EXHIBIT 2
AGREEMENT AND PROXY
THIS AGREEMENT AND PROXY (this "Agreement") is entered into as of May 9,
2001 by and between the Pension Benefit Guaranty Corporation (the "PBGC"), both
individually and on behalf of the Xxxxx-Xxxxxxxx Consolidated Pension Plan (the
"Plan"), AL-CH, L.P., a Delaware limited partnership ("AL-CH"), and the
shareholders (the "Shareholders") of OilQuip Rentals, Inc, a Delaware
corporation ("OilQuip"), named on Exhibit "A" hereto.
R E C I T A L S
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WHEREAS, A-C has entered into an Agreement and Plan of Merger (the "Merger
Agreement") with OilQuip which provides for a merger (the "Merger") of OilQuip
with and into a subsidiary of A-C in which A-C will issue to the Shareholders in
the aggregate 10,000,000 shares of the Common Stock of A-C (the "A-C Common
Stock"), 400,000 shares of which shall be issued on the Effective Date (as
defined in the Merger) and 9,600,000 of which shall be issued immediately
following the amendment of the certificate of incorporation of A-C to authorize
the issuance of such A-C Common Stock;
WHEREAS, the PBGC is the owner of 585,100 shares of the A-C Common Stock;
WHEREAS, AC-CH is the owner of 407,251 shares of the A-C Common Stock;
WHEREAS, the shareholders will be issued 400,000 shares of A-C Common Stock on
the Effective Date;
WHEREAS, it is a condition of OilQuip consummating the Merger Agreement that
each Shareholder, AL-CH and the PBGC (each, a "Grantor") execute and deliver
this Agreement to the Shareholders;
A G R E E M E N T
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NOW, THEREFORE, in consideration of the premises and of the mutual covenants
hereinafter set forth, and intending to be legally bound hereby, the parties
hereto hereby agree as follows (capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Merger Agreement):
1. Voting of Shares and Proxy.
(a) Until the Expiration Date (as defined in Section 5(n) below), at every
meeting of the stockholders of the A-C called, and at every adjournment thereof,
and on every action or approval by written consent of the stockholders of A-C,
each Grantor shall cause all Shares (as defined in Section 1(b) below)
beneficially owned by such Grantor to be voted: (i) in favor of ratification of
the Merger Agreement, (ii) in favor of the adoption and approval of the
amendment to the Certificate of Incorporation of A-C in the form
attached as Exhibit B (such changes as the Shareholders shall reasonably request
in order to comply with any technical filing requirements of the state of
Delaware) (iii) in favor of any other action in furtherance of the actions
described in subsections (i) and (ii), and (iv) as directed by the shareholders
on any action which could adversely impact the rights of the Shareholders to
receive the A-C Common Stock issuable pursuant to the Merger Agreement. Prior to
the Expiration Date, the Grantors shall not enter into any agreement or
understanding with any Person to vote or give instructions in any manner
inconsistent with the terms of this Section 1(a).
(b) "Shares" shall mean: (i) all securities of A-C (including all shares of
A-C Common Stock and all options, warrants and other rights to acquire such
securities) beneficially owned by the Grantors as of the date of this Agreement;
(ii) all shares of A-C Common Stock issued to the shareholders on the Effective
Date, and (iii) all additional securities of A-C (including all shares of A-C
Common Stock and all additional options, warrants and other rights to acquire
such securities) of which the Grantors acquire beneficial ownership during the
period from the date of this Agreement through the Expiration Date.
(c) Concurrently with the execution of this Agreement, the Grantors are
delivering to the Shareholders a proxy in the form attached hereto as Exhibit
"C" (the "Proxy"), which shall be irrevocable to the fullest extent permissible
by law but subject to termination as stated therein, with respect to the Shares.
2. Restrictions on Transfer of Shares Prior to the Effective Time.
(a) At all times commencing with the execution of this Agreement and until
the Expiration Date, the Grantors hereby agrees not to, directly or indirectly,
take any of the following actions, except in accordance with subsection (b) of
this Section 2.
(i) tender any of the Shares or any securities convertible into or
exchangeable or exercisable for the Shares to any Person;
(ii) sell, pledge, grant an option with respect to, transfer, assign,
pledge, hypothecate or otherwise dispose of any of the Shares or any securities
convertible into or exchangeable or exercisable for the Shares or any interest
therein, or enter into any commitment relating thereto; or
(iii) deposit, or permit the deposit of, any of the Shares into a new
voting trust or depositary facility or enter into a new voting agreement or
arrangement with respect to any Shares in contravention of the obligations of
the Grantors under this Agreement or grant any proxy (other than the Proxy) with
respect thereto or enter into any commitment relating thereto (any transaction
referred to in clause (i), (ii) or (iii) is hereinafter referred to as a
"Transfer").
(b) Notwithstanding subsection (a) above, the Grantors may take an action
described in subsection (a) if (i) the Shareholders shall give their prior
written consent to such action (which shall not be unreasonably withheld), (ii)
the proposed transferee shall have executed a counterpart of this Agreement and
the Proxy and shall have agreed to hold
such Shares or interest in such Shares subject to all of the terms and
provisions of this Agreement, and (iii) the current voting trust agreement to
which A-C is a party (the "AL-CU Voting Agreement") may be amended to extend its
termination on _______ date.
3. Representations and Warranties of the Grantors. Each Grantor hereby
represents and warrants and covenants (severally and not jointly) to the
Shareholders as follows:
(a) In the case of AL-CH and the PBGC, the Grantor is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization and has the requisite power and authority and all
necessary governmental approvals to own, lease and operate its properties and to
carry on its business as it is now being conducted, except where the failure to
be so organized, existing or in good standing or to have such power, authority
and governmental approvals would not prevent or delay the performance in any
respect by the Grantor of its obligations under this Agreement. Grantor has full
power and authority to make, enter into and carry out the terms of this
Agreement and the Proxy. In the case of AL-CH and the PBGC, the execution and
delivery of this Agreement and the Proxy and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate or other action on the part of the Grantor.
(b) Each of this Agreement and the Proxy has been duly executed and
delivered by or on behalf of the Grantor, and, subject to the execution of this
Agreement by the other parties hereto, constitutes the legal, valid and binding
obligation of the Grantor, enforceable against the Grantor in accordance with
its terms, except as may be limited by the effect of bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
conservatorship, arrangement, moratorium or other laws affecting or relating to
the rights of creditors generally and except as enforcement thereof is subject
to general principals of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law).
(c) The execution and delivery of this Agreement and the Proxy by the
Grantors does not, and the performance of this Agreement and the Proxy by the
Grantors will not, (i) conflict with or violate the Certificate of Incorporation
or By-laws or other similar constituent documents of the Grantor, (ii) conflict
with or violate any law, rule, regulation, order, judgment or decree applicable
to the Grantor or by which it or any of its properties is bound or affected, or
(iii) conflict with or result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to another party any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on the
Shares, pursuant to the AL-CH Voting Agreement or any other note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Grantor is a party or by which the
Grantor or any of its properties is bound or affected, except for any such
breaches, defaults or other occurrences that would not prevent or delay the
performance by the Grantor of its obligations under this Agreement.
(d) The Grantor is the registered and beneficial owner of the Shares
described in the Recitals hereto free and clear of any lien or encumbrance,
proxy or voting restriction other than pursuant to this Agreement and the AL-CH
Voting Agreement. Such Shares are all the securities of A-C owned of record or
beneficially by the Grantors on the date of this Agreement.
(e) The Grantor understands and acknowledges that the consummation of the
Merger Agreement by OilQuip will be effected (and that the Shareholder's consent
to the Merger was given) in reliance upon the Grantor's execution and delivery
of this Agreement and the Proxy.
4. Ownership of the Shares. Except as otherwise provided herein, all rights,
ownership and economic benefits of and relating to the Shares shall remain and
belong to the Grantors.
5. Miscellaneous.
(a) All notices, requests, demands, waivers and other communications
required or permitted to be given under this Agreement to any party hereunder
shall be in writing and deemed given upon (i) personal delivery, (ii)
transmitter's confirmation of a receipt of a facsimile transmission, (iii)
confirmed delivery by a standard overnight carrier or when delivered by hand or
(iv) when mailed in the United States by certified or registered mail, postage
prepaid, addressed at the following addresses (or at such other address for a
party as shall be specified by notice given hereunder):
if to Shareholders, to the addresses set forth on Exhibit "A" hereto to:
With a copy to:
Xxxxxx Xxxxxxxxx Xxxxx & Xxxxxxxx LLP
0000 00xx Xxxxxx, Xxxxx 0000 Xxxxx
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to the PBGC, to:
Pension Benefit Guaranty Corporation
c/o Pacholder Associates, Inc.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
If to AL-CH, to:
Nederlander Organization, Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxxx
Fax: 000 000-0000
with a copy to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxx
Fax: (000) 000-0000
(b) Whenever the words "include," "includes" or "including" are used in
this Agreement they shall be deemed to be followed by the words "without
limitation." As used in this Agreement, the term "affiliate" shall have the
meaning set forth in Rule 12b-2 promulgated under the Exchange Act.
(c) The article and section headings contained in this Agreement are solely
for the purpose of reference, are not part of the agreement of the parties
hereto and shall not in any way affect the meaning or interpretation of this
Agreement.
(d) Any provision of this Agreement may be amended or waived by the parties
hereto if, and only if, such amendment or waiver is in writing and signed, in
the case of an amendment, by the Grantors and the Shareholders or, in the case
of a waiver, by the party against whom the waiver is to be effective.
(e) Each of the parties hereto hereby acknowledges that (i) the
representations, warranties, covenants and restrictions set forth in this
Agreement are necessary, fundamental and required for the protection of the
Shareholders and to preserve for the Shareholders the benefits of the Merger;
(ii) such covenants relate to matters which are of a unique character that gives
each such representation, warranty, covenant and restriction a unique value; and
(iii) a breach of any such representation, warranty, covenant or restriction, or
any other term or provision of this Agreement, will result in irreparable harm
and damages to the Shareholders which cannot be adequately compensated by a
monetary award. Accordingly, the Shareholders and the Grantors hereby expressly
agree that in addition to all other remedies available at law or in equity, the
Shareholders shall be entitled, in addition to any other remedy they may have at
law or in equity, to the immediate remedy of specific performance, a temporary
and/or permanent restraining order, preliminary injunction or such other form of
injunctive or equitable relief as may be used by any court of competent
jurisdiction to restrain or enjoin any of the parties hereto from breaching any
representations, warranties, covenants or restrictions set forth in this
Agreement, or to specifically enforce the terms and provisions hereof. The
Grantors further agree that neither the Shareholders nor any other Person shall
be required to obtain, furnish or post any bond or similar instrument in
connection with or as a condition to obtaining any remedy referred to in this
Agreement, and the Grantors irrevocably waive any right they may have to require
the obtaining, furnishing or posting of any such bond or similar instrument. If
any legal action or other legal proceeding relating to this Agreement or the
enforcement of any provision of this Agreement is brought against the Grantors,
the prevailing party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements (in addition to any other relief to
which the prevailing party may be entitled).
(f) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
(g) This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware (regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof) as to all
matters, including matters of validity, construction, effect, performance and
remedies.
(h) If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated herein are not affected in any manner materially adverse to any
party hereto. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner.
(i) This Agreement, the AL-CH Voting Agreement, and the Proxy constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof and supersede all other prior agreements or understandings, both written
and oral, between the parties or any of them with respect to the subject matter
hereof and thereof.
(j) This Agreement may be signed in any number of counterparts, each of
which shall be deemed an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may be executed
by facsimile, and a facsimile signature shall have the same force and effect as
an original signature. This Agreement shall become effective when each party
hereto shall have received counterparts hereof signed by all of the other
parties hereto.
(k) The Grantors shall execute and deliver, and cause to be executed and
delivered, any additional certificates, instruments and other documents, and
take and cause to be taken any additional actions as the Shareholders may deem
necessary, to carry out and effectuate the purpose and intent of this Agreement.
(l) All actions and proceedings arising out of or relating to this
Agreement shall be heard and determined exclusively in any Delaware state or
federal court sitting in Newcastle County. The parties hereto hereby (i) submit
to the exclusive jurisdiction of any state or federal Court sitting in Newcastle
County for the purpose of any action arising out of or relating to this
Agreement brought by any party hereto, and (ii) irrevocably waive, and agree not
to assert by way of motion, defense, or otherwise, in any such action, any claim
that it is not subject personally to the jurisdiction of the above-named courts,
that its property is exempt or immune from attachment or execution, that the
action is brought in an inconvenient forum, that the venue of the action is
improper, or that this Agreement or the transactions contemplated hereby may not
be enforced
in or by any of the above-named courts.
(m) Any action to be taken by the Shareholders hereunder may be taken by
Shareholders representing a majority of the A-C Common Stock issued pursuant to
the Merger Agreement.
(n) This Agreement and the Proxy, and all obligations of the parties
hereunder and thereunder, shall terminate immediately, without any further
action being required, upon (i) any valid termination of the Merger Agreement
pursuant to its terms, (ii) the date A-C's Certificate of Incorporation is
amended as set forth in Section 1(a), and (iii) the date the Proxy is required
to terminate under the Delaware General Corporate Law, whichever First occurs
(the "Expiration Date").
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
PENSION BENEFIT GUARANTY CORPORATION
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Acting Chief Executive Officer
AL-CH COMPANY, L.P.
By: Q.E.N., Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxxxxx
President
STOCKHOLDERS
RER CORP
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: President
/s/ Munowar X. Xxxxxxxxxxxx
--------------------------------
Munowar X. Xxxxxxxxxxxx
/s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxx
------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxxxxx
------------------------------
Xxxx X. Xxxxxxxxx
COLEBROOKE INVESTMENT
By: /s/ Plaiderie Corporate Director
-----------------------------------
Name: Plaiderie Corporate Directors One Limited
Title: Director
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxx
