assigns, heirs, personal representatives and executors and administrators. No other
person, partner-



 









 





-34-




ship, association or corporation (including a purchaser, as such purchaser, from any of the
Underwriters) shall acquire or have any right under or by virtue of this Agreement.




     16. Counterparts. This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same agreement among the parties.



     17. Successors and Assigns. This Agreement shall be binding upon the Underwriters and
the Company and their successors and assigns and any successor or assign of any substantial portion
of the Company’s and any of the Underwriters’ respective businesses and/or assets.



     18. Miscellaneous. UBS, an indirect, wholly owned subsidiary of UBS AG, is not a bank
and is separate from any affiliated bank, including any U.S. branch or agency of UBS AG. Because
UBS is a separately incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBS are not deposits, are not insured by
the Federal Deposit Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.



 









 





-35-




     If the foregoing correctly sets forth the understanding among the Company and the
Underwriters, please so indicate in the space provided below for the purpose, whereupon this
agreement and your acceptance shall constitute a binding agreement among the Company and the
Underwriters, severally.


	 	 	 	 	 
	 	Very truly yours,


JLG INDUSTRIES, INC.

 	 
	 	By:  	 	 
	 	 	Name: 	 
	 	 	Title:  	 	 
	 




Accepted and agreed to as of the

date first above written, on

behalf of themselves and the other several

Underwriters named in Schedule A



UBS SECURITIES LLC

HARRIS NESBITT CORP.

SUNTRUST CAPITAL MARKETS, INC.



By: UBS SECURITIES LLC




	 	 	 	 	 
	By:
	 	 	 	 
	

	 	

	 	 
	

	 	Name:	 	 
	

	 	Title:	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	

	 	

	 	 
	

	 	Name:	 	 
	

	 	Title:	 	 







 










 






SCHEDULE A




	 	 	 	 	 
	 	 	Number of	 
	Underwriter	 	Firm Shares	 
	UBS SECURITIES LLC
	 	 	3,500,000	 
	SUNTRUST
CAPITAL MARKETS, INC.
	 	 	950,000	 
	HARRIS
NESBITT CORP.
	 	 	500,000	 
	NATCITY
INVESTMENTS, INC.
	 	 	50,000	 
	 
	 	 	 
	Total
	 	 	5,000,000	 
	 
	 	 	 






Schedule A, Page 1




 









 








SCHEDULE B




Significant Subsidiaries




	 	 	 	 	 	 
	 
	 	Significant Subsidiary	 	 	Jurisdiction of Organization	 
	 	Access Financial Solutions, Inc.

	 	 	Maryland	 
	 	Fulton International, Inc.

	 	 	Delaware	 
	 	JLG Equipment Services, Inc.

	 	 	Pennsylvania	 
	 	JLG Manufacturing Europe BVBA

	 	 	Belgium	 
	 	JLG OmniQuip, Inc.

	 	 	Delaware	 
	 





Schedule B, Page 1




 









 








SCHEDULE C




Directors and Officers




Roy V. Armes

Thomas P. Capo

W. Kim Foster

James A. Mezera

David L. Pugh

Stephen Rabinowitz

Raymond C. Stark

Thomas C. Wajnert

Charles O. Wood, III




William M. Lasky

James H. Woodward, Jr.

Peter L. Bonafede, Jr.

Wayne P. MacDonald

Craig E. Paylor

Phillip H. Rehbein

Thomas D. Singer




Schedule C, Page 1




 









 








Exhibit A




JLG Industries, Inc.




Common Stock




($0.20 Par Value)




February ___, 2005




UBS Securities LLC

Harris Nesbitt Corp.

SunTrust Capital Markets, Inc.

As Representatives of the several Underwriters



c/o UBS Securities LLC
      299
Park Avenue
      New
York, New York 10171



Ladies and Gentlemen:




          This Lock-Up Letter Agreement is being delivered to you in connection with the proposed
Underwriting Agreement (the “Underwriting Agreement”) to be entered into by JLG Industries,
Inc. , a Pennsylvania corporation (the “Company”), and you, as Representatives of the several
Underwriters named therein, with respect to the public offering (the “Offering”) of Common Stock,
par value $0.20 per share, of the Company (the “Common Stock”).



          In order to induce you to enter into the Underwriting Agreement, the undersigned agrees that
for a period (the “Lock-Up Period”) of 90 days after the date of the final prospectus supplement
relating to the Offering the undersigned will not, without the prior written consent of UBS, (i)
sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase
or otherwise dispose of or agree to dispose of, directly or indirectly, or file (or participate in
the filing of) a registration statement with the Securities and Exchange Commission (the
“Commission”) in respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder with
respect to, any Common Stock of the Company or any securities convertible into or exercisable or
exchangeable for Common Stock, or warrants or other rights to purchase Common Stock, (ii) enter
into any swap or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock,
whether any such transaction is to be settled by delivery of Common Stock or such other securities,
in cash or otherwise or (iii) publicly announce an intention to effect any transaction specified in
clause (i) or (ii). The foregoing sentence shall not apply to (a) bona fide gifts, provided the
recipient thereof agrees in writing with the



Exhibit A, Page 1




 









 







Underwriters to be bound by the terms of this Lock-Up
Letter Agreement and confirms that he, she or it has been in
compliance with the terms of this Lock-Up Letter Agreement since the date hereof or (b) dispositions to any
trust for the direct or indirect benefit of the undersigned and/or the immediate family of the
undersigned, provided that such trust agrees in writing with the Underwriters to be bound by the
terms of this Lock-Up Letter Agreement and confirms that it has been in compliance with the terms
of this Lock-Up Letter Agreement since the date hereof. In addition to the foregoing, during the
Lock-Up Period, if the undersigned is an executive officer of the Company, the undersigned may sell
without the prior written consent of UBS a number of shares of Common Stock reasonably calculated
to generate net proceeds in amount necessary to discharge tax obligations in excess of amounts
previously withheld resulting from (i) the vesting of restricted shares acquired by such executive
officer through the Company’s equity incentive plans or (ii) calendar year 2004 compensation from
the Company; provided, however, that the aggregate number of shares so sold pursuant to both
clauses (i) and (ii) by all such executive officers shall not exceed 220,000 shares in the
aggregate. Exercise of fixed price options under the Company’s equity compensation plans shall be
permitted without the prior written consent of UBS; provided, that, except as permitted in the
following paragraph, the undersigned shall continue to hold the shares received for the duration of
the Lock-up Period. Non-discretionary transfers also may be made out of the JLG Stock Fund of the
Company’s 401(k) Plan without the prior written consent of UBS; provided that during Lock-Up
Period, the undersigned shall not reduce the percentage of his 401(k) Plan account balance that is
allocated to the JLG Stock Fund.




          Any shares of Common Stock acquired after the date of this Lock-Up Letter Agreement, including
those received upon exercise of options granted to the undersigned will also be subject to this
Lock-Up Letter Agreement, except that the undersigned may sell without the prior written consent of
UBS shares of Common Stock received pursuant to exercise of any stock options granted under the
Company’s equity incentive plans that, if unexercised, would expire prior to December 31, 2005;
provided, however, that the aggregate number of such shares sold by the undersigned together with
other officers and directors of the Company during the Lock-Up Period shall not exceed 40,800 in
the aggregate.



          In addition, the undersigned hereby waives any rights the undersigned may have to require
registration of Common Stock in connection with the filing of a registration statement relating to
the Offering. The undersigned further agrees that, during the Lock-up Period, the undersigned will
not, without the prior written consent of UBS, make any demand for, or exercise any right with
respect to, the registration of Common Stock of the Company or any securities convertible into or
exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock.



          If: (a) during the period that begins on the date that is 15 calendar days plus 3 business
days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the
Company issues a earnings release or material news or a material event relating to the Company
occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of the Lock-Up Period,
the restrictions imposed by this letter shall continue to apply until the expiration of the date
that is 15 calendar days plus 3 business days after the date on which the issuance of the earnings


Exhibit A, Page 2




 









 







release or the material news or material event occurs; provided, however, this paragraph will not
apply if, within 3 days of the termination of the Lock-Up Period, the Company delivers to UBS a
certificate, signed by the Chief Financial Officer or Chief Executive Officer of the Company,
certifying on behalf of the Company that the shares of Common Stock are, as of the date of delivery
of such certificate, “actively traded securities,” as defined in Regulation M, 17 CFR 242.101(c)(1). Such notice shall be
delivered in accordance with Section 12 of the Underwriting Agreement.




          If (i) the Company notifies you in writing that it does not intend to proceed with the
Offering, (ii) the registration statement filed with the Securities and Exchange Commission with
respect to the Offering is withdrawn or (iii) for any reason the Underwriting Agreement shall be
terminated prior to the time of purchase (as defined in the Underwriting Agreement), this Lock-Up
Letter Agreement shall be terminated and the undersigned shall be released from its obligations
hereunder.



	 	 	 
	

	 	Yours very truly,
	 
	 	 
	

	 	 
	

	 	Name:






Exhibit A, Page 3




 









 








Exhibit B




Officers’ Certificate





	1.  	I have reviewed the Registration Statement and the Prospectus.
	 
	2.  	The representations and warranties of the Company as set forth in this Agreement are
true and correct as of the time of purchase and, if applicable, the additional time of
purchase.
	 
	3.  	The Company has performed all of its obligations under this Agreement as are to be
performed at or before the time of purchase and at or before the additional time of purchase,
as the case may be.
	 
	4.  	The conditions set forth in paragraphs (f), (g) and (h) of Section 6 of this Agreement
have been met.
	 
	5.  	The financial statements and other financial information included in the Registration
Statement and the Prospectus fairly present in all material respects the financial condition,
results of operations, and cash flows of the Company as of, and for, the periods presented in
the Registration Statement and the Prospectus.





Exhibit B, Page 1