Exhibit 10
AGREEMENT
AGREEMENT, dated as of September 28, 2001, among UNITED RENTALS,
INC. (the "Company"), APOLLO INVESTMENT FUND IV, L.P., APOLLO OVERSEAS
PARTNERS IV, L.P. and CHASE EQUITY ASSOCIATES, L.P. (each, a "Holder" and,
collectively, the "Holders").
WHEREAS, the Company has issued (i) 300,000 shares of Perpetual
Convertible Preferred Stock, Series A, par value $.01 per share ("Series A
Preferred"), having the powers, preferences and relative, participating,
optional and other special rights, and qualifications, limitations and
restrictions ("Terms") set forth in the Certificate of Designation of the
Series A Preferred, as amended (the "Series A Designations"), filed with
the Secretary of State of the State of Delaware (the "Delaware Secretary")
pursuant to the General Corporation Law of the State of Delaware (the
"DGCL"), and (ii) Perpetual Convertible Preferred Stock, Series B, par
value $.01 per share ("Series B Preferred" and, collectively with the
Series A Preferred, the "Preferred Shares"), having the Terms set forth in
the Certificate of Designation of the Series B Preferred filed with the
Delaware Secretary pursuant to the DGCL (the "Series B Designations") and
consisting of 500,000 shares, of which 450,000 shares were designated as
Class B-1 Perpetual Convertible Preferred Stock (the "B-1 Preferred") and
50,000 shares were designated as Class B-2 Perpetual Convertible Preferred
Stock (the "B-2 Preferred"); and
WHEREAS, there are outstanding 300,000 shares of Series A
Preferred, of which Apollo Investment Fund IV, L.P. owns 284,726 shares and
Apollo Overseas Partners IV, L.P. owns 15,274 shares; and
WHEREAS, there are outstanding 105,252 shares of B-1 Preferred, of
which Apollo Investment Fund IV, L.P. owns 94,726 shares, Apollo Overseas
Partners IV, L.P. owns 5,274 shares and Chase Equity Associates, L.P. owns
5,252 shares; and
WHEREAS, there are outstanding 44,748 shares of B-2 Preferred, all
of which are owned by Chase Equity Associates, L.P.; and
WHEREAS, the respective owners of the shares of Series A Preferred
wish to exchange such shares for the same number of shares of Perpetual
Convertible Preferred Stock, Series C, par value $.01 per share ("Series C
Preferred"), having the Terms to be set forth in the Certificate of
Designation of the Series C Preferred (the "Series C Designations")
described in this Agreement; and
WHEREAS, the respective owners of the shares of B-1 Preferred wish
to exchange such shares for the same number of shares of Perpetual
Convertible Preferred Stock, Series D ("Series D Preferred"), Class X-0
("X-0 Xxxxxxxxx"), par value $.01 per share, having the Terms to be set
forth in the Certificate of Designation of the Series D Preferred (the
"Series D Designations") described in this Agreement; and
WHEREAS, the owner of the shares of B-2 Preferred Stock wishes to
exchange such shares for the same number of shares of Series D Preferred,
Class X-0 ("X-0 Xxxxxxxxx"), having the Terms to be set forth in the Series
D Designations.
NOW, THEREFORE, in consideration of the premises and the covenants
and agreements set forth herein, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
the parties hereto, intending to be legally bound, hereby agree as follows:
1. FILING OF DESIGNATIONS
(a) On or prior to the date hereof, the Company has entered into
a Rights Agreement dated as of the date hereof, a true and
complete copy of which has been initialed by the Company and
one or more Holders (the "Rights Agreement"), and has
declared a distribution of one Right (a "Right") to purchase
one one-thousandth of a share of Series E Junior
Participating Preferred Stock of the Company in respect of
each share of common stock of the Company, par value $.01
per share ("Common Stock") which is issued and outstanding
on a record date of October 19, 2001 and with a payment date
of October 19, 2001.
(b) As soon as practicable after the date hereof, the Company
shall file the Series C Designations and the Series D
Designations with the Delaware Secretary pursuant to the
DGCL.
(c) Forthwith on such filings, the Company and the respective
owners of shares of Series A Preferred shall exchange such
shares for the same number of shares of Series C Preferred;
the Company and the respective owners of shares of B-1
Preferred Stock shall exchange such shares for the same
number of shares of D-1 Preferred; and the Company and the
owner of the shares of B-2 Preferred Stock shall exchange
such shares for the same number of shares of D-2 Preferred.
(d) All references in any registration rights or other
agreements with the Company to the Preferred Shares that are
owned by Holders shall from and after the exchange aforesaid
be deemed to refer to the shares of Preferred Stock into
which the exchanges aforesaid are made.
(e) On the date of the exchanges provided for in paragraphs (b),
(c) and (d) of this Section 1, the Company shall issue, with
respect to each share of Preferred Stock which is issued by
the Company pursuant to the aforesaid paragraphs (b), (c)
and (d) of this Section 1, a number of Rights which equals
the number of shares of Common Stock into which each share
of Preferred Stock is then convertible. Such Rights shall
have the terms (including, without limitation, the terms
relating to the redemption thereof), shall be entitled to
the benefits of, and be subject to the conditions of the
Rights Agreement, as if such Rights initially were issued
pursuant thereto. Such Rights shall be evidenced by the
certificates representing the Preferred Shares issued
pursuant to paragraphs (b), (c) and (d) of this Section 1
until the Distribution Date, or by Right Certificates in
substantially the form of Exhibit A to the Rights Agreement
subsequent to the Distribution Date. Upon conversion of any
Preferred Share prior to the Distribution Date, the Rights
issued in respect of such Preferred Share shall cease to
exist and the holder of the shares of Common Stock received
upon conversion of such Preferred Shares shall be issued
Rights in accordance with the provisions of the Rights
Agreement. The number of Rights issued in respect of each
Preferred Share, the Exercise Price and the number and kinds
of shares of capital stock issuable upon exercise of the
Rights shall be subject to adjustment from time to time only
in accordance with the terms of the Rights Agreement. In the
event that the Rights shall be redeemed by the Board of
Directors of the Company in accordance with their terms
while any Preferred Shares are outstanding, the holder of
any Preferred Share then outstanding shall have the right to
receive the Redemption Price with respect to each Right then
held by such holder.
2. THE TERMS OF THE DESIGNATIONS
(a) Except as set forth below, the Terms of the Series C
Designations shall be identical to the Terms of the Series A
Designations, and the Terms of the Series D Designations
shall be identical to the Terms of the Series B
Designations.
(b) Where the Series A Designations and Series B Designations
refer to the Series A Preferred, or to the Series B
Preferred, or to the B-1 Preferred or to the B-2 Preferred,
the Series C and Series D Designations shall instead
respectively refer to Series C Preferred, Series D
Preferred, D-1 Preferred and D-2 Preferred. The Series C
Preferred, Series D Preferred, D-1 Preferred and D-2
Preferred are hereinafter sometimes collectively referred to
as the "Preferred Stock").
(c) Section 2 of each of the Series C and Series D Designations
shall contain the following paragraphs immediately following
the existing text:
DIVIDENDS IN THE EVENT OF A NON-APPROVED CHANGE IN CONTROL.
CERTAIN DEFINITIONS.
"Non-Approved Change in Control" means the occurrence of
the following events: (a) any "person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a person shall be deemed to have "beneficial
ownership" of all securities that such person has the
right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly
or indirectly, of more than 50% of the total voting
capital stock of the Company (a "50% Condition"); and (b)
as of the time of occurrence of such 50% Condition, (i)
no Pre-Change in Control Grant Date shall have occurred
and (ii) the Company and the Board (which term shall
include any committee of the Board) shall have
disapproved (and recommended against, if applicable) such
person or group becoming such a beneficial owner of more
than 50% of the total voting capital stock of the
Company; provided, however, that if the Company or the
Board shall have, without the prior written consent of
the holders of a majority of the shares of Preferred
Stock then outstanding (a "Majority of the Holders"), (1)
failed to maintain in force and effect at all times,
without lapse, the Rights Agreement and the Rights, with
only such amendments or modifications thereto as shall be
approved by a Majority of the Holders, or (2) amended the
Rights Agreement in any manner that reduces the rights it
affords to the Company's shareholders or reduces the
exercise price of Rights under the Rights Agreement, or
(3) waived any provision of the Rights or the Rights
Agreement with respect to any person or group that is or
becomes the person or group described in clause (a),
exempted any person or group that is or becomes the
person or group described in clause (a) in whole or in
part from the operation or effect of the Rights or the
Rights Agreement, or exempted any person or group that is
or becomes the person or group described in clause (a)
from the applicability of Section 203 of the Delaware
General Corporation Law or any successor provision, or
entered into any agreement, arrangement or understanding
with respect to any of the foregoing, or (4) facilitated
or suffered to exist any mitigation or circumvention of
the intended effects of the Rights or the Rights
Agreement, or (5) failed, within 20 days after receipt of
a written request therefor by a Majority of the Holders,
to increase the exercise price of Rights under the Rights
Agreement to the extent necessary so that immediately
after such increase the ratio of such exercise price to
the average of the closing prices of the Common Stock, as
reported by the principal securities exchange upon which
the Common Stock is listed, for the 30 trading days
immediately preceding the date of such request is not
less than three-to-one, then the occurrence of a 50%
Condition shall be deemed to constitute a Change in
Control unless a Pre-Change in Control Grant Date shall
have occurred.
The "Pre-Change in Control Grant Date" shall be the date,
if any, before the occurrence of a 50% Condition, on
which the Company grants to all holders of shares of
Preferred Stock the immediately exercisable right to
require the Company to redeem their shares of Preferred
Stock at the price and terms which would then apply in
respect of a Change in Control; provided, however, that
the holders of shares of Preferred Stock may exercise
such rights at any time during the five-Business-Day
period following the occurrence of the 50% Condition; and
provided, further, that the holders shall have received
an opinion of counsel to the Company that such right to
require the Company to redeem their shares is a valid and
enforceable obligation of the Company and is not limited
by any law or other obligation to which the Company is
subject.
"Start Date" means the date and time upon which a
Non-Approved Change in Control shall have occurred,
provided that unless and until Xxxxxxx X. Xxxxxx shall
have sold, transferred or otherwise disposed of more than
6 million shares of Common Stock after September 24,
2001, no Start Date shall be deemed to have occurred
unless a 50% Condition shall have occurred without taking
into account for the purposes of such defined term any
shares of Common Stock beneficially owned by Apollo
Investment Fund IV, L.P., or Apollo Overseas Partners IV,
L.P. or their respective successors.
"Determination Date" means each March 15, June 15,
September 15 and December 15 (unless such day is not a
Business Day, in which event the Determination Date shall
mean the first succeeding Business Day), commencing on
the first Determination Date succeeding the Start Date.
If any shares of Preferred Stock are outstanding as of the close
of business on the day in which the Start Date occurs, then the
holders shall be entitled, if, as and when unanimously declared by
all directors of the Company then in office, to a per share
cumulative cash dividend in an amount equal to 10% per annum of
the Liquidation Preference, accruing daily commencing from the
Start Date, computed on the basis of a 365-day year, compounded
annually. If, on or prior to any Determination Date, the Company
shall not have declared and paid to a holder of Preferred Stock
the full cumulative cash dividends accruing as aforesaid for such
shares for the quarterly (or other, as the case may be) period
ending on such Determination Date (a "Missed Payment"), each
Missed Payment shall be added to the Liquidation Preference until
paid in full in cash in accordance with Section 4.
From and after the date of any one or more Missed Payments, the
holders shall additionally be entitled, if, as and when
unanimously declared by all directors then in office, to a penalty
dividend at a rate of 8% per annum of the Liquidation Preference,
accruing daily commencing from the date of such Missed Payment,
computed on the basis of a 365-day year, compounded annually,
until all Missed Payments are paid in cash in full (the "Penalty
Dividend"). Each Penalty Dividend not declared and paid in cash
when due will be added to the Liquidation Preference until paid in
full in cash in accordance with Section 4.
Whenever quarterly dividends payable on shares of Preferred Stock
are in arrears (or any Penalty Dividend is owed), thereafter and
until all accrued and unpaid dividends (including Penalty
Dividends), whether or not declared, on the outstanding shares of
Preferred Stock shall have been paid in full, or whenever the
Company shall not have redeemed shares of Preferred Stock at a
time required by the Designations, thereafter and until all
redemption obligations which have come due shall have been
satisfied, the Company shall not: (i) declare or pay dividends, or
make any other distributions, on any shares of capital stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Preferred Stock; (ii) declare or
pay dividends, or make any other distributions, on any shares of
capital stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Preferred Stock,
except dividends paid ratably on the Preferred Stock and all
capital stock ranking on a parity with the Preferred Stock and on
which dividends are payable or in arrears, in proportion to the
total amounts to which the holders of all such shares are then
entitled; or (iii) redeem or purchase or otherwise acquire for
consideration any shares of capital stock ranking (either as to
dividends or upon liquidation, dissolution or winding up) junior
to, or on a parity with the Preferred Stock. The Company shall not
permit any subsidiary of the Company to purchase or otherwise
acquire for consideration any shares of capital stock of the
Company unless the Company could, pursuant to this paragraph,
purchase such shares at such time and in such manner.
The dividends that would be due as a result of a Start Date under
this Section 2 (for clarity, that refers to the 10% dividends
accruing from the Start Date and any Penalty Dividends) shall
cease to accrue from and after the Repurchase Grant Date (as
hereinafter defined). The "Repurchase Grant Date" shall be the
earliest date, if any, on which the Company by, unanimous approval
of all directors then in office, grants to all holders of shares
of Preferred Stock the right to require the Company to redeem
their shares of Preferred Stock at the price and terms which would
then apply in respect of a Change in Control; provided, however,
that the holders of shares of Preferred Stock may exercise such
rights at any time during the two-year period following the
Repurchase Grant Date , and (for the avoidance of doubt and
without duplication) the repurchase price shall be increased by
the dividends (including any Penalty Dividends owed) which shall
have accrued from the Start Date through and including the
Repurchase Grant Date, whether or not declared; and provided,
further, that the holders shall have received an opinion of
counsel to the Company that such right to require the Company to
redeem their shares is a valid and enforceable obligation of the
Company and is not limited by any law or other obligation to which
the Company is subject.
(d) Section 3 of the Series C Designations shall contain the following
new Section (xxi) and Section 3(d) of the Series D Designations shall
contain the following new Section (xx):
No adjustment to the Conversion Price shall be made as a result of
the issuance by the Company of the rights (the "Rights") to
acquire Series E Junior Participating Preferred Stock of the
Company to be issued pursuant to the Rights Agreement, dated as of
September 28, 2001, between the Company and American Stock
Transfer & Trust Co. (the "Rights Agreement") to holders of Common
Stock and Preferred Stock. Any such adjustment to the Conversion
Price, if applicable, will be made only upon the Rights becoming
exercisable.
(e) Section 4 of each Designation shall read as follows:
Liquidation Preference. Upon any voluntary or involuntary
liquidation, dissolution or winding-up of the Company or reduction
or decrease in its capital stock resulting in a distribution of
assets to the holders of any class or series of the Company's
capital stock, each holder of shares of the Preferred Stock will
be entitled to payment out of the assets of the Company available
for distribution of an amount equal to the Liquidation Preference
per share of Preferred Stock held by such holder, plus accrued and
unpaid dividends thereon, whether or not declared (including
Penalty Dividends), if any, to the date fixed for liquidation,
dissolution, winding-up or reduction or decrease in capital stock,
plus if a Start Date shall have occurred, an additional amount
equal to 6.25% of the Liquidation Preference, compounded annually
from the date of issuance up to (and ending on) the Start Date,
before any distribution is made on any Junior Securities,
including, without limitation, Common Stock of the Company. After
payment in full of the Liquidation Preference and all other
amounts aforesaid to which holders of Preferred Stock are entitled
in preference to holders of Common Stock, such holders will not be
entitled to any further participation in any distribution of
assets of the Company; provided, however, that, if a Non-Approved
Change in Control shall have occurred, after payment in full of
the Liquidation Preference and all other amounts aforesaid to
which holders of Preferred Stock are entitled in preference to
holders of Common Stock, such holders will be entitled to
participate with the holders of Common Stock on an as-converted
basis in any distribution of assets of the Company, but only after
the holders of Common Stock have received a distribution per share
equal to the distribution per as-converted share that the holders
of Preferred Stock received as payment in full of such Liquidation
Preference and all other amounts aforesaid. If, upon any voluntary
or involuntary liquidation, dissolution or winding-up of the
Company, the amounts payable with respect to the Preferred Stock
and all other Parity Securities are not paid in full, the holders
of the Preferred Stock and the Parity Securities will share
equally and ratably in any distribution of assets of the Company
in proportion to the full liquidation preference and accumulated
and unpaid dividends, if any, and other amounts payable in such
event, to which each is entitled. However, neither the voluntary
sale, conveyance, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of
the property or assets of the Company nor the consolidation or
merger of the Company with or into one or more Persons will be
deemed to be a voluntary or involuntary liquidation, dissolution
or winding-up of the Company or reduction or decrease in capital
stock, unless such sale, conveyance, exchange or transfer shall be
in connection with a liquidation, dissolution or winding-up of the
business of the Company or reduction or decrease in capital stock.
(f) The first two paragraphs of Section 5 of each Designation shall
read as follows:
If a Change in Control has occurred or the Company enters into a
binding agreement to effect a Change in Control, the Company shall
give prompt written notice of such Change in Control describing in
reasonable detail the material terms and date or anticipated date
of consummation thereof to each holder of Preferred Stock, and the
Company shall give each holder of Preferred Stock prompt written
notice of any material change in the terms or timing of such
transaction. In respect of an actual or proposed Change in Control
that is not an acquisition which is accounted for under the
"pooling-of-interests" method of generally accepted accounting
principles, the Company shall be obligated, by notice given at any
time before the Change in Control or not more than 10 Business
Days after the Change in Control, to offer to purchase within 10
Business Days after the Change in Control all of the then
outstanding Preferred Stock tendered under this paragraph at a
purchase price in cash per Share equal to the Liquidation
Preference thereof plus an amount equal to 6.25% of the
Liquidation Preference, compounded annually from the date of
issuance to the purchase date, plus all accrued and unpaid
dividends (including Penalty Dividends), if any, thereon (whether
or not declared) to the purchase date (the "Call Price"). The
Company shall in its Change in Control offer afford to the Holders
of Preferred Stock at least five Business Days after the mailing
or delivery of the Change in Control offer in which to accept such
offer by written notice to the Company; the failure by any Holder
to accept such offer shall be deemed a rejection of such offer.
Upon the occurrence of a Change in Control that is an acquisition
which is accounted for as a "pooling-of-interests" method of
accounting under generally accepted accounting principles, all of
the outstanding Preferred Stock on the date of the Change in
Control will be automatically converted into Common Stock having a
market value equal to 109.5% of the Call Price, valued at the
closing price of business on the Business Day prior to the date of
the Change in Control. The Company shall not consummate any such
transaction until the Common Stock to be issued to the Preferred
Stockholders has been registered under the Securities Act of 1933,
as amended (the "Securities Act"). Notwithstanding anything to the
contrary herein, offers by the Company under this paragraph 5
shall comply with all procedural and other requirements of federal
and state securities laws then in effect, but no such provisions
shall negate the obligation of the Company to purchase Shares
under this paragraph 5 which are validly tendered and not
withdrawn at the price set forth herein.
"Change in Control" means the occurrence of any of the following
events: (a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person shall be deemed to have
"beneficial ownership" of all securities that such person has the
right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more
than 50% of the total voting capital stock of the Company, and
such event is not a Non-Approved Change in Control; or (b) the
Company consolidates with, or merges with or into, another Person
or sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to any Person,
or any Person consolidates with, or merges with or into, the
Company, in any such event in a transaction in which the
outstanding voting capital stock of the Company is converted into
or exchanged for cash, securities or other property, provided that
following such transaction the holders of voting stock of the
Company immediately prior to such transaction do not own more than
50% of the voting stock of the company surviving such transaction
or to which such assets are transferred.
(g) The Series C Designations shall contain the following new Section 6(ii)A:
If there shall have been a Start Date, and as of the Start Date
there are outstanding shares of Series C and Series D Preferred
having a Liquidation Preference of not less than $25 million), the
Board of Directors shall automatically be increased by the
Applicable Number (as hereinafter defined), and the holders of the
Series C Preferred shall, automatically, and without any further
action by the Board or any stockholder or stockholders of the
Company, in addition to any other voting rights, have the right,
voting separately as a class on a one vote per share basis (pro
rated for fractional shares), in person, by proxy or by written
consent in lieu of a meeting, to elect the Applicable Number of
additional directors. Whenever such right of the holders of the
Series C Preferred shall have vested, such right may be exercised
initially either by written consent or at a special meeting of
such holders or at any annual meeting of stockholders held for the
purpose of electing directors, and thereafter at such annual
meetings. The Company shall comply with Section 14(f) of the
Securities and Exchange Act and Rule 14f-1 promulgated thereunder.
The "Applicable Number" means at any time that number of
directors, which when added to the number of directors, if any,
that were elected by the holders of the Series C Preferred
pursuant to Section 6(ii) and that are then in office, shall equal
the minimum number that will constitute a majority of the entire
Board after the Applicable Number of additional directors are
appointed. Such additional directors (and any replacement or
successor directors from time to time elected by the holders of
the Series C Preferred) shall serve until the later of (i) the
first to occur of (A) the Repurchase Grant Date, if any, and (B)
the third anniversary of the Start Date, or (ii) the date on which
the Company by unanimous approval of the Board has declared and
paid in full all accrued dividends (including Penalty Dividends)
on all shares of Preferred Stock.
The directors elected by the holders of the Series C Preferred
shall be appointed to and shall constitute a majority of directors
of each committee of the Board, and from and after the Start Date
any action by any committee of the Board shall require therefor
the affirmative vote of a majority of the members thereof, after
giving effect to the appointments to be made pursuant to this
sentence.
So long as the designees of the Series C Preferred are entitled to
serve on the Board under this Section 6(ii)A, (i) the Company will
not without the unanimous approval of each director then in office
grant to any holder of Preferred Stock the right, directly or
indirectly, to cause such holder's Preferred Stock (or any stock
for which such Preferred Stock is exchanged) to be redeemed, or to
declare, or pay, or change the accrual rate of, any dividends
(including Penalty Dividends) on any Preferred Stock (or any stock
for which such Preferred Stock is exchanged), (ii) the size of the
Board shall be subject to increase or decrease only by approval of
the Board and the holders of the Series C Preferred, and any
action by the Board of Directors shall require therefor the
affirmative vote of the Applicable Number of directors
(irrespective of whether elected by the Series C Preferred or
otherwise), (iii) directors elected by the holders of Series C
Preferred may only be removed from office by the Series C
Preferred, and (iv) the directors (other than directors elected
pursuant to Section 6(ii)) who shall be in office at the time of
the Non-Approved Change in Control (and their successors) shall
act as a nominating committee with the exclusive authority to
nominate their successors.
At any time when the right of the holders of Series C Preferred to
elect directors as provided in this paragraph shall have vested,
and if such right shall not already have been initially exercised
within 20 days of the Start Date by the holders of the Series C
Preferred, a proper officer of the Company may call a special
meeting of such holders for the purpose of electing directors.
Such meeting shall be held at the earliest practicable date upon
the same form of notice as is required for annual meeting of
stockholders of the Company at such suitable place in the City of
New York as is designated by such officer.
At any meeting held for the purpose of electing directors at which
holders of Series C Preferred shall have the right, voting
together as a class to elect directors as provided herein, the
presence, in person or by proxy, of the holders of a majority of
the aggregate number of shares of Series C Preferred at the time
outstanding shall be required and be sufficient to constitute a
quorum of such class for the election of directors pursuant
hereto. At any such meeting or adjournment thereof, in the absence
of a quorum, a majority of the holders of Series C Preferred,
present in person or by proxy, shall have the power to adjourn the
meeting for the election of directors whom they are entitled to
elect, from time to time without notice other than announcement at
the meeting or as otherwise required by law, until a quorum shall
be present.
During any period when the holders of Series C Preferred shall
have the right to vote together as a class for directors as
provided herein, the directors so elected by such holders shall
continue in office until their successors shall have been elected
by such holders or until termination of the rights of such holders
to vote as a class for directors. Immediately upon termination of
the right of holders of Series C Preferred to vote as a class for
directors as provided herein, (i) the term of office of the
directors so elected shall terminate, and (ii) the number of
directors shall be such number as may be provided for in the
by-laws of the Company irrespective of any increase pursuant to
the provisions of this paragraph.
Notwithstanding the foregoing, nothing herein or otherwise in the
Company's Certificate of Incorporation or bylaws shall limit or
prevent the right of the holders of Series C Preferred from, to
the fullest extent allowed by law, exercising the voting rights
provided in this paragraph by written consent of a majority of the
outstanding shares of Series C Preferred.
3. REPRESENTATIONS AND WARRANTIES.
(a) Each Holder, severally and not jointly, represents and
warrants to the Company that such Holder (a) is an
"accredited investor" (as defined in Regulation D under the
Securities Act of 1933, as amended) and has, by reason of
its or its management's business and financial experience,
the ability to protect its own interests and evaluate any
risks in connection with the matters contemplated by this
Agreement, and (b) owns, beneficially and of record, all
Preferred Shares referred to above as owned by such Holder,
free and clear of all liens, encumbrances, pledges or rights
of others (including, without limitation, any option,
warrant, right of first offer or right of first refusal).
(b) The Company represents and warrants to Holders as follows:
(i) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Delaware and has all requisite corporate
power and authority to own and operate its
properties, to carry on its business as now conducted
and as proposed to be conducted, to enter into and
perform all of its obligations under this Agreement.
(ii) This Agreement has been duly authorized and
constitutes the valid and binding obligation of the
Company, enforceable in accordance with its terms,
except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other
similar laws relating to or affecting enforcement of
creditors' rights generally, or by general principles
of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(iii) The compliance by the Company with all of the
provisions of this Agreement, the execution, delivery
and performance by the Company of this Agreement, and
the issuance by the Company of the Preferred Stock as
provided herein, will not conflict with or result in
a breach or violation of any of the terms and
provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement
(provided the consent of the Company's lending banks
must be obtained before the Company redeems or
repurchases Preferred Stock) or other agreement or
instrument to which the Company is a party or by
which the Company is bound or to which any of the
property or assets of the Company are subject, nor
will such actions result in any violation of the
provisions of the certificate of incorporation or
bylaws of the Company or any statute or any order,
rule or regulation of any court or governmental
agency or body having jurisdiction over the Company
or any of their properties except in each case as
would not, individually or in the aggregate have a
effect that is materially adverse to the properties,
business, results of operations or financial
condition of the Company and its subsidiaries taken
as a whole or to the rights of the Holders.
(iv) The Preferred Stock will be validly issued and
outstanding, fully paid and non-assessable when
issued pursuant to Section 1.
4. EXPENSES. The Company shall reimburse the Holders upon request in
respect of the fees and expenses charged to the Holders by one firm of
legal counsel and one accounting firm in connection with this
Agreement, provided that such amount reimbursed shall not exceed
$75,000 in the aggregate.
5. BINDING EFFECT. A Holder may assign its rights under this Agreement in
respect of Preferred Shares, but only to a transferee of such
Preferred Shares; any purported assignment not in compliance with this
Agreement shall be void and of no effect. Subject to the foregoing,
the provisions of this Agreement shall be binding upon the parties
hereto and their respective successors and permitted assigns.
6. APPLICABLE LAW. The laws of the State of New York shall govern the
interpretation and performance of the terms of this Agreement,
regardless of the law that might be applied under principles of
conflicts of law.
7. INTEGRATION. This Agreement, together with the exhibits and schedules
hereto, contains the entire understanding of the parties with respect
to the subject matter hereof.
8. DESCRIPTIVE HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning of terms contained herein.
9. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which shall
constitute one and the same instrument. A facsimile copy of a
signature page shall be deemed to be an original signature page.
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be executed by one of its duly authorized officers as of the
date first above written.
UNITED RENTALS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman and Chief Executive
Officer
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P.,
its general partner
By: Apollo Capital Management IV, Inc.,
its general partner
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors, IV, L.P.,
its general partner
By: Apollo Capital Management IV, Inc.,
its general partner
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners,
its General Partner
By: /s/ Xxxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Executive Partner
[Signature page for Agreement dated as of September 28, 2001]
