_______________________________
XTRA CORPORATION
_______________________________
SHAREHOLDERS' AGREEMENT
by and among
INTERPOOL, INC.,
ATLAS CAPITAL PARTNERS LLC,
APOLLO INVESTMENT FUND IV, L.P.
and
APOLLO OVERSEAS PARTNERS IV, L.P.
________________________________
Dated as of June 18, 1998
________________________________
SHAREHOLDERS' AGREEMENT
SHAREHOLDERS' AGREEMENT (this "Agreement"), dated as of June 18, 1998,
among INTERPOOL, INC., a Delaware corporation ("Interpool"), ATLAS CAPITAL
PARTNERS LLC, a Delaware limited liability company and an Affiliate of
Interpool ("Atlas"), Apollo Investment Fund IV, L.P., a Delaware limited
partnership ("Apollo Investment"), and Apollo Overseas Partners IV, L.P., a
Cayman Islands limited partnership ("Apollo Overseas" and, together with
Apollo Investment, "Apollo"), and such other persons to become parties to
this Agreement as described herein.
W I T N E S S E T H:
WHEREAS, pursuant to an Agreement and Plan of Merger and
Recapitalization, dated as of June 18, 1998 (the "Recapitalization
Agreement"), by and between XTRA Corporation, a Delaware corporation (the
"Company"), and WHEELS MergerCo LLC, a Delaware limited liability company
("MergerCo"), MergerCo will be merged with and into the Company (the
"Merger");
WHEREAS, the parties desire to execute this Agreement for the purposes
of, among other things, (i) establishing certain understandings with
respect to the election of Interpool's nominees to the Company's Board of
Directors, and (ii) limiting the manner and terms by which their shares of
Common Stock (as defined below) of the Company may be transferred;
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, the parties hereto hereby agree as
follows:
Section 1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Affiliate" means as to any Person (a) any Person which directly or
indirectly controls, is controlled by, or is under common control with such
Person, (b) any Person who is a director, officer, partner or principal of
such Person or of any Person which directly or indirectly controls, is
controlled by, or is under common control with such Person, and (c) any
individual who is a member of the immediate family of any Person described
in clause (a) or clause (b) above. For purposes of this definition,
"control" of a Person shall mean the power, direct or indirect, (i) to vote
or direct the voting of 5% or more of the Voting Stock of such Person or
(ii) to direct or cause the direction of the management and policies of
such Person whether by ownership of Common Stock, by contract or otherwise.
"Agreement" means this Agreement as in effect on the date hereof and
as hereafter from time to time amended, modified or supplemented in
accordance with the terms hereof.
"Board of Directors" means the Board of Directors of the Company as
from time to time hereafter constituted.
"By-Laws" means the By-Laws of the Company in effect on the date
hereof, substantially in the form of Exhibit A hereto, and as hereafter
further amended in accordance with the terms hereof and pursuant to
applicable law.
"Certificate of Incorporation" means the Certificate of Incorporation
of the Company as in effect on the date hereof, substantially in the form
of Exhibit B hereto, and as hereafter from time to time amended, modified,
supplemented or restated in accordance with the terms hereof and pursuant
to applicable law.
"Commission" means the Securities and Exchange Commission and any
successor commission or agency having similar powers.
"Common Stock" shall mean the common stock, par value $.50 per share,
of the Company.
"Exchange Act" means, as of any date, the Securities Exchange Act of
1934, as amended, or any similar Federal statute then in effect and
superseding such act, and any reference to a particular section thereof
shall include a reference to the comparable section, if any, of such
similar Federal statute, and the rules and regulations thereunder.
"Fair Market Value" means the fair market value of shares of Common
Stock as determined from time to time by the Board of Directors as
evidenced by a resolution thereof.
"Permitted Transferee" has the meaning specified in Section 3.2.
"Person" means an individual or a corporation, association,
partnership, limited liability company, joint venture, organization,
business, trust or any other entity or organization, including a government
or any subdivision or agency thereof.
"Pro Rata Portion" means, with reference to any Shareholder at any
time, a fraction, the numerator of which is the number of shares of Common
Stock then issued and outstanding and held by such Shareholder, and the
denominator of which is the aggregate number of shares of Common Stock then
issued and outstanding and held by the Shareholders taken together.
"Securities Act" means, as of any date, the Securities Act of 1933, as
amended, or any similar Federal statute then in effect and superseding such
act, and any reference to a particular section thereof shall include a
reference to the comparable section, if any, of any such similar Federal
statute, and the rules and regulations thereunder.
"Shareholder" means, (i) Atlas or Interpool, (ii) Apollo, (iii) any
other investor in the Company who becomes a party hereto (the "Other
Investors") and (iv) each Permitted Transferee who becomes a party to or
bound by the provisions of this Agreement in accordance with the terms
hereof, in each case for so long as such person continues to hold shares of
Common Stock.
"Subsidiary" means, as to any Person, another Person of which
outstanding Voting Stock having the power to elect a majority of the
members of the board of directors (or comparable body or authority
performing similar functions) of such other Person are at the time owned,
directly or indirectly through one or more intermediaries, or both, by such
first Person.
"Voting Stock" means the Common Stock or any other class or classes of
capital stock, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of corporate directors (or
Persons performing similar functions).
Section 2. Management.
Section 2.1. Board of Directors.
(a) Subject to the terms of this Agreement and the Certificate of
Incorporation and the By-Laws, Apollo agrees to vote its shares of Voting
Stock, for so long as Interpool or Atlas own, in the aggregate, more than
10% of the issued and outstanding Common Stock of the Company, for one
nominee chosen by Interpool to be elected as a director of the Company and,
for so long as Interpool or Atlas own, in the aggregate, 15% or more of the
issued and outstanding Common Stock of the Company, for two nominees chosen
by Interpool to be elected as directors of the Company (in either case, the
"Interpool Director" or "Interpool Directors," as the case may be).
(b) At the request of Interpool, Apollo agrees to vote its shares of
Voting Stock of the Company for the removal of any director designated by
Interpool upon the request of Interpool and shall not vote any of its
shares of Voting Stock of the Company for the removal of any director
designated by Interpool under any other circumstances. In the event that
any director is unwilling or unable (by reason of death, resignation or
otherwise) to serve as such or is removed in accordance with the terms of
this Section 2.1(b), then the Shareholders, prior to the transaction of any
other business by the Shareholders or the Board of Directors, shall elect
the successor or replacement to such director upon the nomination of the
person who designated such director.
Section 2.2. No Conflict with Agreement. Each Shareholder shall vote
its shares of voting Stock of the Company, and shall take all actions
necessary, to ensure that the Certificate of Incorporation and By-Laws do
not, at any time, conflict with the provisions of this Agreement.
Section 3. Transfers and Acquisitions of Common Stock.
Section 3.1. Restrictions on Transfer. Each Shareholder agrees that
such Shareholder will not, directly or indirectly, offer, sell, transfer,
assign or otherwise dispose of (or make any exchange, gift, assignment or
pledge of) (collectively, for purposes of Sections 3 and 4 only, a
"transfer") any of its shares of Common Stock that may be issued hereafter
to such Shareholder except as provided in Section 3.2. In addition to the
other restrictions contained in this Section 3, each Shareholder agrees
that it will not, directly or indirectly, transfer any of its shares of
Common Stock except as permitted under the Securities Act and other
applicable securities laws.
Section 3.2. Exceptions to Restrictions. The provisions of Section
3.1 shall not apply to any of the following transfers:
(a) Any transfer from Apollo to any Affiliate of Apollo.
(b) Any transfer from Interpool or Atlas to any Person more than 50%
of which based on an economic and voting basis is directly or indirectly
beneficially owned, within the meaning of Section 13d-3 of the Exchange
Act, by Xxxxxx Xxxxxxx, Xxxxx X. Xxxxxxxxx or Xxxxxx X. Xxxxxxxxx, either
individually or in the aggregate.
(c) Any transfer of shares of Common Stock in accordance with Section
4 hereof.
(d) Any transfer by Apollo to any third party as long as Section 4.2
is complied with to the extent required thereby.
(e) Any transfer by Interpool or Atlas after the third anniversary
hereof(provided that prior to any transfer, the Person to which such
transfer is to be made, agrees to be bound by Section 4.1).
The exceptions in clauses (a) and (b) above are subject to the condition
that each such Affiliate or other transferee referred to therein (each a
"Permitted Transferee") shall execute the agreement referred to in Section
3.3(b) hereof. The provisions of this Agreement shall be applied to the
shares of Common Stock acquired by any Permitted Transferee of a
Shareholder in the same manner and to the same extent as such provisions
were applicable to such shares of Common Stock in the hands of such
Shareholder. Any reference in this Agreement to Apollo shall be deemed to
include Apollo and its Permitted Transferees and any reference in this
Agreement to Interpool shall be deemed to include Interpool and its
Permitted Transferees.
No transfer of any shares of Common Stock to a Permitted Transferee shall
be effective unless such transfer is made (i) pursuant to an effective
registration statement under the Securities Act and is qualified under
applicable state securities or blue sky laws or (ii) without registration
under the Securities Act and qualification under applicable state
securities or blue sky laws, as a result of the availability of an
exemption from registration and qualification under such laws, and such
Shareholder shall have furnished to the Company a certificate or, if
reasonably requested by the Company, an opinion of counsel, in either case
reasonably satisfactory in form and substance to the Company and its
counsel, to that effect; provided, however, that no such certificate or
opinion of counsel shall be required in connection with a transfer of
shares of Common Stock pursuant to Sections 4.1 or 4.2 hereof and that such
opinion of counsel shall only be required in connection with a transfer of
shares of Common Stock pursuant to Sections 3.2 (a) or (b) hereof if, after
receiving a certificate, the Company reasonably requests that such opinion
of counsel be delivered.
Section 3.3. Endorsement of Certificates.
(a) Upon the execution of this Agreement, in addition to any other
legend that the Company may deem advisable under the Securities Act and
certain state securities laws, all certificates representing shares of
issued and outstanding shares of Common Stock that are subject to any of
the provisions of this Agreement shall be endorsed at all times as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO,
AND ARE TRANSFERABLE ONLY UPON COMPLIANCE WITH, THE PROVISIONS OF
A SHAREHOLDERS' AGREEMENT DATED AS OF JUNE 18, 1998, BETWEEN
CERTAIN OF THE COMPANY'S SHAREHOLDERS. A COPY OF THE ABOVE-
REFERENCED AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE
COMPANY.
(b) Except as otherwise expressly provided in this Agreement, all
certificates representing shares of Common Stock hereafter issued to or
acquired by any of the Shareholders or their successors or assigns shall
bear the legends set forth above, and the shares of Common Stock
represented by such certificates shall be subject to the applicable
provisions of this Agreement. The obligations of a party hereto shall be
binding upon any transferee to whom shares of Common Stock are transferred
by such party, whether or not such transfer is permitted under the terms of
this Agreement. Prior to consummation of any such transfer, such party
shall cause the transferee to execute an agreement in form and substance
reasonably satisfactory to the other parties hereto, providing that such
transferee shall be bound by and shall fully comply with the terms of this
Agreement. Prompt notice shall be given to the Company and each
Shareholder by the transferor of any transfer (whether or not to a
Permitted Transferee) of any shares of Common Stock.
Section 3.4. Improper Transfer. Any attempt to transfer or encumber
any shares of Common Stock other than in accordance with the terms of this
Agreement shall be null and void and neither the Company nor any transfer
agent of such securities shall give any effect to such attempted transfer
or encumbrance in its stock records.
Section 3.5. Restrictions on Purchase. Interpool agrees that, for a
period of two years from the effective time of the Merger, Interpool will
not, without the written consent of Apollo, acquire, directly or
indirectly, any shares of Common Stock (or any other shares of capital
stock) of the Company, whether in open market purchases, privately
negotiated transactions, brokerage transactions or otherwise, unless
Interpool shall have delivered to Apollo an opinion of the Company's
independent auditors to the effect that any such acquisition would not have
an adverse effect on the accounting treatment of the transactions
consummated under the Recapitalization Agreement, as contemplated under
Section 7.2(8) thereof.
Section 4. Drag-Along Rights; Tag-Along Rights.
Section 4.1. Drag-Along Rights.
(a) If Apollo approves or authorizes a sale or exchange, whether
directly or pursuant to a merger, consolidation or otherwise (the "Company
Sale"), of at least a majority of the then outstanding Common Stock in a
bona fide arm's-length transaction to a third party that is not an
Affiliate of Apollo or of the Company (an "Independent Third Party"), then
Apollo shall have the right, subject to all the provisions of this Section
4.1 (the "Drag-Along Right"), to require each of the other Shareholders to
(i) if such Company Sale is structured as a sale of stock, sell, transfer
and deliver or cause to be sold, transferred and delivered to such
Independent Third Party all shares of Common Stock owned by them or (ii) if
such Company Sale is structured as a merger, consolidation or other
transaction requiring the consent or approval of the Company's
shareholders, vote such Shareholder's shares of Voting Stock in favor
thereof, and otherwise consent to and raise no objection to such
transaction, and waive any dissenters' rights, appraisal rights or similar
rights that such Shareholder may have in connection therewith; and, in any
such event, except to the extent otherwise provided in subsection (c) of
this Section 4.1, each such other Shareholder shall agree to and shall be
bound by the same terms, provisions and conditions (including, without
limitation, provisions in respect of indemnification) in respect of the
Company Sale as are applicable to Apollo.
(b) If Apollo desires to exercise Drag-Along Rights, it shall give
written notice to the other Shareholders (the "Drag-Along Notice") of the
Company Sale, setting forth the name and address of the transferee, the
date on which such transaction is proposed to be consummated (which shall
be not less than 30 days after the date such Drag-Along Notice is given),
and the proposed amount and form of consideration and terms and conditions
of payment offered by such transferee, including, without limitation, the
material terms of any debt or equity securities proposed to be included as
part of such consideration, identifying the issuer or issuers thereof.
(c) The obligations of the Shareholders in respect of a Company Sale
under this Section 4.1 are subject to the satisfaction of the following
conditions: (i) upon the consummation of the Company Sale, the same form of
consideration and the same portion of the aggregate consideration realized
upon such Company Sale shall be paid or distributed in respect of each
share of Common Stock then issued and outstanding; (ii) if any Shareholder
is given an option as to the form and amount of consideration to be
received, each Shareholder will be given the same option; and (iii) each
Shareholder who holds then currently exercisable rights to acquire shares
of Common Stock will be given a reasonable opportunity to exercise such
rights prior to the consummation of the Company Sale and thereby to
participate in such sale as a holder of such Common Stock.
(d) Notwithstanding anything else in this Agreement to the contrary,
the rights provided in this Section 4.1 shall terminate when the Common
Stock is listed on a national stock exchange or quoted on the Nasdaq
National Market and has a public float of $100 million or more.
Section 4.2. Tag-Along Rights.
(a) Notwithstanding anything in this Agreement to the contrary,
except in the case of (i) transfers by Apollo to a Permitted Transferee
referred to in Section 3.2 (a) hereof, and (ii) transactions where Drag-
Along Rights are exercised pursuant to Section 4.1 hereof, Apollo shall
refrain from effecting any sale of 15% or more of the outstanding Common
Stock of the Company in any one transaction or a series of transactions
unless, prior to the consummation thereof, the other Shareholders shall
have been afforded the opportunity to join in such sale on a pro rata
basis, as hereinafter provided in this Section 4.2.
(b) Prior to consummation of such proposed sale, Apollo shall cause
the person or group that proposes to acquire such shares (the "Proposed
Purchaser") to offer in writing (the "Purchase Offer") to purchase shares
of Common Stock owned by the other Shareholders, such that the number of
shares of such Common Stock so offered to be purchased from the other
Shareholders shall be equal to the product obtained by multiplying the
aggregate number of shares of Common Stock proposed to be purchased by the
Proposed Purchaser by such other Shareholder's Pro Rata Portion. If the
Purchase Offer is accepted by any other Shareholder, then the number of
shares of Common Stock to be sold to the Proposed Purchaser by Apollo shall
be reduced by the aggregate number of shares of Common Stock to be
purchased by the Proposed Purchaser from such other Shareholder pursuant
thereto. Such purchase shall be made on the same terms and conditions as
the Proposed Purchaser shall have offered to purchase shares of Common
Stock to be sold by Apollo (net, in the case of any options, warrants or
rights, of any amounts required to be paid by the holder upon exercise
thereof). The other Shareholders shall have 20 days from the date of
receipt of the Purchase Offer during which to accept such Purchase Offer,
and the closing of such purchase shall occur within 30 days after such
acceptance or at such other time as the other Shareholders and the Proposed
Purchaser may agree.
(c) Notwithstanding anything else in this Agreement to the contrary,
the rights provided in this Section 4.2 shall terminate when the Common
Stock is listed on a national stock exchange or quoted on the Nasdaq
National Market and has a public float of $100 million or more.
Section 4.3. Pre-Sale Notification.
(a) If Apollo on the one hand, or Interpool and Atlas, on the other,
shall determine to sell shares of Common Stock to an unaffiliated third
party, the selling party shall notify the other party of the intentions to
sell at least fourteen days prior to entering into any definitive agreement
providing for the sale of such Common Stock to an unaffiliated third party.
(b) Notwithstanding anything else in this Agreement to the contrary,
the rights provided in this Section 4.3 shall terminate when either Apollo
or Interpool/Atlas owns less than 50% of the number of shares of Common
Stock owned by it as of the Effective Time (as defined in the
Recapitalization Agreement), as such numbers are appropriately adjusted for
stock splits, stock dividends or other similar transactions.
Section 5. Miscellaneous.
Section 5.1. Pro Rata Investment Right.
(a) If Apollo is offered the opportunity to purchase additional
shares of Common Stock and determines to accept such offer, Apollo will
take all steps that may be necessary to ensure that Interpool and Atlas are
given the opportunity to purchase on the same terms of Apollo a number of
shares of Common Stock such that if Interpool and Atlas accepted the offer,
each of Apollo, Interpool and Atlas would purchase shares of Common Stock
in proportion to their relative ownership interests in the Company.
(b) Notwithstanding anything else in this Agreement to the contrary,
the rights provided in this Section 5.1 shall terminate when the Common
Stock is listed on a national stock exchange or quoted on the Nasdaq
National Market and has a public float of $100 million or more.
Section 5.2. Ownership of Atlas. Interpool hereby represents that
Xxxxxx Xxxxxxx, Xxxxx X. Xxxxxxxxx and/or Xxxxxx X. Xxxxxxxxx, directly or
indirectly (through Interpool or otherwise), beneficially own, and will
beneficially own for at least three years after the date hereof, more than
50% of the economic and voting rights of Atlas.
Section 5.3. Confidentiality. All non-public or confidential
materials and information obtained by any Shareholder with respect to the
Company or its Subsidiaries, whether by reason of its nominee sitting on
the Company's Board of Directors or otherwise shall be kept confidential
and shall not be disclosed to any third party except (a) as has become
generally available to the public (other than through disclosure by such
Shareholder in contravention of this Agreement), (b) to such Shareholder's
directors, officers, trustees, partners, employees, agents, and
professional consultants on a need to know basis, (c) to any other holder
of shares of Common Stock, (d) to any Person to which such Shareholder
offers to sell or transfer any shares of Common Stock, provided that the
prospective transferee shall agree to be bound by the provisions of this
Section 5.3, (e) in any report, statement, testimony or other submission to
any governmental authority having or claiming to have jurisdiction over
such Shareholder, or (f) in order to comply with or otherwise any law,
rule, regulation, or order applicable to such Shareholder, or in response
to any summons, subpoena or other legal process or formal or informal
investigative demand issued to such Shareholder in the course of any
litigation, investigation or administrative proceeding.
Section 5.4. Successors and Assigns. Except as otherwise provided
herein, all the terms and provisions of this Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the
respective successors and assigns of the parties hereto. No Shareholder
may assign any of its rights hereunder to any Person other than a
transferee that has complied in all respects with the requirements of this
Agreement (including, without limitation, Section 3.3 hereof). The Company
may not assign any of its rights hereunder to any other Person. If any
transferee of any Shareholder shall acquire any shares of Common Stock in
any manner, whether by operation of law or otherwise, such shares shall be
held subject to all of the terms of this Agreement, and by taking and
holding such shares such Person shall be entitled to receive the benefits
of and be conclusively deemed to have agreed to be bound by and to comply
with all of the terms and provisions of this Agreement.
Section 5.5. Amendment and Modification; Waiver of Compliances;
Conflicts.
(a) This Agreement may be amended only by a written instrument duly
executed by all of the Shareholders. In the event of the amendment or
modification of this Agreement in accordance with its terms, the
Shareholders shall use their best efforts to cause the Board of Directors
to meet within 30 calendar days following such amendment or modification or
as soon thereafter as is practicable for the purpose of adopting any
amendment to the Certificate of Incorporation and By-Laws that may be
required as a result of such amendment or modification to this Agreement,
and, if required, proposing such amendments to the Shareholders entitled to
vote thereon, and the Shareholders agree to vote in favor of such
amendments.
(b) Except as otherwise provided in this Agreement, any failure of
any of the parties to comply with any obligation, covenant, agreement or
condition herein may be waived by the party entitled to the benefits
thereof only by a written instrument signed by the party granting such
waiver, but such waiver or failure to insist upon strict compliance with
such obligation, covenant, agreement or condition shall not operate as a
waiver of, or estoppel with respect to, any subsequent or other failure.
(c) In the event of any conflict between the provisions of this
Agreement and the provisions of any other agreement, the provisions of this
Agreement shall govern and prevail.
Section 5.6. Notices. All notices and other communications provided
for hereunder shall be in writing and delivered by hand or sent by first
class mail or sent by telecopy (with such telecopy to be confirmed promptly
in writing sent by first class mail), sent as follows:
(i) If to Apollo, addressed to:
c/o Apollo Management IV, L.P.
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Telecopy: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
(ii) If to Interpool or Atlas, addressed to:
Interpool, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
Atlas Capital Partners
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy (which copy shall not constitute notice) to:
Camhy Karlinsky & Xxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx XxXxxx
Telecopy: (000) 000-0000
or to such other address or addresses or telecopy number or numbers as any
of the parties hereto may most recently have designated in writing to the
other parties hereto by such notice. All such communications shall be
deemed to have been given or made when so delivered by hand or sent by
telecopy, or three business days after being so mailed.
Section 5.7. Entire Agreement; Governing Law.
(a) This Agreement and the other writings referred to herein or
delivered pursuant hereto which form a part hereof contain the entire
agreement among the parties hereto with respect to the subject transactions
contemplated hereby and supersede all prior oral and written agreements and
memoranda and undertakings among the parties hereto with regard to this
subject matter. The Company represents to the Shareholders that the rights
granted to the holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted or obligations accepted under any
other agreement (including the Certificate of Incorporation) to which the
Company is a party. Neither the Company nor any Subsidiary of the Company
will hereafter enter into any agreement with respect to its equity or debt
securities which is inconsistent with the rights granted to any Shareholder
under this Agreement without obtaining the prior written consent of the
Shareholder. This Agreement shall become effective at the Effective Time.
(b) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO THE CHOICE
OF LAW PRINCIPLES THEREOF).
Section 5.8. Injunctive Relief. The Shareholders acknowledge and
agree that a violation of any of the terms of this Agreement will cause the
Shareholders irreparable injury for which an adequate remedy at law is not
available. Therefore, the Shareholders agree that each Shareholder shall
be entitled to, an injunction, restraining order or other equitable relief
from any court of competent jurisdiction, restraining any Shareholder from
committing any violations of the provisions of this Agreement.
Section 5.9. Availability of Agreement. For so long as this
Agreement shall be in effect, this Agreement shall be made available for
inspection by any Shareholder upon request at the principal executive
offices of the Company.
Section 5.10. Headings. The section and paragraph headings contained
in this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
Section 5.11. Recapitalizations, Exchanges, Etc. Affecting the Shares
of Common Stock; New Issuances. The provisions of this Agreement shall
apply, to the full extent set forth herein with respect to the shares of
Common Stock and to any and all equity or debt securities of the Company or
any successor or assign of the Company (whether by merger, consolidation,
sale of assets, or otherwise) which may be issued in respect of, in
exchange for, or in substitution of, such equity or debt securities and
shall be appropriately adjusted for any stock dividends, splits, reverse
splits, combinations, reclassifications, recapitalizations, reorganizations
and the like occurring after the date hereof.
Section 5.12. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
APOLLO MANAGEMENT IV, L.P.
on behalf of its managed investment funds,
Apollo Investment Funds IV, L.P. and
Apollo Overseas Partners IV, L.P.
By Apollo Capital Management IV, Inc.
Its General Partner
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
INTERPOOL, INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chairman, CEO
ATLAS CAPITAL PARTNERS LLC
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: President
TABLE OF CONTENTS
(Not Part of Agreement)
Section Heading Page
------- ------- ----
1. Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
2. Management . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1. Board of Directors . . . . . . . . . . . . . . . . . . . . 3
2.2. No Conflict with Agreement . . . . . . . . . . . . . . . . 4
3. Transfers and Acquisitions of Common Stock . . . . . . . . . . . 4
3.1. Restrictions on Transfer . . . . . . . . . . . . . . . . . 4
3.2. Exceptions to Restrictions . . . . . . . . . . . . . . . . 4
3.3. Endorsement of Certificates . . . . . . . . . . . . . . . 6
3.4. Improper Transfer . . . . . . . . . . . . . . . . . . . . 6
3.5. Restrictions on Purchase . . . . . . . . . . . . . . . . . 7
4. Drag-Along Rights; Tag-Along Rights . . . . . . . . . . . . . . . 7
4.1. Drag-Along Rights . . . . . . . . . . . . . . . . . . . . 7
4.2. Tag-Along Rights . . . . . . . . . . . . . . . . . . . . . 8
4.3. Pre-Sale Notification . . . . . . . . . . . . . . . . . . 9
5. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.1. Pro Rata Investment Right . . . . . . . . . . . . . . . . 10
5.2. Ownership of Atlas . . . . . . . . . . . . . . . . . . . . 10
5.3. Confidentiality . . . . . . . . . . . . . . . . . . . . . 10
5.4. Successors and Assigns . . . . . . . . . . . . . . . . . . 11
5.5. Amendment and Modification; Waiver of
Compliances; Conflicts . . . . . . . . . . . . . . . . . 11
5.6. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.7. Entire Agreement; Governing Law . . . . . . . . . . . . . 13
5.8. Injunctive Relief . . . . . . . . . . . . . . . . . . . . 13
5.9. Availability of Agreement . . . . . . . . . . . . . . . . 14
5.10. Headings . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.11. Recapitalizations, Exchanges, Etc. Affecting
the Shares of Common Stock; New Issuances . . . . . . . 14
5.12. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 14
