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[GRADALL LETTERHEAD]
EXHIBIT 2
November 3, 1997
JLG Industries, Inc.
1 JLG Drive
McConnellsburg, PA 17233-9533
Attention: Mr. Tom Singer
Vice President & General Counsel
Gentlemen:
In order to allow you to evaluate the possible acquisition (the "Proposed
Acquisition") of Gradall Industries, Inc. (the "Company"), we will deliver to
you, upon your execution and delivery to us of this letter agreement, certain
information about the properties and operations of the Company. All information
about the Company furnished by us or our Representatives (as defined below),
whether furnished before or after the date hereof, whether oral or written, and
regardless of the manner in which it is furnished, is referred to in this
letter agreement as "Proprietary Information". Propriety Information does not
include, however, information which (a) is or becomes generally available to the
public other than as a result of a disclosure by you or your Representatives,
(b) was available to you on a nonconfidential basis prior to its disclosure by
us or our Representatives or (c) becomes available to you on a nonconfidential
basis from a person other than us or our Representatives who is not otherwise
bound by a confidentiality agreement with us or any Representative of ours, or
is otherwise not under an obligation to us or any Representative of ours not to
transmit the information to you. As used in this letter agreement, the term
"Representative" means, as to any person, such person's affiliates and its and
their directors, officers, employees, agents, advisors (including, without
limitation, financial advisors, counsel and accountants) and controlling
persons. As used in this letter agreement, the term "person" shall be broadly
interpreted to include, without limitation, any corporation, company,
partnership, other entity or individual.
Except as required by law, unless otherwise agreed to in writing by us,
you agree (a) to keep all Proprietary Information confidential and not to
disclose or reveal any Proprietary Information to any person other than your
Representatives who are actively and directly participating in your evaluation
of the Proposed Acquisition or who otherwise need to know the Proprietary
Information for the purpose of evaluating the Proposed Acquisition and to cause
those persons to observe the terms of this letter agreement, (b) not to use
Proprietary Information for any purpose other than in connection with your
evaluation of the Proposed Acquisition or the consummation of the Proposed
Acquisition and (c) not to disclose to any person (other than those of your
Representatives who are actively and directly participating in your evaluation
of the Proposed Acquisition or who otherwise need to know for the purpose of
evaluating the Proposed Acquisition and, in the case of your Representatives,
whom you will cause to observe the terms of this letter agreement) any
information about the Proposed Acquisition, or the terms or conditions or any
other facts relating thereto, including, without limitation, the fact that
discussions are taking place with respect thereto or the status thereof, or the
fact that Proprietary
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Information has been made available to you or your Representatives. You will be
responsible for any breach of the terms of this letter agreement by you or your
Representatives.
In the event that you are requested pursuant to, or required by,
applicable law or regulation or by legal process to disclose any Proprietary
Information or any other information concerning the Company or the Proposed
Acquisition, you agree that you will provide us with prompt notice of such
request or requirement in order to enable us to seek an appropriate protective
order or other remedy, to consult with you with respect to our taking steps to
resist or narrow the scope of such request or legal process; provided that your
disclosure of any Proprietary Information pursuant to any such law, regulation
or legal process shall not be deemed a violation of this letter agreement. In
any such event you will use your reasonable best efforts to ensure that all
Proprietary Information and other information that is so disclosed will be
accorded confidential treatment.
You also agree that for a period of 18 months from the date of this letter
agreement, neither you nor any of your Representatives will, without the prior
written consent of the Company or its Board or Directors:
(a) acquire, offer to acquire, or agree to acquire, directly or
indirectly, by purchase or otherwise, any voting securities or direct
or indirect rights to acquire any voting securities of the Company or
any subsidiary thereof, or of any successor to or person in control of
the Company, or any assets of the Company or any subsidiary or
division thereof or of any such successor or controlling person;
(b) make or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" to vote (as such terms are used in the
rules of the Securities and Exchange Commission), or seek to advise or
influence any person or entity with respect to the voting of any
voting securities of the Company;
(c) form, join or in any way participate in a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in
connection with any of the foregoing; or
(d) request the Company or any of our Representatives, directly or
indirectly, to amend or waive any provision of this paragraph.
You will promptly advise the Company of any inquiry or proposal made to you
with respect to any of the foregoing.
If you determine that you do not wish to proceed with the Proposed
Acquisition, you will promptly advise us of that decision. In that case, or in
the event that we, in our sole discretion, so request or the Proposed
Acquisition is not consummated by you, you will, upon our request, promptly
deliver to us all Proprietary Information, including all copies,
reproductions, summaries, analyses or extracts thereof or based thereon in your
possession or in the possession of any Representative of yours.
You acknowledge that none of the Company, Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch") or our other Representatives and none of
the respective officers, directors, employees, agents or controlling persons of
Merrill Lynch or such other Representatives makes any express or implied
representation or warranty as to the accuracy or completeness of any
Proprietary Information, and you agree that none of such persons shall have any
liability to you or any of your Representatives relating to or arising from
your or their use of any Proprietary Information or for any errors therein or
omissions therefrom. You also agree that you are not entitled to rely on the
accuracy or completeness of any Proprietary Information and that you shall be
entitled to rely solely on such representations and warranties regarding
Proprietary Information as may be made to you in any final acquisition
agreement relating to the Proposed Acquisition, subject to the terms and
conditions of such agreement.
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You agree that, without our prior written consent, you will not for a
period of 18 months from the date hereof directly or indirectly solicit for
employment or employ any person who is now employed by us or any of our
subsidiaries and who is identified by you as a result of your evaluation or
otherwise in connection with the Proposed Acquisition; provided, however, that
you shall not be prohibited from employing any such person who contacts you on
his or her own initiative and without any direct or indirect solicitation by
you.
You agree that until a final acquisition agreement regarding the Proposed
Acquisition has been executed by you and us, neither we nor any of our
Representatives are under any legal obligation and shall have no liability to
you of any nature whatsoever with respect to the Proposed Acquisition by
virtue of this letter agreement or otherwise. You also acknowledge and agree
that (i) we and our Representatives may conduct the process that may or may
not result in the Proposed Acquisition in such manner as we, in our sole
discretion, may determine (including, without limitation, negotiating and
entering into a final acquisition agreement with any third party without notice
to you) and (ii) we reserve the right to change (in our sole discretion, at any
time and without notice to you) the procedures relating to our and your
consideration of the Proposed Acquisition (including, without limitation,
terminating all further discussions with you and requesting that you return all
Proprietary Information to us).
Without prejudice to the rights and remedies otherwise available to us,
you agree we shall be entitled to equitable relief by way of injunction or
otherwise if you or any of your Representatives breach or threaten to breach
any of the provisions of this letter agreement.
It is further understood and agreed that no failure or delay by us in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or privilege
hereunder.
This letter agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts executed in and
to be performed in that state.
Any assignment of this letter agreement by you without our prior written
consent shall be void.
Your obligations under this letter agreement shall be for three years from
your acceptance hereof.
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This letter agreement contains the entire agreement between you and us
concerning confidentiality of the Proprietary Information, and no modification
of this letter agreement or waiver of the terms and conditions hereof shall be
binding upon you or us, unless approved in writing by each of you and us.
Please confirm your agreement with the foregoing by signing and returning
to the undersigned the duplicate copy of this letter enclosed herewith.
GRADALL INDUSTRIES, INC.
By /s/ BARRY L. PHILLIPS
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Barry L. Phillips
President & Chief Executive Officer
Accepted and Agreed
as of the date
first written above:
By /s/ THOMAS SINGER
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Title Vice President & General Counsel
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Company JLG Industries, Inc.
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Gradall Industries, Inc.
February 23, 1999
CONFIDENTIAL
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JLG Industries Inc.
2 JLG Drive
McConnellsburg, PA 17233-9533
Attention: Mr. Tom Singer
Vice President and General Counsel
Ladies and Gentlemen:
We refer to the letter agreement entered into as of November 3, 1997 (the
"Confidentiality Letter") between Gradall Industries, Inc. ("Gradall") and JLG
Industries Inc. ("JLG") in connection with a possible acquisition of Gradall.
This letter agreement (the "Amendment") is to confirm our understanding with
respect to amending the Confidentiality Letter. Capitalized terms used and not
otherwise defined herein shall have the meanings given to them in the
Confidentiality Letter.
In consideration of continuing discussions between JLG and Gradall, the
parties hereby agree to amend the Confidentiality Letter to replace the term
"18 months" appearing on the first line of the second full paragraph on page 2
of the Confidentiality Letter and on the first line of page 3 with the term "30
months". Additionally, you hereby agree to amend the Confidentiality Letter to
replace the term "three years" appearing on the last line of page 3 of the
Confidentiality Letter with the term "four years".
Except as otherwise amended hereby, the Confidentiality Letter shall
remain in full force and effect, and that the terms and conditions of the
Confidentiality Letter shall each apply with respect to the Amendment.
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Please confirm that the foregoing correctly sets forth our agreement by
signing and returning to the undersigned the duplicate copy of this letter
agreement enclosed herewith.
Very truly yours,
GRADALL INDUSTRIES, INC.
By: /s/ Barry L. Phillips
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Barry L. Phillips
President & Chief Executive Officer
Accepted and Agreed
to as of the date first
above written:
JLG INDUSTRIES INC.
By /s/ THOMAS SINGER
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Vice President & General Counsel
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