EXHIBIT 1.1
______________ SHARES
RENTAL SERVICE CORPORATION
COMMON STOCK, PAR VALUE $.01 PER SHARE
UNDERWRITING AGREEMENT
___________, 1997
_____________, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Company, L.L.C.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
RENTAL SERVICE CORPORATION, a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters (as defined below) shares
of its Common Stock, par value $.01 per share (the "Firm Shares").
It is understood that, subject to the conditions hereinafter stated,
___________ Firm Shares will be sold to the several Underwriters named in
Schedule I hereto (the "Underwriters") in connection with the offering and sale
of such Firm Shares. Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx Xxxxx &
Company, L.L.C. shall act as representatives (the "Representatives") of the
several Underwriters.
The Company proposes to issue and sell to the several Underwriters not more
than an additional ____________ shares of its Common Stock, par value $.01 per
share, and certain stockholders of the Company (collectively, the "Selling
Stockholders") named in Schedule II hereto severally propose to sell to the
several Underwriters the additional number of shares of the Common Stock, par
value $.01 per share, of the Company set forth in Schedule II hereto opposite
the name of each Selling Stockholder, for a total of not more than an additional
750,000 shares to be sold by the Company and such Selling Stockholders (the
"Additional Shares"), if and to the extent that the Representatives exercise, on
behalf of the Underwriters, the right to purchase such shares of common stock
granted to the Underwriters in Article II hereof. The Additional Shares, if any,
purchased by the Underwriters hereunder and the Firm Shares are hereinafter
collectively referred to as the "Shares." The shares of Common Stock, par value
$.01 per share, of the Company to be outstanding after giving effect to the
sales contemplated hereby are hereinafter referred to as the "Common Stock." The
Company and the Selling Stockholders are hereinafter sometimes collectively
referred to as the "Sellers."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (File No. 333-____) relating
to the Shares. The registration statement contains a prospectus to be used in
connection with the offering and
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sale of the Shares. The registration statement as amended at the time it becomes
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement;" the prospectus in the form first
filed with the Commission pursuant to Rule 424(b), or, if no filing pursuant to
Rule 424(b) is made, in the form first used to confirm sales of Shares, is
hereinafter referred to as the "Prospectus." If the Company has filed an
abbreviated registration statement to register additional shares of Common Stock
pursuant to Rule 462(b) under the Securities Act (the "Rule 462(b) Registration
Statement"), then any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462(b) Registration Statement.
I.
REPRESENTATIONS OF THE COMPANY
The Company represents and warrants to and agrees with the several
Underwriters and the Selling Stockholders that:
(a) The Registration Statement has become effective; no stop order
issued by the Commission suspending the effectiveness of the Registration
Statement is in effect, and, to our knowledge, no proceedings for such
purpose are pending before or threatened by the Commission.
(b) (i) Each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or supplemented,
if applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iii) the
Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
representations and warranties set forth in this Article I, paragraph (b)
do not apply to statements or omissions in the Registration Statement or
the Prospectus based upon information relating to any Underwriter or
Selling Stockholder furnished to the Company in writing by such Underwriter
through you or by such Selling Stockholder expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as
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described in the Prospectus and is duly qualified to transact business as a
foreign corporation under the laws of, and is in good standing in, each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; and no proceeding of which the Company has knowledge has been
instituted in any such jurisdiction revoking, limiting or curtailing, or
seeking to revoke, limit or curtail, such power and authority or
qualification.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business as a foreign corporation under
the laws of, and is in good standing in, each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole; and no proceeding of
which the Company has knowledge has been instituted in any such
jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit
or curtail, such power and authority or qualification.
(e) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(f) The shares of Common Stock (including the Shares to be sold by the
Selling Stockholders) outstanding prior to the issuance of the Shares have
been duly authorized and are validly issued, fully paid and non-assessable,
and are listed on the New York Stock Exchange.
(g) The Shares to be sold by the Company have been duly authorized
and, when issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable; the
issuance of such Shares will not be subject to any preemptive or similar
rights; and the Shares have been listed on the New York Stock Exchange
subject to notice of issuance or sale, as the case may be.
(h) This Agreement has been duly authorized, executed and delivered by
the Company.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not breach or
contravene (i) any provision of applicable law, (ii) the certificate of
incorporation or bylaws of the Company, or (iii) any other agreement or
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or (iv) any
judgment, order or decree binding on the Company or any subsidiary of any
governmental body, agency or court having
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jurisdiction over the Company or any subsidiary, except for any breach or
contravention which, singly or in the aggregate, would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole; and
no consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, except such as may be required by
the Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares and clearance with the
National Association of Securities Dealers, Inc. ("NASD").
(j) There are no (i) legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described, other proceedings that, if decided
adversely to the Company or such subsidiaries, would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole, or on
the power or ability of the Company to perform its obligations under (1)
this Agreement, (2) the Stock Purchase Agreement dated October 6, 1997
among Xxxxx X. Xxxxxx ("DPL"), the Lanoha Charitable Remainder Trust, the
National Christian Charitable Foundation, the Xxxxxxx X. Xxxxxx Family
Trust, RSC Acquisition Corp. ("RSCAC"), the Company and Rent-it-Center,
Inc.; the Asset Purchase Agreement dated October 6, 1997 among DPL, RSCAC,
the Company and Center Rental & Sales/Omaha, LLC; the Asset Purchase
Agreement dated October 6, 1997 among DPL, RSCAC, the Company and Lanoha
Leasing Limited Liability Company; and the Asset Purchase Agreement dated
October 6, 1997 among DPL, RSCAC, the Company and Zuni Rental Enterprises
L.L.C. (collectively, the "Center Acquisition Agreements") or (3) the Stock
Purchase Agreement among Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxxxx, the Trustees
(as defined therein), RSC Alabama, Inc., the Company and Xxxxx Rental &
Sales Co., Inc. (the "Xxxxx Stock Purchase Agreement") or to consummate the
transactions contemplated by the Prospectus; and (ii) statutes,
regulations, contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement that are not described or filed as required.
(k) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license
and use its properties and assets and to conduct its business in the manner
described in
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the Prospectus, except to the extent that the failure to obtain or file
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(l) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the rules and regulations
of the Commission thereunder.
(m) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(n) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(o) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or
in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(p) The Center Acquisition Agreements have been duly authorized,
executed and delivered by, and are valid and binding agreements of, the
Company, enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration,
if applicable, and the availability of equitable remedies may be limited by
equitable principles of general applicability.
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(q) The Amended and Restated Credit Agreement dated as of September
24, 1996, and as amended on January 31, 1997 (the "Revolver"), among Acme
Alabama, Inc., Acme Dixie Inc., Acme Xxxxx Inc., Acme Rents, Inc., The Air
& Pump Company, Xxxxxx Xxxxx Equipment, Inc., RSC Acquisition Corp., RSC
Holdings, Inc., Rental Service Corporation, Bankers Trust Company, BT
Commercial Corporation and the financial institutions identified on Annex I
thereto has been duly amended to provide for borrowing availability in the
aggregate of up to $500 million in accordance with the description thereof
contained in the Prospectus and the Company has obtained all required
consents or waivers under the Revolver necessary to consummate the offering
of the Securities as described in the Prospectus.
(r) Neither the Company nor any of its subsidiaries is in violation of
its certificate of incorporation or bylaws or in default in the performance
or observance of any obligation, agreement, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties or assets may be bound, except for such defaults as singly or in
the aggregate do not and will not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(s) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of the
Company and its subsidiaries, in each case free and clear of all liens
(except liens for taxes not yet due and payable), encumbrances and defects,
except such as are described in the Prospectus, such as do not materially
affect the value of such property and do not interfere with the use made
and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries, in each case
except as described in or contemplated by the Prospectus.
(t) The Company and its subsidiaries own or possess all right, title
and interest in and to, or have duly licensed from third parties, all
patents, patent rights, trade secrets, inventions, know-how, trademarks,
trade names, copyrights, service marks and other proprietary rights
(collectively, "Trade Rights"), if any, that are material to the business
of the Company and its subsidiaries, taken as a whole; neither the Company
nor any of its subsidiaries have received any notice of infringement,
misappropriation or conflict from any third party as to such material Trade
Rights that has not been resolved or disposed of and, to the knowledge of
the Company, neither the Company nor any of its subsidiaries has infringed,
misappropriated or otherwise conflicted with the material Trade Rights of
any third parties, except for such infringements, misappropriations or
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conflicts as, singly or in the aggregate, would not have a material adverse
effect on the Company or its subsidiaries, taken as a whole.
(u) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the business in which they are
engaged; neither the Company nor any such subsidiary has been refused any
insurance coverage sought or applied for; and neither the Company nor any
subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not materially and adversely affect the
condition, financial or otherwise, or the earnings, business or operations
of the Company and its subsidiaries, taken as a whole, except as described
in or contemplated by the Prospectus.
(v) There are no holders of securities of the Company having rights to
registration thereof or preemptive rights to purchase capital stock of the
Company, except as disclosed in the Prospectus; and holders of registration
rights who are not Selling Stockholders have received proper notice from
the Company with respect to such rights and have not exercised such rights
with respect to the offering being made by the Prospectus.
(w) The Company has complied and as of the date hereof is in
compliance with all provisions of Section 517.075, Florida Statutes
(Chapter 92-198, Laws of Florida).
(x) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as
contemplated by the Registration Statement, the Company and its
subsidiaries, taken as a whole, have not incurred any material liabilities
or obligations, direct or contingent, nor entered into any material
transactions not in the ordinary course of business and there has not been
any material adverse change in their condition (financial or otherwise) or
results of operations nor any material adverse change in their capital
stock, short-term debt or long-term debt.
(y) The combined financial statements and schedules of the Company and
its subsidiaries included in the Registration Statement and the Prospectus
fairly present the financial position of the Company and the results of
operations and cash flows as of the dates and periods therein specified.
Such financial statements and schedules have been prepared in accordance
with generally accepted accounting principles consistently applied
throughout the periods specified therein (except as otherwise noted
therein). The selected financial data set forth in the Prospectus under
the caption "Selected Historical
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Consolidated Financial and Operating Data" fairly present, on the basis
stated in the Prospectus, the information included therein.
(z) No labor dispute with the employees of the Company or any of its
subsidiaries exists or is threatened or imminent that could result in a
material adverse change in the condition, financial or otherwise, or in the
management, business prospects, earnings, business or operations of the
Company and its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus.
(aa) Except as set forth in the Revolver, no subsidiary of the Company
is currently prohibited pursuant to an agreement, directly or indirectly,
from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or
any other subsidiary of the Company, except as described in or contemplated
by the Prospectus.
II.
REPRESENTATIONS AND WARRANTIES OF THE
SELLING STOCKHOLDERS
Each Selling Stockholder, severally and not jointly, represents and
warrants to, and agrees with the Company and each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and the
performance by such Selling Stockholder of its obligations under, this
Agreement, the Custody Agreement signed by such Selling Stockholder and
Xxxxxx X. Xxxxxx, as custodian (the "Custodian"), relating to the deposit
of the Shares to be sold by such Selling Stockholder (the "Custody
Agreement") and the Power of Attorney appointing Xxxxxx X. Xxxx and Xxxxxx
X. Xxxxxx (individually and collectively, the "Agent") as such Selling
Stockholder's attorney-in-fact to the extent set forth therein, relating to
the transactions contemplated hereby and by the Registration Statement (the
"Power of Attorney"), will not contravene any provision of applicable law
or any agreement or other instrument binding upon such Selling Stockholder
or any judgment, order or decree of any governmental body, agency or court
having jurisdiction over such Selling Stockholder and which would have a
material adverse effect on such Selling Stockholder's ability to perform
its obligations under this Agreement, the Custody Agreement and the Power
of Attorney. No consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by such Selling Stockholder of its obligations under this
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Agreement, the Custody Agreement or the Power of Attorney of such Selling
Stockholder, except for compliance with the Securities Act and such as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of such Shares and clearance with the
NASD.
(c) Such Selling Stockholder has, and on the Closing Date will have,
valid title to the Shares to be sold by such Selling Stockholder and the
legal right and power, and authority, to enter into this Agreement, the
Custody Agreement and the Power of Attorney and to sell, transfer and
deliver the Shares to be sold by such Selling Stockholder.
(d) Delivery of the Shares to be sold by such Selling Stockholder
pursuant to this Agreement will pass title to such Shares free and clear of
any security interests, claims, liens, equities and other encumbrances.
(e) The Custody Agreement and the Power of Attorney have been duly
authorized, executed and delivered by such Selling Stockholder and are
valid and binding agreements of such Selling Stockholder.
(f) The Shares to be sold hereunder by such Selling Stockholder on
deposit with the Custodian are subject to the interests of the Company, the
Underwriters and the other Selling Stockholders, that the arrangements made
for such custody, and the appointment of agents pursuant to a Power of
Attorney, are to that extent irrevocable, and that obligations of such
Selling Stockholder hereunder and under the Power of Attorney and the
Custody Agreement shall not be terminated except as provided in this
Agreement, the Power of Attorney or the Custody Agreement by any act of
such Selling Stockholder, by operation of law or otherwise.
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(g) As to each Selling Stockholder, (i) each part of the Registration
Statement, solely with respect to information provided in writing by such
Selling Stockholder for inclusion therein, when such part became effective,
did not contain and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) the Registration Statement
and the Prospectus, solely with respect to information provided in writing
by such Selling Stockholder for inclusion therein, comply and, as amended
or supplemented, if applicable, will comply in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iii) the Prospectus, solely with respect to
information provided in writing by such Selling Stockholder for inclusion
therein, does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
--------
neither clause (i), (ii) or (iii) shall have any effect if information has
been given by such Selling Stockholder to the Company and the
Representatives in writing which would eliminate or remedy any such untrue
statement or omission, and it is agreed that the only information provided
with respect to each Selling Stockholder is such information as set forth
in the Prospectus under the caption "Principal and Selling Stockholders"
that specifically relates to such Selling Stockholder.
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III.
AGREEMENTS TO SELL AND PURCHASE
The Company hereby agrees to sell to the several Underwriters, and the
Underwriters, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agree, severally
and not jointly, to purchase from the Company, the respective numbers of Firm
Shares set forth in Schedule I hereto opposite their names at $_____ a share
(the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company and the Selling
Stockholders agree to sell to the Underwriters the Additional Shares, and the
Underwriters shall have a one-time right to purchase, severally and not jointly,
up to _________ Additional Shares at the Purchase Price. If the
Representatives, on behalf of the Underwriters, elect to exercise such option,
the Representatives shall so notify the Selling Stockholders in writing not
later than 30 days after the date of this Agreement, which notice shall specify
the number of Additional Shares to be purchased by the Underwriters and the date
on which such shares are to be purchased. Such date may be the same as the
Closing Date (as defined below) but not earlier than the Closing Date, not later
than ten business days after the date of such notice. Additional Shares may be
purchased as provided in Article V hereof solely for the purpose of covering
overallotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each Underwriter agrees, severally and
not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the Representatives may determine)
that bears the same proportion to the total number of Additional Shares to be
purchased as the number of Firm Shares set forth in Schedule I hereto opposite
the name of such Underwriter bears to the total number of Firm Shares.
Each Seller hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the Prospectus, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of, directly or indirectly, any shares
of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether such transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence does not apply (A) to
the Shares to be sold hereunder, (B) to the issuance by the Company of shares of
Common Stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof of which the Underwriters have been
advised in writing, (C) to any options granted or shares of Common Stock issued
pursuant to existing benefit plans of the Company (D) with respect to any
Selling
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Stockholder, to any sale of shares of Common Stock which are subject to an
existing pledge or other security arrangement on the date hereof of which the
Underwriters have been advised in writing, in good faith pursuant to the terms
of such pledge or arrangement, or (E) the issuance of shares of Common Stock in
pursuant to the Center Acquisition Agreements or in connection with other
acquisitions. In addition, each Selling Stockholder agrees that, without the
prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the
Underwriters, it will not, during the period ending 90 days after the date of
the Prospectus, make any demand for, or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock.
IV.
TERMS OF PUBLIC OFFERING
The Sellers are advised by you that the Underwriters propose to make a
public offering of their respective portions of the Shares as soon after the
Registration Statement and this Agreement have become effective as in your
judgment is advisable. The Sellers are further advised by you that the Shares
are to be offered to the public initially at U.S.$____ a share (the "Public
Offering Price") and to certain dealers selected by you at a price that
represents a concession not in excess of U.S.$____ a share under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of U.S.$____ a share, to any Underwriter or
to certain other dealers.
V.
PAYMENT AND DELIVERY
Payment for the Firm Shares shall be made by federal or other funds
immediately available in New York City against delivery of such Firm Shares for
the respective accounts of the several Underwriters at the office of Xxxxxx
Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M.,
local time, on __________, 1997, or at such other time on the same or such other
date, not later than __________, 1998, as shall be designated in writing by you.
The time and date of such payment are hereinafter referred to as the "Closing
Date."
Payment for any Additional Shares shall be made, for Additional Shares
sold by the Company to the Company, and, for Additional Shares sold by the
Selling Stockholders, to the Custodian for the benefit of the Selling
Stockholders, in federal or other funds immediately available in New York City
against delivery of such Additional Shares for the respective
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accounts of the several Underwriters at the office of Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., local time, on
the date specified in the notice, delivered pursuant to Article IV hereof, from
the Underwriters to the Selling Stockholders of their determination to purchase
Additional Shares (the "Option Closing Date").
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than two full business days prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the purchase price therefor.
VI.
CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS
The obligations of the Company and the several obligations of the
Underwriters hereunder are subject to the condition that the Registration
Statement shall have become effective not later than the date hereof.
The several obligations of the Underwriters hereunder are subject to
the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, from that set forth in the Registration
Statement that, in your judgment, is material and adverse and that makes
it, in your judgment, impracticable to market the Shares on the terms and
in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the Closing
Date and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
14
(c) You shall have received on the Closing Date an opinion of Xxxxxx
& Xxxxxxx, counsel for the Company, dated the Closing Date, in a form
mutually agreeable to the parties hereto
(d) You shall have received on the Closing Date an opinion of counsel
for each of the Selling Stockholders, dated the Closing Date, to the effect
that:
(i) this Agreement has been duly authorized, executed and
delivered or on behalf of the Selling Stockholders;
(ii) the execution and delivery by each Selling Stockholder of,
and the performance by each Selling Stockholder of its obligations
under, this Agreement, the Custody Agreement and the Power of Attorney
of such Selling Stockholder will not contravene any provision of
applicable law or, to the best of such counsel's knowledge, any
agreement or other instrument binding upon such Selling Stockholder
or, to the best of such counsel's knowledge, any judgment or decree of
any governmental body, agency or court having jurisdiction over such
Selling Stockholder and which would have a material adverse effect on
such Selling Stockholder's ability to perform its obligations under
this Agreement, the Custody Agreement and the Power of Attorney. No
consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by such
Selling Stockholder of its obligations under this Agreement,
15
the Custody Agreement or the Power of Attorney of such Selling
Stockholder except for compliance with the Securities Act and such as
may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares by the
Underwriters;
(iii) each of the Selling Stockholders has the legal right and
power, and authority, to enter into this Agreement, the Custody
Agreement and the Power of Attorney of such Selling Stockholder and to
sell, transfer and deliver the Shares to be sold by such Selling
Stockholder;
(iv) the Custody Agreement and the Power of Attorney of such
Selling Stockholder have been duly authorized, executed and delivered
by such Selling Stockholder and are valid and binding obligations of
such Selling Stockholder; and
(v) delivery of the Shares to be sold by each Selling Stockholder
pursuant to this Agreement will pass good and marketable title to such
Shares free and clear of any security interests, claims, liens,
equities and other encumbrances.
(e) You shall have received on the Closing Date an opinion of Shearman
& Sterling, special counsel for the Underwriters, dated the Closing Date,
covering the matters referred to in subparagraphs (v), (vi), (viii) (but
only as to the statements in the Prospectus under "Description of Capital
Stock" and "Underwriters"), (xi) and (xii) of paragraph (c) above.
With respect to subparagraph (xii) of paragraph (c) above, Xxxxxx &
Xxxxxxx and Shearman & Sterling may state that their opinions and beliefs
are based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and
review and discussion of the contents thereof, but are without independent
check or verification except as specified. With respect to paragraph (d)
above, counsel for each of the Selling Stockholders may rely upon an
opinion or opinions of counsel for any Selling Stockholders and, with
respect to factual matters and to the extent such counsel deems
appropriate, upon the representations of each Selling Stockholder contained
herein and in the Custody Agreement and Power of Attorney of such Selling
Stockholder and in other documents and instruments; provided that (A) each
--------
such counsel for the Selling Stockholders is satisfactory to your counsel,
(B) a copy of each opinion so relied upon is delivered to you and is in
form and substance satisfactory to your counsel, (C) copies of such Custody
Agreements and Powers of Attorney and of any such other documents and
instruments shall be delivered to you and shall be in form and substance
satisfactory to your counsel and (D) counsel for each of the Selling
Stockholders shall state in their opinion that they are justified in
relying on each such other opinion.
16
The opinions of Xxxxxx & Xxxxxxx and counsel for each of the Selling
Stockholders described in paragraphs (c) and (d) above (and any opinions of
counsel for any Selling Stockholder referred to in the immediately
preceding paragraph) shall be rendered to you at the request of the Company
or one or more of the Selling Stockholders, as the case may be, and shall
so state therein.
(f) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, in form and substance satisfactory to you, from each of Ernst
& Young LLP, McGladrey & Xxxxxx, LLP and Xxxxxxxxx & Xxxxxxxx, P.C.,
independent public accountants, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(g) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and certain stockholders, officers and
directors of the Company listed on Schedule III hereto relating to sales of
shares of common stock of the Company or any securities convertible into or
exercisable or exchangeable for such common stock, delivered to you on or
before the date hereof, shall be in full force and effect on the Closing
Date.
(h) You shall receive such further certificates and documents as you
may reasonably request.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the Representatives on the
Option Closing Date of such documents as they may reasonably request with
respect to the good standing of the Company, the due authorization and issuance
of the Additional Shares and other matters related to the issuance of the
Additional Shares.
VII.
COVENANTS OF THE COMPANY
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish to you, without charge, three (3) signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus and any supplements and
amendments thereto or to the Registration Statement as you may reasonably
request.
17
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and to file no such proposed amendment or supplement to which
you reasonably object.
(c) If, during such period after the first date of the public offering
of the Shares the Prospectus is required by law to be delivered under the
Securities Act in connection with sales by an Underwriter or dealer, any
event shall occur or condition exist as a result of which it is necessary
to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered
to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the Underwriters
and to the dealers (whose names and addresses you will furnish to the
Company) to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to pay all expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with any
review of the offering of the Shares by the NASD. The Company shall not be
required to qualify as a foreign corporation or to file a general consent
to service of process in any such jurisdiction where it is not currently
qualified or where it would be subject to taxation as a foreign
corporation.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earnings statement covering the twelve-
month period ending December 31, 1998 that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
VIII.
INDEMNITY AND CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section
18
20 of the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by any Underwriter or any such controlling person in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary prospectus
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by 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, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(b) Each Selling Stockholder agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, and each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by 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, but only with reference to information relating to such
Selling Stockholder furnished in writing by or on behalf of such Selling
Stockholder expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Selling Stockholders, the directors of the
Company, the officers of the Company who sign the Registration Statement and
each person, if any, who controls the Company or any Selling Stockholder within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of
19
the two preceding paragraphs, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of Underwriters,
such firm shall be designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated.
In the case of any such separate firm for the Company, and such directors,
officers and control persons of the Company, such firm shall be designated in
writing by the Company. In the case of any such separate firm for the Selling
Stockholders, such firm shall be designated in writing by the persons named as
attorneys-in-fact for the Selling Stockholders under the Powers of Attorney. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(e) If the indemnification provided for in the first, second or third
paragraph of this Article IX is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
20
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Sellers on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Sellers on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Sellers on the one hand and the Underwriters
on the other hand in connection with the offering of the Shares shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of the Shares (before deducting expenses) received by each Seller and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate public offering price of the Shares. The relative fault of the Sellers
on the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Sellers or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Article IX are several in proportion
to the respective number of Shares they have purchased hereunder, and not joint.
(f) The Sellers and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Article IX were determined by pro
---
rata allocation (even if the Underwriters were treated as one entity for such
----
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article IX, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Article IX are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
21
(g) The indemnity and contribution provisions contained in this
Article IX and the representations and warranties of the Company and the Selling
Stockholders contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, any Selling Stockholder or any person controlling any Selling
Stockholder, or the Company, its officers or directors or any person controlling
the Company and (iii) acceptance of and payment for any of the Shares.
IX.
TERMINATION
This Agreement shall be subject to termination by notice given by you
to the Company, if (a) after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of major armed hostilities
or any change in financial markets or any calamity or crisis that, in your
reasonable judgment, is material and adverse and (b) in the case of any of the
events specified in clauses (a)(i) through (iv), such event singly or together
with any other such event makes it, in your judgment, impracticable to market
the Shares on the terms and in the manner contemplated in the Prospectus.
X.
EFFECTIVENESS; DEFAULTING UNDERWRITERS
This Agreement shall become effective upon the later of (x) execution
and delivery hereof by the parties hereto and (y) release of notification of the
effectiveness of the Registration Statement by the Commission.
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their
22
respective names in Schedule I bears to the aggregate number of Firm Shares set
forth opposite the names of all such nondefaulting Underwriters, or in such
other proportions as you may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the number of Shares that any
--------
Underwriter has agreed to purchase pursuant to Article II be increased pursuant
to this Article XI by an amount in excess of one-ninth of such number of Shares
without the written consent of such Underwriter. If, on the Closing Date or the
Option Closing Date, as the case may be, any Underwriter or Underwriters shall
fail or refuse to purchase Shares and the aggregate number of Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Shares to be purchased on such date, and arrangements satisfactory to
you and the Company for the purchase of such Shares are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter, the Company or the Selling Stockholders. In
any such case either you or the Company shall have the right to postpone the
Closing Date or the Option Closing Date, as the case may be, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of any Seller to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason any Seller shall be unable to perform its obligations under this
Agreement, the Seller will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
XI.
COUNTERPARTS
This Agreement may be signed in two or more counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
XII.
23
HEADINGS
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
XIII.
APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Very truly yours,
RENTAL SERVICE CORPORATION
By______________________________
Name:
Title:
The Selling Stockholders named in Schedule
II hereto, acting severally
By______________________________
[________________]
Attorney-in-fact
Accepted, ___________, 1997
XXXXXX XXXXXXX & CO.
INCORPORATED
XXXXXXX XXXXX & CO., L.L.C.
Acting severally on behalf of themselves
and the several Underwriters
named in Schedule I hereto.
By Xxxxxx Xxxxxxx & Co.
Incorporated
By__________________________
SCHEDULE I
Underwriters
------------
Number of
Firm Shares
Underwriter To Be Purchased
----------- ---------------
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Company, L.L.C.
SCHEDULE II
Selling Stockholders
--------------------
Number of
Additional Shares
Selling Stockholder To Be Sold
------------------- -----------------
[Names of Selling Stockholders to be added]
SCHEDULE III
Lock-up Agreements
------------------
[TO COME]
EXHIBIT A
---------
Form of Lock-up Agreement
-------------------------
_____________, 199_
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Company, L.L.C.
c/o Morgan Xxxxxxx & Co., Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx"), as Representative of the several Underwriters, proposes to enter into
an underwriting agreement (the "Underwriting Agreement") with Rental Service
Corporation (the "Company") and certain stockholders of the Company (the
"Selling Stockholders") providing for the public offering (the "Public
Offering") by the several Underwriters, including Xxxxxx Xxxxxxx (the
"Underwriters"), of ___________ shares of Common Stock, par value $.01 per
share, of the Company (the "Firm Shares") to be issued and sold by the Company
and up to an additional __________ shares of Common Stock, par value $.01 per
share, of the Company (the "Additional Shares") to be sold by the Selling
Stockholders. The Firm Shares and the Additional Shares are hereinafter
referred to as the "Shares."
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 90 days after the date of the final prospectus relating
to the Public Offering (the "Prospectus"), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
(provided that such shares or securities are either now owned by the undersigned
or are hereafter acquired prior to or in connection with the Public Offering),
or (2) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of such shares
of Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (a) the sale of
any Shares to the Underwriters pursuant to the Underwriting Agreement or (b)
transactions relating to the grant of stock options and purchase rights to
employees of the Company under the 1995 Plan,
A-2
the 1996 Plan and the QSP Plan (each, as defined in the Prospectus), the sale of
any shares of Common Stock that are subject to an existing pledge or other
security arrangement in good faith pursuant to the terms of such pledge or
arrangement, or the issuance of shares of Common Stock in connection with the
Center Acquisitions (as defined in the Prospectus) and other acquisitions. In
addition, the undersigned agrees that, without the prior written consent of
Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 90 days after the date of the
Prospectus, make any demand for or exercise any right with respect to the
registration of shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company, the Selling Stockholders and the Underwriters.
Very truly yours,
_____________________________
Name:
Address:
