Exhibit 50
May 20, 1999
Rental Service Corporation
0000 Xxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Gentlemen:
Reference is made herein to that certain letter agreement dated January 12,
1999 between NationsRent, Inc. ("NationsRent") and Rental Service Corporation
("RSC" and, together with NationsRent, the "Parties" and each a "Party"). This
letter amendment (this "Amendment") serves to amend and supplement the terms of
the above-referenced letter agreement (as so amended, the "Confidentiality
Agreement") as set forth herein. Capitalized terms used but not defined herein
shall have the meaning ascribed to such terms in the Confidentiality Agreement.
In consideration of the covenants and agreements herein set forth and for other
good and valuable consideration, the Parties hereby agree as follows:
1. As of the close of business on May 20, 1999 (the "Effective Time"),
each of the Parties shall be deemed to provide a demand to the other, pursuant
to the Confidentiality Agreement, for return of Evaluation Material (as defined
in the Confidentiality Agreement), which term is acknowledged by the Parties to
include all of the information described in the first paragraph of the
Confidentiality Agreement which is or has been exchanged for any purpose, not
solely with respect to the consideration of a possible transaction, it has
provided and the other Party agrees, within ten (10) business days, to fully
comply with such request, provided, however, that (i) notwithstanding the terms
of the Confidentiality Agreement, extracts and compilations may be destroyed
rather than returned, provided a written certification of the chief financial
officer of the recipient Party shall be provided as to such destruction to the
providing Party, (ii) the chief financial officer of the Party which received
the Evaluation Material shall on or before such tenth business day certify, in
writing, compliance in full with the demand under the Confidentiality Agreement
effected hereby, to the Party which provided the Evaluation Material, and (iii)
compliance with the demand under the Confidentiality Agreement effected hereby
may be suspended for any materials which, in the opinion of the receiving
party's outside counsel, may not be returned or destroyed due to pending
litigation, but in such circumstances such material shall be removed from the
receiving party's premises and escrowed solely in the office of such counsel
during such suspended period of compliance hereunder.
2. Subject to its obligations under applicable law, including under the
federal securities laws, each Party agrees that it will not, and will use its
best efforts to cause its respective directors, officers, representatives,
advisors (including but not limited to financial
advisors), attorneys, employees, agents, parents, subsidiaries, affiliated
persons and entities, predecessors, successors and assigns and heirs, executors
and administrators and all persons acting in concert with any such party (the
"Related Parties") not to, make or publish any statement (orally or in writing),
or instigate, assist or participate in the publication of any statement, which
would or could libel, slander or disparage (whether or not such disparagement
legally constitutes libel or slander) the other Party or its business or
operations, any of the other Party's corporate predecessors, subsidiaries or
affiliates or their respective businesses or operations, or any other Related
Party of such Party, in their capacity as such. In the event that either Party
or its respective Related Parties is compelled by its obligations under
applicable law to make a statement or take an action that is or may be deemed to
be otherwise prohibited by the preceding sentence, the Party so compelled shall,
to the extent legally permissible, provide the other Party, in advance of such
action or statement, with notice of the intended action or statement and consult
with the other Party in good faith. Notwithstanding the foregoing, any statement
made or action taken in reliance on the exception for obligations under
applicable law in this paragraph 2, which statement is or subsequently becomes
public, shall excuse the other party from future performance of the covenant
under this paragraph 2 after such publication.
3. In light of its receipt of material non-public information concerning
RSC prior to the Effective Time, NationsRent agrees that, for a period of nine
(9) months from the date of this Amendment (notwithstanding any earlier
termination of the Confidentiality Agreement and for such purposes, this
paragraph 3 shall be deemed to survive any such termination), unless
specifically invited in writing by RSC, neither NationsRent nor any of its
affiliates (as such term is defined under the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) or representatives will in any manner, directly
or indirectly, (1) effect or seek, offer or propose (whether publicly or
otherwise) to effect, or cause or participate in or in any way assist any other
person (including, without limitation, any holder of securities or other
interests in RSC to effect or seek, offer or propose (whether publicly or
otherwise) to effect or participate in, (i) any acquisition of any interest
(including, without limitation, any beneficial interest) in any securities,
indebtedness, businesses or assets of RSC, (ii) any tender or exchange offer,
merger or other business combination involving RSC, (iii) any recapitalization,
restructuring, reorganization, liquidation, dissolution or other extraordinary
transaction with respect to RSC, or (iv) any "solicitation" of "proxies" (as
such terms are used in the proxy rules of the Securities and Exchange
Commission) or consents to vote any voting securities of RSC, (2) form, join or
in any way participate in a "group" (as defined under the Exchange Act) in
connection with any of the actions set forth in clause (1) above, (3) otherwise
act, alone or in concert with others (including, without limitation, any holder
of securities or other interests in RSC), to seek representation on or to
control or influence the management, board of directors or policies of RSC or to
take any of the actions described in clause (1) above, (4) take any action which
might force RSC to make a public announcement regarding any of the types of
matters set forth in (1) above, or (5) enter into any discussions or
arrangements with any third party (including, without limitation, any holder of
securities or other interests in RSC) with respect to any of the foregoing.
NationsRent also agrees during such period not to request RSC (or its directors,
officers, employees or agents), directly or indirectly, to amend or waive any
provision of this paragraph (including this sentence). The limitations,
restrictions and covenants of this paragraph 3 shall not have an effect on
actions taken from and after such time (but after the date of this Amendment)
as RSC (a) provides material non-public information regarding RSC to any person
for the purpose of evaluating or making an Acquisition Proposal (as defined in
the Agreement and Plan of Merger, dated as of January 20, 1999, between RSC and
NationsRent) concerning RSC or (b) enters into a definitive agreement giving
effect to an Acquisition Proposal, notice of which agreement or disclosure shall
be provided to NationsRent promptly by RSC.
4. Any other term or provision of this Confidentiality Agreement that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions thereof or
affect the validity or enforceability of any of the terms or provisions thereof
in any other jurisdiction, and if any provision of the Confidentiality Agreement
is so broad as to be unenforceable, such provision shall be interpreted to be
only so broad as is enforceable; provided that, notwithstanding the foregoing
provisions of this paragraph 4, if any reformation of the Confidentiality
Agreement to cure any failure of validity or enforceability in accordance with
such provisions would so frustrate the intent and purposes of the Parties such
that a Party would not have entered into the Confidentiality Agreement as so
reformed, the severability provisions of this paragraph 4 shall not be applied
to cure any such failure.
[Signature page follows]
If the foregoing correctly sets forth the understanding between the
Parties, please acknowledge receipt of this Amendment and confirm your
acceptance of and agreement to the terms set forth herein by executing where
provided below and returning a copy of this Amendment. Your acceptance of the
terms and conditions of this Amendment shall constitute a binding agreement
between the Parties. Notwithstanding anything herein to the contrary, no
provision of the Confidentiality Agreement shall be amended, modified or
supplemented except as expressly set forth herein. This Amendment may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Very truly yours,
NATIONSRENT, INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Chief Executive Officer
AGREED TO AND ACCEPTED this
20th day of May, 1999:
RENTAL SERVICE CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President, Chief Financial
Officer, Secretary and Treasurer
