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Exhibit 10.3(i)
STOCKHOLDERS AGREEMENT
THIS AGREEMENT is made as of June 4, 1996 by and between National
Equipment Services, Inc., a Delaware corporation (the "Company"), Golder,
Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P., an Illinois limited partnership (the
"Investor"), and Xxxxx Xxxxxxx and Xxxx Xxxxxxxxx (collectively, the
"Executives"). The Investor and the Executives are collectively referred to
herein as the "Stockholders" and individually as a "Stockholder." Capitalized
terms used but not otherwise defined herein are defined in paragraph 7 hereof.
The Investor will purchase shares of the Company's Class A Common Stock,
par value $.01 per share (the "Class A Common"), and the Company's Class B
Common Stock, par value $.01 per share (the "Class B Common" and, together with
the Class A Common, the "Common Stock"), pursuant to a purchase agreement
between the Investor and the Company dated as of the date hereof (the "Purchase
Agreement"). Each of the Executives will purchase shares of Class B Common
pursuant to separate Management Agreements.
The execution and delivery of this Agreement is a condition to the
Investor's purchase of Common Stock pursuant to the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Board of Directors.
(a) From and after the Closing and until the provisions of this paragraph
1 cease to be effective, each Stockholder shall vote all of his Stockholder
Shares and any other voting securities of the Company over which such
Stockholder has voting control and shall take all other necessary or desirable
actions within his control (whether in his capacity as a stockholder, director,
member of a board committee or officer of the Company or otherwise, and
including, without limitation, attendance at meetings in person or by proxy for
purposes of obtaining a quorum and execution of written consents in lieu of
meetings), and the Company shall take all necessary and desirable actions
within its control (including, without limitation, calling special board and
stockholder meetings), so that:
(i) the authorized number of directors on the Company's board of
directors (the "Board") shall be established at the number determined by
the Investor, provided that such authorized number shall be no fewer than
three directors;
(ii) the following persons shall be elected to the Board
(A) two representative designated by the Investor (the
"Investor Directors"), who shall initially be Xxxx X. Xxxxx and
Xxxxxxx X. Xxxxxxxxx;
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(B) one representative designated by the holders of a majority
of the Class B Common then held by the Executives and their
Permitted Transferees (the "Executive Director"), who shall
initially be Xxxxx Xxxxxxx; and
(C) if the size of the Board shall be set by the Investor at
greater than three directors, additional representatives chosen
jointly by the Investor and the Executives (the "Additional
Directors"); provided that if the Investor and the Executives are
unable to agree on the Additional Directors within 10 days after
the date specified by the Investor for electing the Additional
Directors, the Investor, in its sole discretion, shall designate
the Additional Directors;
(iii) the authorized number of directors on the board of directors
of each of the Company's Subsidiaries (each a "Sub Board") shall be the
same as that of the Board;
(iv) the removal from the Board or a Sub Board (with or without
cause) of the Investor Director or any Executive Director shall be only
upon the written request of the person or persons originally entitled to
designate such director pursuant to subparagraph 1(a)(ii) above, and the
removal from the Board of any Additional Director shall be only upon the
written request of the Investor; provided that if any Executive Director
ceases to be an employee of the Company and its subsidiaries, he shall be
removed as a director promptly after his employment ceases on a date
specified by the Investor; and
(v) in the event that any representative designated hereunder for
any reason ceases to serve as a member of the Board or a Sub Board during
his term of office, the resulting vacancy on the Board or the Sub Board
shall be filled by a representative designated by the person or persons
originally entitled to designate such director pursuant to subparagraph
1(a)(ii) above.
(b) There shall be at least four meetings of the Board during every
fiscal year, at least one of which shall be held in each 120-day period during
the Company's fiscal year. The Company shall pay all out-of-pocket expenses
incurred by each director in connection with attending regular and special
meetings of the Board, any Sub Board and any committee thereof.
(c) If any party fails to designate a representative to fill a
directorship pursuant to the terms of this paragraph 1, the election of a
person to such directorship shall be accomplished in accordance with the
Company's bylaws and applicable law.
2. Conflicting Agreements. Each Stockholder represents that he or
it has not granted and is not a party to any proxy, voting trust or other
agreement which is inconsistent with or conflicts with the provisions of this
Agreement, and no holder of Stockholder Shares shall grant any proxy or become
party to any voting trust or other agreement which is inconsistent with or
conflicts with the provisions of this Agreement.
3. Legend. Each certificate evidencing Stockholder Shares and each
certificate issued in exchange for or upon the transfer of any Stockholder
Shares (if such shares remain Stock
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holder Shares as defined herein after such transfer) shall be stamped or
otherwise imprinted with a legend in substantially the following form:
"The securities represented by this certificate are
subject to a Stockholders Agreement dated as of June
4, 1996, among the issuer of such securities (the
"Company") and certain of the Company's stockholders.
A copy of such Stockholders Agreement will be
furnished without charge by the Company to the holder
hereof upon written request."
The Company shall imprint such legend on certificates evidencing Stockholder
Shares outstanding prior to the date hereof. The legend set forth above shall
be removed from the certificates evidencing any shares which cease to be
Stockholder Shares.
4. Public Offering. In the event that the Board and the holders of a
majority of the shares of Common Stock then outstanding approve an initial
public offering and sale of Common Stock (a "Public Offering") pursuant to an
effective registration statement under the Securities Act, the holders of
Common Stock shall take all necessary or desirable actions in connection with
the consummation of the Public Offering. In the event that such Public
Offering is an underwritten offering and the managing underwriters advise the
Company in writing that in their opinion the Common Stock structure shall
adversely affect the marketability of the offering, each holder of Common Stock
shall consent to and vote for a recapitalization, reorganization and/or
exchange of the Common Stock into securities that the managing underwriters,
the Board and holders of a majority of the shares of Common Stock then
outstanding (voting as a single class) find acceptable and shall take all
necessary or desirable actions in connection with the consummation of the
recapitalization, reorganization and/or exchange; provided that the resulting
securities reflect and are consistent with the rights and preferences set forth
in the Company's Certificate of Incorporation as in effect immediately prior to
such Public Offering.
5. Sale of the Company.
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(a) If the Board and the holders of a majority of the shares of Common
Stock (voting as a single class) then outstanding approve a Sale of the Company
(an "Approved Sale"), each holder of Common Stock shall vote for, consent to
and raise no objections against such Approved Sale. If the Approved Sale is
structured as a (i) merger or consolidation, each holder of Common Stock shall
waive any dissenters' rights, appraisal rights or similar rights in connection
with such merger or consolidation or (ii) sale of stock, each holder of Common
Stock shall agree to sell all of his Common Stock and rights to acquire Common
Stock on the terms and conditions approved by the Board and the holders of a
majority of the Common Stock (voting as a single class) then outstanding. Each
holder of Common Stock shall take all necessary or desirable actions in
connection with the consummation of the Approved Sale as requested by the
Company. The Company will provide each holder of Stockholder Shares with all
material information in its possession regarding such Approved Sale, so long as
such holders enter into such confidentiality agreements as the purchaser(s) in
such Approved Sale reasonably require.
(b) The obligations of the holders of Common Stock with respect to the
Approved Sale of the Company are subject to the satisfaction of the following
conditions: (i) upon the consummation of the Approved Sale, each holder of
Common Stock shall receive the same form of consideration and the same amount
of consideration as set forth in paragraph 6 below; (ii) if any holders of a
class of Common Stock are given an option as to the form and amount of
consideration to be received, each holder of such class of Common Stock shall
be given the same option; and (iii) each holder of then currently exercisable
rights to acquire shares of a class of Common Stock shall be given an
opportunity to either (A) exercise such rights prior to the consummation of the
Approved Sale and participate in such sale as holders of such class of Common
Stock or (B) upon the consummation of the Approved Sale, receive in exchange
for such rights consideration equal to the amount determined by multiplying (1)
the same amount of consideration per share of a class of Common Stock received
by holders of such class of Common Stock in connection with the Approved Sale
less the exercise price per share of such class of Common Stock of such rights
to acquire such class of Common Stock by (2) the number of shares of such class
of Common Stock represented by such rights. The provisions contained in this
paragraph 5 shall supersede any restrictions on transfer or other contrary
provisions contained in any other agreement, document or instrument to which
any Stockholder is a party.
6. Distributions upon Sale of the Company. In the event of a sale or
exchange by the Stockholders of a majority of the Common Stock held by the
Stockholders (whether by sale, merger, recapitalization, reorganization,
consolidation, combination, sale or transfer of the Company's capital stock or
otherwise), each Stockholder shall receive in exchange for the shares of Common
Stock held by such Stockholder the same portion of the aggregate consideration
from such sale or exchange that such Stockholder would have received if such
aggregate consideration had been distributed by the Company in complete
liquidation pursuant to the rights and preferences set forth in the Company's
Certificate of Incorporation as in effect immediately prior to such sale or
exchange. Each holder of Common Stock shall take all necessary or desirable
actions in connection with the distribution of the aggregate consideration from
such sale or exchange as requested by the Company.
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7. Participation Rights. At least 40 days prior to any sale, transfer,
assignment, pledge or other disposal (a "Transfer") of any Stockholder Shares
by the Investor or any of its Affiliates after which the Investor or such
Affiliate would not have control of the Company (other than a distribution of
such shares to the Investor's limited and general partners pursuant to the
partnership agreement then in effect between such partners), or the prospective
transferee would have control of the Company, the Investor shall deliver a
written notice (the "Sale Notice") to the Company and each of the other
Stockholders (the "Other Stockholders"), specifying in reasonable detail the
class(es) of the Stockholder Shares to be transferred, the identity of the
prospective transferee(s) and the terms and conditions of the Transfer. If the
consideration to be paid in connection with such Transfer is other than cash,
the Investor will provide the Other Stockholders with all material information
in the Investor's possession regarding such non-cash consideration. The Other
Stockholders may elect to participate in the contemplated Transfer by
delivering written notice to the Investor within 30 days after delivery of the
Sale Notice. With respect to each class of Stockholder Shares to be
Transferred, if any Other Stockholders have elected to participate in such
Transfer, the Investor or such Affiliate and such Other Stockholders shall be
entitled to sell in the contemplated Transfer, at the same price and on the
same terms, a number of Stockholder Shares of such class equal to the product
of (i) the quotient determined by dividing (1) the number of Stockholder Shares
of such class held by such Person by (2) the aggregate number of Stockholder
Shares of such class owned by the Investor or such Affiliate and the Other
Stockholders participating in such sale and (ii) the aggregate number of such
class of Stockholder Shares to be sold in the contemplated Transfer. For
purposes of the preceding sentence, all Stockholder Shares held by any
Permitted Transferee of any Other Stockholder shall be deemed held by such
Other Stockholder himself. Any Stockholder Shares referred to in a Sale Notice
which are not transferred by the Investor during the 90-day period immediately
following the date on which such Sale Notice has been given to the Other
Stockholders (at a price and on terms no more favorable to the Investor than
specified in the Sale Notice) will be subject to the provisions of this
paragraph 7 upon subsequent transfer. The restrictions on the Transfer of
Stockholder Shares set forth in this paragraph 7 will terminate (A) with
respect to all Stockholder Shares upon the occurrence of a Public Offering and
(B) with respect to any particular Stockholder Share, when such Stockholder
Share has been (x) effectively registered under the Securities Act and disposed
of in accordance with the registration statement covering them or (y) sold to
the public through a broker, dealer or market maker pursuant to Rule 144 (or
any similar provision then in force) under the Securities Act. The provisions
contained in this paragraph 7 shall supersede any restrictions on transfer or
other contrary provisions contained in any other agreement, document or
instrument to which any Other Stockholder is a party.
8. Limited Preemptive Rights.
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(i) Except for the issuance of Common Stock or any securities containing
options or rights to acquire any shares of Common Stock (a) to the Company's
employees on terms and conditions approved by the Board (including, without
limitation, to the Executives pursuant to the Management Agreements), (b) in
connection with the acquisition of another company or business on terms and
conditions approved by the Board, or (c) pursuant to a public offering
registered under the Securities Act, if the Company at any time after the
Closing authorizes the issuance or sale of any shares of Common Stock or any
securities containing options or rights to acquire any shares of Common Stock
(other than as a dividend on the outstanding Common Stock), the Company shall
first offer to sell to each holder of Executive Common Stock a portion of such
stock or securities equal to the quotient determined by dividing (1) the number
of shares of Executive Common Stock held by such holder by (2) the total number
of shares of Common Stock outstanding on a Fully-Diluted Basis immediately
prior to such issuance. Each holder of Executive Common Stock shall be
entitled to purchase all or any portion of such stock or securities at the most
favorable price and on the most favorable terms as such stock or securities are
to be offered to any other Persons.
(ii) In order to exercise its purchase rights hereunder, a holder of
Executive Common Stock must within 15 days after receipt of written notice from
the Company describing in reasonable detail the stock or securities being
offered, the purchase price thereof, the payment terms and such holder's
percentage allotment deliver a written notice to the Company describing its
election hereunder. If all of the stock and securities offered to the holders
of Executive Common Stock is not fully subscribed by such holders, the
remaining stock and securities shall be reoffered by the Company to the holders
purchasing their full allotment upon the terms set forth in this paragraph,
except that such holders must exercise their purchase rights within five days
after receipt of such reoffer.
(iii) Upon the expiration of the offering periods described above, the
Company shall be entitled to sell such stock or securities which the holders of
Executive Common Stock have not elected to purchase during the 90 days
following such expiration on terms and conditions no more favorable to the
purchasers thereof than those offered to such holders. Any stock or securities
offered or sold by the Company after such 90-day period must be reoffered to
the holders of Executive Common Stock pursuant to the terms of this paragraph.
(iv) Nothing contained in this paragraph 8 shall be deemed to amend,
modify or limit in any way the restrictions on the issuance of shares of Common
Stock set forth in the Purchase Agreement, elsewhere in this Agreement or in
any other agreement to which the Company is bound.
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9. Other Matters.
(a) Related Party Transactions. So long as the Company is not in monetary
default under any loan facility between the Company and any Independent Third
Party, the Investor agrees to not, and agrees to cause each Affiliate of the
Investor to not, consummate, or agree to consummate, any transaction (whether
through the execution of a new contract, the amendment of an existing contract
or otherwise) with the Company or any of its Subsidiaries unless such
transaction is approved by the holders of a majority of the Executive Common
Stock; provided that this subparagraph (a) shall not apply to the transactions
contemplated by paragraph 1B of the Purchase Agreement or to the Professional
Services Agreement (as defined in the Purchase Agreement) as in effect on the
date hereof.
(b) Issuances. So long as the Company is not in monetary default under
any loan facility between the Company and any Independent Third Party, the
Investor agrees to not, and agrees to cause each Affiliate of the Investor to
not, purchase any Common Stock or any securities containing options or rights
to acquire any shares of Common Stock unless the Investor and/or its Affiliates
has theretofore purchased all of securities contemplated by paragraph 1B of the
Purchase Agreement on the terms described in the Purchase Agreement.
(c) Redemptions. The Company agrees to not redeem or otherwise acquire
any Common Stock, except (i) for repurchases of capital stock from employees of
the Company and its Subsidiaries upon termination of employment pursuant to the
Management Agreements or other arrangements approved by the Board, (ii) to the
extent approved unanimously by the Board or (iii) pursuant to a purchase offer
made pro rata to all holders of Common Stock on the basis of the number of
shares of Common Stock owned by each such holder; provided that the foregoing
shall not affect the Company's right to pay the Yield and Unreturned Original
Cost in respect of its Class A Common Stock.
10. Financial Statements and Other Information. The Company shall deliver
to each holder of Executive Common Stock (so long as such Person is not
employed by the Company) all of the information contemplated by paragraph 3A of
the Purchase Agreement.
11. Inspection of Property. The Company shall permit any representatives
designated by any holder of Executive Common Stock (so long as such Person is
not employed by the Company), upon reasonable notice and during normal business
hours and such other times as any such holder may reasonably request, to (i)
visit and inspect any of the properties of the Company and its Subsidiaries,
(ii) examine the corporate and financial records of the Company and its
Subsidiaries and make copies thereof or extracts therefrom and (iii) discuss
the affairs, finances and accounts of any such corporations with the directors,
officers, key employees and independent accountants of the Company and its
Subsidiaries; provided that the Company shall have the right to have its chief
financial officer present at any meetings with the Company's independent
accountants.
12. Definitions.
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"Additional Executive" means any member of the Company's senior management
who becomes a "Stockholder" in accordance with paragraph 9 of this Agreement.
"Affiliate" of the Investor means any general or limited partner of the
Investor or any other person, entity or investment fund controlling, controlled
by or under common control with the Investor.
"Closing" shall have the meaning set forth in the Purchase Agreement.
"Executive Common Stock" means (i) the Class B Common issued pursuant to
the Management Agreements and (ii) any capital stock issued or issuable with
respect to the Class B Common referred to in clause (i) above by way of stock
dividends or stock splits or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular shares of Executive Common Stock, such shares shall cease to be
Executive Common Stock when they have been (a) effectively registered under the
Securities Act and disposed of in accordance with the Registration statement
covering them or (b) distributed to the public through a broker, dealer or
market maker pursuant to Rule 144 under the Securities Act (or any similar rule
then in force).
"Fully-Diluted Basis" includes, without duplication, (i) all shares of
Common Stock outstanding at the time of determination, (ii) all shares of
Common Stock issuable upon the exercise, conversion or exchange of all
warrants, options or other rights to subscribe for or to acquire, directly or
indirectly, Common Stock, whether or not then exercisable or convertible, and
(iii) all shares of Common Stock issuable upon the conversion or exchange of
all stock or other securities which are convertible into or exchangeable for,
directly or indirectly, Common Stock, whether or not then convertible or
exchangeable.
"Indebtedness" shall have the meaning set forth in the Purchase Agreement.
"Independent Third Party" means any Person who, immediately prior to the
contemplated transaction, does not own in excess of 5% of the Company's Common
Stock on a Fully-Diluted Basis (a "5% Owner"), who is not controlling,
controlled by or under common control with any such 5% Owner and who is not the
spouse or descendent (by birth or adoption) of any such 5% Owner or a trust for
the benefit of such 5% Owner and/or such other Persons.
"Management Agreements" means the senior management agreements between the
Company and each Executive and Additional Executive, in form and substance
substantially similar to Exhibits B-1 and B-2 attached to the Purchase
Agreement.
"Permitted Transferee" means (i) in the case of any Executive and any
Additional Executive, his spouse and/or descendants (whether natural or
adopted), and any trust solely for the benefit of such person and/or his spouse
and/or descendants, and (ii) in the case of the Investor, its Affiliates.
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"Public Offering" means the sale in an underwritten public offering
registered under the Securities Act of shares of the Company's Common Stock
approved by the Board.
"Public Sale" means any sale of Stockholder Shares to the public pursuant
to an offering registered under the Securities Act or to the public through a
broker, dealer or market maker pursuant to the provisions of Rule 144 adopted
under the Securities Act.
"Sale of the Company" means any transaction or series of transactions
pursuant to which any Independent Third Party or group of Independent Third
Parties in the aggregate acquire(s) (i) capital stock of the Company possessing
the voting power (other than voting rights accruing only in the event of a
default, breach or event of noncompliance) to elect a majority of the Company's
board of directors (whether by merger, consolidation, reorganization,
combination, sale or transfer of the Company's capital stock, shareholder or
voting agreement, proxy, power of attorney or otherwise) or (ii) all or
substantially all of the Company's assets determined on a consolidated basis.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Stockholder Shares" means (i) any Common Stock purchased or otherwise
acquired by any Stockholder (including, without limitation, any shares acquired
pursuant to paragraph 16 below), (ii) any equity securities issued or issuable
directly or indirectly with respect to the Common Stock referred to in clause
(i) above by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular shares constituting Stockholder Shares,
such shares will cease to be Stockholder Shares when they have been (x)
effectively registered under the Securities Act and disposed of in accordance
with the registration statement covering them or (y) sold to the public through
a broker, dealer or market maker pursuant to Rule 144 (or any similar provision
then in force) under the Securities Act.
13. Transfers; Transfers in Violation of Agreement. Prior to transferring
any Stockholder Shares to any person or entity, the transferring Stockholder
shall cause the prospective transferee to execute and deliver to the Company
and the other Stockholders a counterpart of this Agreement. Any transfer or
attempted transfer of any Stockholder Shares in violation of any provision of
this Agreement shall be void, and the Company shall not record such transfer on
its books or treat any purported transferee of such Stockholder Shares as the
owner of such shares for any purpose.
14. Additional Stockholders. In connection with the issuance of any
additional equity securities of the Company, the Company may permit such person
to become a party to this Agreement and succeed to all of the rights and
obligations of a "Stockholder" under this Agreement by obtaining an executed
counterpart signature page to this Agreement, and, upon such execution, such
person shall for all purposes be a "Stockholder" party to this Agreement.
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15. Holdback Agreement. Each holder of Stockholder Shares shall not
effect any public sale or distribution (including sales pursuant to Rule 144)
of equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and the 180-day period beginning on the effective date of an initial Public
Offering, unless the underwriters managing such initial Public Offering
otherwise agree.
16. Antidilution.
(a) Subject to paragraph 16(c) below, if the Investor or any other
investor (including, without limitation, any Seller (as defined in the Purchase
Agreement)) shall invest up to an additional $5 million in the Company (in
addition to the $25 million investment contemplated by Sections 1B(b) and 1B(c)
of the Purchase Agreement) (the "Second Tranche"), the Company shall
simultaneously offer to sell to each Executive and Additional Executive who is
then employed by the Company or any Subsidiary (the "Eligible Executives")
12.5% of the common equity component of any such investment including, for
purposes of such calculation, any shares issued to the Eligible Executives
pursuant to this paragraph and any common equity participation accruing to the
holders of any preferential security issued in such transaction, multiplied by
a fraction, the numerator of which is the number of shares of Common Stock on a
Fully-Diluted basis then held by such Eligible Executive, and the denominator
of which is the number of shares of Common Stock on a Fully-Diluted Basis then
held by all Eligible Executives, for a price per share equal to the price per
share of common equity issued to the Investor or such other investor in such
transaction.
(b) Subject to paragraph 16(c) below, if the Investor or any other
investor (including, without limitation, any Seller) shall invest up to an
additional $5 million in the Company (in addition to the $25 million investment
contemplated by Sections 1B(b) and 1B(c) of the Purchase Agreement and the $5
million investment contemplated by paragraph 16(a) above) (the "Third
Tranche"), the Company shall simultaneously offer to sell to each Eligible
Executive 10.0% of the common equity component of any such investment
including, for purposes of such calculation, any shares issued to the Eligible
Executives pursuant to this paragraph and any common equity participation
accruing to the holders of any preferential security issued in such
transaction, multiplied by a fraction, the numerator of which is the number of
shares of Common Stock on a Fully-Diluted basis then held by such Eligible
Executive, and the denominator of which is the number of shares of Common Stock
on a Fully-Diluted Basis then held by all Eligible Executives, for a price per
share equal to the price per share of common equity issued to the Investor or
such other investor in such transaction.
(c) Notwithstanding paragraphs 16(a) and 16(b) above, the anti-dilution
protections described in such paragraphs will not apply if, at the time the
Investor or such other investor shall invest in the Second Tranche or the Third
Tranche, the Company is in monetary default under and loan facility between the
Company and any Independent Third Party. In addition, in connection with the
issuance of any shares to any Eligible Executive pursuant to paragraph 16(a) or
16(b) above, such Eligible Executive will enter into (or have entered into) an
agreement with the Company substantially in the form of the portion of the
Management Agreements entitled
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"Provisions Relating to Executive Stock," which agreement will be binding on
such Eligible Executive and the Company with respect to such shares; provided
that such shares shall be subject to a two-year vesting period which begins on
the date of issuance of such shares and vests ratably on a daily basis during
such two year period.
17. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Stockholders unless such modification,
amendment or waiver is approved in writing by the Company, the Investor, each
Executive and each Additional Executive. The failure of any party to enforce
any of the provisions of this Agreement shall in no way be construed as a
waiver of such provisions and shall not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
18. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
19. Entire Agreement. Except as otherwise expressly set forth herein,
this document embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way.
20. Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Stockholders and any subsequent
holders of Stockholder Shares and the respective successors and assigns of each
of them, so long as they hold Stockholder Shares. In addition, the rights and
obligations of the Investor under this Agreement and the agreements
contemplated hereby may be assigned by the Investor at any time, in whole or in
part, to any investment fund managed by Golder, Thoma, Cressey, Rauner, Inc.,
or any successor thereto.
21. Counterparts. This Agreement may be executed in separate counterparts
each of which shall be an original and all of which taken together shall
constitute one and the same agreement.
22. Remedies. The Company, the Investor, each Executive and each
Additional Executive shall be entitled to enforce their rights under this
Agreement specifically to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights existing in their
favor. The parties hereto agree and acknowledge that money damages may not be
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an adequate remedy for any breach of the provisions of this Agreement and that
the Company, the Investor, each Executive and each Additional Executive may in
its sole discretion apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief (without posting
a bond or other security) in order to enforce or prevent any violation of the
provisions of this Agreement.
23. Notices. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the Company at the address set forth below and to any other
recipient at the address indicated on the schedules hereto and to any
subsequent holder of Common Stock subject to this Agreement at such address as
indicated by the Company's records, or at such address or to the attention of
such other person as the recipient party has specified by prior written notice
to the sending party. Notices will be deemed to have been given hereunder when
delivered personally, three days after deposit in the U.S. mail and one day
after deposit with a reputable overnight courier service. The Company's
address is:
National Equipment Services, Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: President
24. Governing Law. The corporate law of Delaware shall govern all issued
concerning the relative rights of the Company and its stockholders. All other
questions concerning the construction, validity and interpretation of this
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Illinois, without giving effect to any choice of law or
other conflict of law provision or rule (whether of the State of Illinois or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Illinois.
25. Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
* * * * *
13
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement on the day and year first above written.
NATIONAL EQUIPMENT SERVICES, INC.
By /s/ Xxxxx X. Xxxxxxx
Its President
GOLDER, THOMA, XXXXXXX, XXXXXX
FUND IV, L.P.
By: GTCR IV, L.P.,
its General Partner
By: Golder, Thoma, Cressey, Rauner, Inc.,
its General Partner
By: /s/ Xxxx X. Xxxxx
Its: Principal
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
/s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
