Exhibit 10(r)
UNITED RENTALS, INC.
SUBSCRIPTION AGREEMENT
United Rentals, Inc.
Four Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Gentlemen:
1. SUBSCRIPTION. The undersigned hereby subscribes for and agrees to purchase
100,000 shares of Common Stock, par value $0.01 per share (the "Shares"), of
United Rentals, Inc. (the "Company"), a Delaware corporation, for a purchase
price of $10.00 per Share, on the terms and conditions described herein. The
undersigned tenders herewith a $1,000,000 check payable to the order of United
Rentals, Inc.
2. RESTRICTIONS ON TRANSFER AND RESALE
(a) The undersigned agrees that until the first anniversary of the date
on which the Shares are originally issued to the undersigned pursuant
to this Agreement, the undersigned shall not, directly or indirectly,
sell, offer to sell, contract to sell, grant any option to purchase,
or otherwise transfer or dispose of (collectively, "Transfer") any
Shares purchased pursuant to this Agreement without the prior written
consent of the Company (which may be withheld at its discretion and
may be offered to some stockholders and not to others). For purposes
of this Agreement, a Transfer of Shares will be deemed to include any
transaction involving the sale or purchase of common stock of the
Company or contracts relating to the purchase or sale thereof (such as
"shorting against the box" or hedging or using derivative instruments)
that is intended to eliminate or reduce the market risk of owning the
Shares purchased by the undersigned pursuant to this Agreement.
(b) The undersigned understands that the Shares have not been registered
under the Securities Act of 1933, as amended (the "Act") or any state
or foreign securities laws. Within 13 months following the closing of
an initial public offering, the Company will file a registration
statement, in accordance with the Act, registering the resale of the
Shares and will use its best efforts to cause such registration
statement to become effective, and the Shares to be qualified under
the laws of such States as the undersigned requests, as soon as
practicable thereafter. The Company shall take all actions necessary
to keep such registration and qualification effective until the
undersigned has sold all of the Shares or until such registration and
qualification shall no longer be necessary for the public sale of the
Shares in a single transaction. All registration expenses incurred in
connection with the registration of Shares pursuant to this Agreement
shall be borne by the Company. The transfer restrictions described
above will continue in effect until the first anniversary referenced
above notwithstanding any such registration. The Company has no other
obligation to register the Shares, or to assist in complying with any
exemption from registration. Without limiting the restrictions
provided for in Section 2(a) hereof, the undersigned agrees not to
Transfer any Shares in the absence of an effective registration
statement under the Act or an opinion of counsel satisfactory to the
Company that such Transfer does not require such registration under
the Act and will not be in violation of applicable state securities
laws.
(c) The restrictions on Transfer and the registration rights with respect
to the Shares provided for in this Section 2 shall apply to any
securities issued in respect of the Shares (by way of stock split,
dividend or otherwise).
3. GENERAL REPRESENTATIONS AND WARRANTIES AND COVENANTS
The undersigned hereby acknowledges, represents and warrants to, and agrees
with, the Company as follows:
(a) The undersigned is acquiring the Shares for the undersigned's own
account, for investment purposes only, and not with a view to or for
or in connection with the resale, public distribution or
fractionalization thereof, in whole or in part.
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(b) The undersigned meets the standards of an "Accredited Investor" set
forth under Rule 501(a) of Regulation D under the Act and has such
knowledge and experience in financial and business matters that the
undersigned with the assistance of the undersigned's representatives
and/or advisors, is capable of evaluating the merits and risks of an
investment in the Shares. The undersigned will promptly notify the
Company in the event that prior to the issuance of the Shares to the
undersigned the foregoing representation ceases to be accurate.
(c) The undersigned:
(i) has received and carefully read the Company's registration
statement on Form S-1 (the "Registration Statement"), has been
advised that the Registration Statement has not been declared
effective, understands and has evaluated the risks of a purchase
of the Shares, including the risks set forth in the Registration
Statement, and has relied solely (except as indicated in
subparagraphs (ii) and (iii) below) on the information contained
in the Registration Statement;
(ii) has been given the opportunity to ask questions of, and receive
answers from, the Company concerning the Company and the Offering
and other matters pertaining to this investment, and to obtain
any additional information necessary to verify the accuracy of
the information contained in the Registration Statement or
otherwise provided, and has not been furnished any other offering
literature or prospectus except as mentioned herein or in the
Registration Statement;
(iii) has been furnished with all additional documents and
information requested by the undersigned; and
(iv) has determined that the Shares are a suitable investment and that
at this time the undersigned could bear a complete loss of the
investment.
(d) The certificates representing the Shares will bear a legend in
substantially the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933. The shares may not
be offered, sold, transferred, or otherwise disposed of except
pursuant to an effective registration statement under that Act
and under any applicable state securities laws unless prior to
such disposition the issuer is furnished with an opinion of
counsel, in form and substance satisfactory to the issuer, that
the proposed transaction will be exempt from such registration.
The shares are subject to additional restrictions on transfer
contained in a Subscription Agreement dated November 14, 1997,
between the issuer and the holder."
(e) If the undersigned is a corporation, partnership, trust or other
entity, it (i) is authorized and qualified to become a shareholder in,
and authorized to make its investment in, the Company, and the person
signing this Agreement on behalf of such entity has been duly
authorized to do so, and (ii) was not formed for the specific purpose
of investing in the Company nor did or will the shareholders, partners
or grantors, as the case may be, of the undersigned entity contribute
additional capital for the specific purpose of purchasing the Shares.
(f) No representations not contained in the Registration Statement or this
Agreement have been made to the undersigned by the Company or any
officer, employee, agent or affiliate thereof.
4. MISCELLANEOUS
(a) Neither this Agreement nor any provisions hereof shall be modified,
discharged or terminated except by an instrument in writing signed by
the party against whom any waiver, change, discharge or
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termination is sought.
(b) Any notice, demand or other communication which any party hereto may
be required, or may elect, to give to anyone interested hereunder
shall be sufficiently given if (i) deposited, postage prepaid, in the
United States mail, registered or certified mail, return receipt
requested, addressed to such address as may be given herein, or (ii)
delivered personally at such address (against receipt).
(c) Except as otherwise provided herein, this Agreement shall bind and
benefit the parties hereto and their heirs, executors, administrators,
successors, legal representatives and permitted assigns. If the
undersigned is more than one person, the obligations of the
undersigned shall be joint and several and the agreements,
representations, warranties and acknowledgments herein contained shall
be deemed to be made by and be binding upon each such person and his
heirs, executors, administrators and successors.
(d) This instrument contains the entire agreement of the parties, and
there are no representations, covenants or other agreements except as
stated or referred to herein.
(e) This Agreement is not transferable or assignable by the undersigned;
provided, however, that the undersigned may transfer or assign its
registration rights under this Agreement by will or laws of intestate
succession to any person or entity who acquires Shares as a result of
a transfer otherwise permitted under this Agreement.
(f) This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware applicable to contracts made and to
be performed entirely within such state. The federal and state courts
sitting in Delaware shall have exclusive jurisdiction over all matters
relating to this Agreement. Trial by jury is expressly waived.
(g) All pronouns herein and any variations thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the
identity of the parties hereto may require.
(h) This Agreement may be executed through the use of separate signature
pages or in any number of counterparts, and each of such counterparts
shall, for all purposes, constitute one agreement binding on all the
parties, notwithstanding that all parties are not signatories to the
same counterpart.
5. OTHER.
(a) The Company represents and warrants that (i) it is duly organized and
in good standing, (ii) it has taken all corporate action necessary for
the authorization, execution, delivery and performance of this
Agreement, and (iii) upon payment of the purchase price for the
Shares, the Shares will be duly and validly issued, fully paid and
nonassessable.
(b) In the event of the registration of the Shares under the Act pursuant
to this Agreement, the Company will, and it hereby does, indemnify and
hold harmless, to the extent permitted by law, the undersigned,
against any and all losses, claims, damages or liabilities, joint or
several, and expenses to which the undersigned may become subject
under the Act, common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
Shares were registered under the Act, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement
thereto, or (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Company will reimburse the
undersigned for any legal or any other expenses reasonably incurred by
him in connection with investigating or defending any such loss,
claim, liability, action or proceeding; provided that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof)
or expenses arise out of or are based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such
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registration statement or amendment or supplement thereto or in any
such preliminary, final or summary prospectus in reliance upon and in
conformity with written information furnished to the Company by the
undersigned expressly for use in the preparation thereof. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the undersigned.
(c) In the event of the registration of the Shares under the Act pursuant
to this Agreement, the undersigned will, and he hereby does, indemnify
and hold harmless, to the extent permitted by law, the Company, its
directors and officers and each other person, if any, who controls the
Company within the meaning of the Act, against any and all losses,
claims, damages or liabilities, joint or several, and expenses to
which the Company, any such director or officer or any such
controlling person may become subject under the Act, common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered
under the Act, any preliminary, final or summary prospectus contained
therein, or any amendment or supplement thereto, or (ii) any omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expenses arise out of or are based upon any untrue
statement or alleged untrue statement or omission or alleged omission
made in such registration statement or amendment or supplement thereto
or in any such preliminary, final or summary prospectus in reliance
upon and in conformity with written information furnished to the
Company by the undersigned expressly for use in the preparation
thereof; and the undersigned will reimburse the Company and each such
director, officer and controlling person for any legal or any other
expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, liability, action or proceeding.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any such
director, officer or controlling person and shall survive the transfer
of such securities by the undersigned. In no event shall the
liability of the undersigned hereunder exceed the proceeds of sale
received by the undersigned in respect of securities sold by the
undersigned pursuant to such registration statement.
(d) Promptly after receipt by an indemnified party hereunder of written
notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subsections of this Section 5, such
indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of
the commencement of such action; provided that the failure of any
indemnified party to give notice as provided herein shall not relieve
the indemnifying party of its obligations under the preceding
subsections of this Section 5, except to the extent that the
indemnifying party is actually prejudiced by such failure to give
notice. In case any such action is brought against an indemnified
party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties
may exist in respect of such claim, the indemnifying party will be
entitled to participate in the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish,
with counsel reasonably satisfactory to such indemnified party. No
indemnifying party will consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect to such claim or litigation.
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SIGNATURE PAGE
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The undersigned has read and executed this Agreement on the 14th day of
November, 1997.
X________________________________
Xxxxxxx X. Xxxxx
Telephone Number: 000-000-0000
Social Security/Tax ID Number(s): ###-##-####
Address:
Xxxxxxx X. Xxxxx
000 Xxxxxxxx Xxxxxx, #0
Xxxxxx, XX 00000
Approved and Agreed:
UNITED RENTALS, INC.
BY ______________________________
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