WARRANT TENDER AGREEMENT
Exhibit
(d)
This
Warrant Tender Agreement (this "Agreement") is dated as of June 10, 2010, among
Essex Rental Corp., a Delaware corporation (the "Company"), and Aria Master Fund
Ltd. (the "Warrant Holder").
WHEREAS,
the Company is engaged in the offer described in the Offer Letter, dated May 10,
2010, filed as Exhibit (a)(1) to the Schedule TO of the Company filed with the
Securities and Exchange Commission on May 10, 2010, as amended (the "Schedule
TO") , pursuant to which the holders of up to 8,000,000 of the Company's
warrants (the "Warrants") to purchase the common stock (the "Common Stock"), par
value $.0001 per share, of the Company, are entitled to tender their Warrants in
exchange for Common Stock, subject to the terms and conditions set forth in the
Offer Letter;
WHEREAS,
the Offer (as defined in the Offer Letter) provides that holders of the
Company's Warrants will receive two (2) shares of Common Stock in exchanged for
every seven (7) Warrants tendered by such holder pursuant to the
Offer;
WHEREAS, the Company desires to amend
the terms of the Offer to, among other things, extend the Expiration Date (as
defined in the Offer Letter) and provide that holders of Warrants will receive
one (1) share of Common Stock for every three (3) Warrants tendered by such
Holder in the Offer (collectively, the "Amended Terms"); and
WHEREAS, in order to induce the Company
to amend the Offer to reflect the Amended Terms, the Warrant Holder has agreed
to tender the Subject Warrants (as hereinafter defined) beneficially owned by
the Warrant Holder in accordance with the terms and provisions of this Agreement
and the Offer Letter, as amended or supplemented to give effect to the Amended
Terms (the Offer Letter, as so amended, together with the related Letter of
Transmittal described therein, the "Amended Offer").
NOW,
THEREFORE, for good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Company and the Warrant Holder
agree as
follows:
1. No
later than 5:00 p.m. on the fifth (5) business day (the "Tender Date") following
the date on which the Company files an Amendment to the Schedule TO reflecting
the Amended Terms, the Warrant Holder shall validly tender for exercise pursuant
to and in accordance with the terms and conditions of the Amended Offer a number
of Warrants equal to or greater than the number of Warrants set forth opposite
the Warrant Holder's name in Schedule I hereto (the "Subject
Warrants"). The Warrant Holder shall not withdraw the tender of any
of the Subject Warrants at any time prior to June 30, 2010; provided, however, that the
Warrant Holder shall have the right to withdraw its tender of such portion of
the Subject Warrant as is required to prevent the Warrant Holder from
collectively owning more than 19.9% of the Company's issued and outstanding
common stock after giving effect to the completion of the Amended Offer; provided further,
that for purposes of the calculation in the foregoing proviso, and for the
avoidance of doubt, the shares of Common Stock owned by the Warrant Holder shall
only include (i) shares of Common Stock owned of record or in "street name" by
the Warrant Holder as of the Expiration Date (including shares of Common Stock
forming a constituent part of any of the Company's Units owned by the Warrant
Holder as of the Expiration Date); and (ii) shares of Common Stock issued to (or
for the account of) the Warrant Holder pursuant to the Amended Offer, but shall
not include shares of Common Stock underlying any Warrants owned of record or in
street name by the Warrant Holder which are not tendered pursuant to the Amended
Offer, or are tendered and subsequently withdrawn pursuant to the Amended Offer
and in accordance with this Section 1.
2. The
Warrant Holder acknowledges that pursuant to the Amended Offer the Company will
accept a maximum of 8,000,000 Warrants validly tendered by holders of the
Warrants, and, if the Amended Offer is oversubscribed because more than
8,000,000 Warrants are validly tendered in the Amended Offer and not validly
withdrawn prior to the Expiration Date, the Company will accept the Warrants
tendered by all holders of the Warrants (including the Warrant Holder) on a pro
rata basis, based on the ratio of the number of Warrants validly tendered and
not validly withdrawn by the Warrant Holder to the total number of Warrants
validly tendered and not validly withdrawn by all holders of the Warrants, all
in accordance with the proration provisions set forth in the Offer
Letter.
3. The
Warrant Holder hereby represents and warrants to the Company as
follows:
(a) The
Warrant Holder is an entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization with the
requisite power and authority to enter into and to consummate the transactions
contemplated by this Agreement. The execution and delivery of this Agreement by
the Warrant Holder, and the performance by the Warrant Holder of the
transactions contemplated by this Agreement, have been duly authorized by all
necessary action on the part of the Warrant Holder. This Agreement has been duly
executed by the Warrant Holder and constitutes the valid and legally binding
obligation of the Warrant Holder, enforceable against it in accordance with its
terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, or similar laws relating to or affecting the enforcement of
creditors' rights generally and (ii) as limited by equitable principles
generally.
(b) The
Warrant Holder has independently evaluated the merits of its decision to
exercise its Warrants as provided in this Agreement and in accordance with the
Offer Letter (as the same shall be amended to reflect the Amended Terms), such
decision has been independently made by the Warrant Holder and the Warrant
Holder confirms that it has only relied on the advice of its own business and/or
legal counsel and not on the advice of the Company or its
counsel.
(c) The
Warrant Holder (i) understands that there may exist material non-public
information concerning the business, affairs or financial condition
of the Company that has not been made available to the Warrant Holder or
disclosed to the Warrant Holder by the Company, and that the Company has made no
representations to the Warrant Holder concerning the Company or its business,
affairs, financial condition or plans or proposals, (ii) has determined to enter
into this Agreement even though the Warrant Holder does not have any such
information described in clause (i) above, having made its own investment
decision and not relying on the absence of any such information or any such
representation from the Company, and (iii) waives any claims it may have or may
hereafter possess against the Company for failure to disclose to the Warrant
Holder any such material non-public information. The Warrant Holder (i)
understands that the Company is relying on the truth of the Warrant Holder's
representations and agreements set forth in this Section 3 and (ii) irrevocably
authorizes the Company to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
4. The
Warrant Holder covenants and agrees that it shall not purchase or sell, or cause
to be purchased or sold any of the Company's securities for a period commencing
immediately upon the execution of this Agreement and ending two business days
following the filing of an amendment to the Schedule TO reflecting the Amended
Terms and the existence and material terms of this Agreement.
5. The
Warrant Holder acknowledges and agrees that nothing contained in this Agreement
is intended to obligate, and shall not obligate, the Company to amend the terms
of the Offer (on the Amended Terms or otherwise).
6. Except
as expressly provided herein, including, without limitation, the agreements and
restrictions set forth in Section 1 of this Agreement, nothing contained in this
Agreement shall prohibit the Warrant Holder from participating in any amended or
additional tender offer made by the Company to the holders of the Warrants upon
the same terms and conditions that may be offered to the other holders of the
Warrants pursuant to such amended or additional offer.
7. This
Agreement shall terminate upon the earlier to occur of (i) June 30, 2010 and
(ii) the filing by the Company with the Securities and Exchange Commission of an
amendment to the Offer which results in fewer than one share of Common Stock
being issuable in exchange for every three Warrants tendered in the
Offer.
8. Miscellaneous.
(a) Entire Agreement.
This Agreement contains the entire understanding of the parties with respect to
the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into this Agreement.
(b) Amendments; Waivers.
No provision of this Agreement may be amended or waived except in a written
instrument signed by the waiving party or, in the case of
an amendment, by the Company and the Warrant Holder. No
waiver of any default with respect to any provision, condition or requirement of
this Agreement shall be deemed to be a continuing waiver in the future or a
waiver of any subsequent default or a waiver of any other provision, condition
or requirement hereof, nor shall any delay or omission of either party to
exercise any right hereunder in any manner impair the exercise of any such
right.
(c) Construction. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. This Agreement shall be construed as if drafted jointly by the parties,
and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any provisions of this
Agreement.
(d) No Third-Party
Beneficiaries. This Agreement is intended for the benefit of the parties
hereto and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
(e) Governing Law. All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof.
(f) Survival. The
representations, warranties, agreements and covenants contained
herein shall survive the tender of the Warrants and the issuance of Common Stock
in connection therewith.
(g) Execution. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile signature page were an original
thereof.
IN
WITNESS WHEREOF, the parties hereto have caused this Warrant Tender Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
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ARIA
MASTER FUND LTD.
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By:
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/s/ Xxxxxx Xxxxxxx
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By:
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/s/ Xxxxxx X.
Xxxxx
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Schedule
I
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Warrant Holder
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Number of Warrants
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ARIA
MASTER FUND LTD
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1,493,850
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