EXHIBIT 2.4
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT, dated as of January 20, 1999 (the "Agreement"),
between the undersigned holders (collectively the "Holders" and each a "Holder")
of shares of the common stock, $.01 par value (the "NationsRent Common Stock"),
of NATIONSRENT, INC., a Delaware corporation ("NationsRent"), and RENTAL
SERVICES CORPORATION, a Delaware corporation ("RSC").
RECITALS
NationsRent and RSC propose to enter into an Agreement and Plan of
Merger dated the date hereof (the "Merger Agreement"; capitalized terms not
otherwise defined herein being used herein as therein defined), pursuant to
which NationsRent would be merged (the "Merger") with and into RSC, and each
outstanding share of NationsRent Common Stock would be converted into the right
to receive 0.355 of a share (collectively, "RSC Shares") of RSC Common Stock;
As a condition of its entering into the Merger Agreement, RSC has
requested each Holder to agree, and each Holder has agreed, to enter into this
Agreement;
Prior to the date hereof, RSC and the Holders had no agreement,
arrangement or understanding (as such terms are used in Section 203 of the
Delaware General Corporation Law (the "DGCL")) for the purpose of acquiring,
holding, voting or disposing of shares of NationsRent Common Stock; and
In consideration for the agreements contained herein, prior to the
execution hereof, and prior to RSC becoming an "interested stockholder" for
purposes of Section 203 of the DGCL, the board of the directors of NationsRent
has approved this Agreement, the Merger Agreement and the transactions
contemplated hereby and thereby, including the agreement of the Holders to vote
as provided in Section 2 of this Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
1. Representations and Warranties of the Holders. Each Holder, with
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respect to itself and its Subject Securities, represents and warrants, severally
and not jointly, to RSC as follows:
A. Ownership of Securities. Each Holder is, as of the date hereof,
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the record and/or beneficial owner of the number of shares of NationsRent
Common Stock (the "Existing Securities") (together with any shares of
NationsRent Common Stock or other securities of NationsRent hereafter
acquired by the Holder and reduced by and such shares or other securities
hereafter disposed of by Holder, the "Subject Securities") set forth on the
signature page to this Agreement. Such Holder does not beneficially or of
record own any securities of NationsRent on the date hereof other than the
Existing Securities. The Holder has sole voting power and sole power to
issue instructions with respect to the voting of the Existing Securities,
sole power of disposition, sole power of exercise and the sole power to
demand appraisal rights, except as described on Schedule 1.A, in each case
with respect to all of the Existing Securities, except as indicated on said
Schedule and, on the date of the NationsRent Stockholders Meeting (as
defined in the Merger Agreement), will have the sole voting power and power
to issue instructions with respect to the voting of all of such Holder's
Subject Securities, the sole powers of disposition, exercise and the sole
power to demand appraisal rights, in each case with respect to all of such
Holder's Subject Securities, except as described on Schedule 1.A.
B. Power; Binding Agreement. Each Holder has the legal capacity,
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power and authority to enter into and perform all of such Holder's
obligations under this Agreement. The execution, delivery and performance
of this Agreement by each Holder will not violate any other agreement
relating to the Subject Securities to which the Holder is a party,
including, without limitation, any voting agreement, shareholder's
agreement, partnership agreement or voting trust. This Agreement has been
duly and validly executed and delivered by such Holder and constitutes a
valid and binding agreement of such Holder, enforceable against such Holder
in accordance with its terms, except that (i) such enforcement may be
subject to applicable bankruptcy, insolvency or other similar laws, now or
hereafter in effect, affecting creditors' rights generally, and (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
2. Agreement to Vote Shares. At every meeting of the stockholders of
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NationsRent called with respect to any of the following, and at every
adjournment thereof, each Holder, severally and not jointly, agrees that, so
long as the NationsRent Board of Directors has not withdrawn its recommendation
to NationsRent shareholders to vote in favor of the Merger, it shall vote all
the Subject Securities as to which it has power to vote in any such vote in
favor of the Merger, the adoption of the Merger Agreement and each of the other
transactions contemplated by the Merger Agreement. Each Holder agrees that
during the term of this Agreement it shall not dispose of its
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voting power with respect to any shares of NationsRent Common Stock for which it
retains dispositive power.
3. Representations and Warranties of RSC. RSC has full corporate power
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and authority to enter into and perform all of RSC's obligations under this
Agreement. This Agreement has been duly and validly executed and delivered by
RSC and constitutes a valid and binding agreement of RSC, enforceable against
RSC in accordance with its terms, except that (i) such enforcement may be
subject to applicable bankruptcy, insolvency or other similar laws, now or
hereafter in effect, affecting creditors' rights generally, and (ii) the remedy
of specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
4. Fiduciary Duties. Notwithstanding anything in this Agreement to the
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contrary, the covenants and agreements set forth herein shall not prevent any
Holders serving on NationsRent's Board of Directors from taking any action,
subject to applicable provisions of the Merger Agreement, which such director
shall deem to be required by his fiduciary duties to NationsRent or its
stockholders while acting in such person's capacity as a director of
NationsRent.
5. Assignment; Benefits. This Agreement may not be assigned by any party
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hereto without the prior written consent of the other party and any purported
assignment thereof shall be void. This Agreement shall be binding upon, and
shall inure to the benefit of, the Holders, RSC and their respective successors
and permitted assigns, including, without limitation, any transferee of the
Subject Securities (i) which is an affiliate of or related to, or is an entity
for the benefit of any such affiliate or relative of, any Holder or (ii) for
nominal consideration.
6. Notices. All notices and other communications given or made pursuant
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hereto shall be in writing and shall be deemed to have been duly given or made
if and when delivered personally or by overnight courier or sent by electronic
transmission, with confirmation received, as specified below:
If to each Holder:
AT THE ADDRESSES SET FORTH ON THE SIGNATURE PAGES HERETO
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If to Rental Service Corporation:
0000 Xxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxx Xxxxxxxx
or to such other address or telecopy number as any party may have furnished to
the other parties in writing in accordance herewith.
7. Specific Performance. The parties hereto agree that irreparable harm
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would occur in the event that any of the provisions of this Agreement were not
performed in accordance with its specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
8. Amendment. This Agreement may not be amended or modified, except by
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an instrument in writing signed by or on behalf of each of the parties hereto.
This Agreement may not be waived by either party hereto, except by an instrument
in writing signed by or on behalf of the party granting such waiver.
9. Governing Law and Venue; Waiver of Jury Trial.
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(a) This Agreement shall be deemed to be made in, and in all respects shall
be interpreted, construed and governed by and in accordance with the laws of the
State of Delaware applicable to contracts to be performed wholly in such State.
The parties hereby (i) irrevocably submit to the jurisdiction of the Chancery
Court of the State of Delaware and federal courts of the United States of
America located in the State of Delaware solely in respect of the interpretation
and enforcement of the provisions of this Agreement and in respect of the
transactions contemplated hereby and (ii) waive, and agree not to assert, as a
defense in any action, suit or proceeding for the interpretation or
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enforcement hereof, that it is not subject to such jurisdiction or that such
action, suit or proceeding may not be brought or is not maintainable in said
courts or that the venue thereof may not be appropriate or that this Agreement
may not be enforced in or by such courts, and the Parties irrevocably agree that
all claims with respect to such action or proceeding shall be heard and
determined in such a federal court. The parties hereby consent to and grant any
such court jurisdiction over the person of such Parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in
Paragraph 6 (Notices), or in such other manner as may be permitted by law, shall
be valid and sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF SUCH
PARTY HAS BEEN AUTHORIZED BY SUCH PARTY TO REPRESENT OR, TO THE KNOWLEDGE OR
SUCH PARTY, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH
SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii)
EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 9(b).
10. Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
11. Defined Terms. Terms used herein but not otherwise defined shall have
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the meanings set forth in the Merger Agreement.
12. Termination. This Agreement shall terminate upon the earliest to
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occur of (i) the Effective Time of the Merger; (ii) the date that the
NationsRent board of directors withdraws or adversely modifies its approval or
recommendation to shareholders of the Merger; and (iii) the date of termination
of the Merger Agreement. The date and time at which this Agreement is
terminated in accordance with this Section 12 is referred to herein as the
"Termination Date." Upon any termination of this Agreement, this Agreement
shall thereupon become void and of no further force and effect, and there shall
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be no liability in respect of this Agreement or of any transactions contemplated
hereby or by the Merger Agreement on the part of any party hereto or any of its
directors, officers, partners, stockholders, employees, agents, advisors,
representatives or affiliates; provided, however, that nothing herein shall
relieve any party from any liability for such party's willful breach of this
Agreement; and provided further that nothing herein shall limit, restrict,
impair, amend or otherwise modify the rights, remedies, obligations or
liabilities of any person under any other contract or agreement, including,
without limitation, the Merger Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written.
RENTAL SERVICES CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Chairman of the Board and
Chief Executive Officer
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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HOLDER: XXXX HOLDINGS LIMITED PARTNERSHIP
By: Xxxx'x Holding's Inc.
By: /s/ Xxxxx X. Xxxx
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Title/Authority: Notarized Officer
Address:
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Facsimile:
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with a copy to:
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Facsimile:
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Shares of Common Stock: 12,000,000
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HOLDER:
By:
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Title/Authority:
Address:
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Facsimile:
with a copy to:
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Facsimile:
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Shares of Common Stock:
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