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EXHIBIT 2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of January 20, 1999 (the
"Agreement"), between the undersigned holders (collectively the "Holders" and
each a "Holder") of shares of the common stock, $.01 par value (the "NationsRent
Common Stock"), of NATIONSRENT, INC., a Delaware corporation ("NationsRent"),
and RENTAL SERVICES CORPORATION, a Delaware corporation ("RSC").
RECITALS
NationsRent and RSC propose to enter into an Agreement and
Plan of Merger dated the date hereof (the "Merger Agreement"; capitalized terms
not otherwise defined herein being used herein as therein defined), pursuant to
which NationsRent would be merged (the "Merger") with and into RSC, and each
outstanding share of NationsRent Common Stock would be converted into the right
to receive 0.355 of a share (collectively, "RSC Shares") of RSC Common Stock;
As a condition of its entering into the Merger Agreement, RSC
has requested each Holder to agree, and each Holder has agreed, to enter into
this Agreement;
Prior to the date hereof, RSC and the Holders had no
agreement, arrangement or understanding (as such terms are used in Section 203
of the Delaware General Corporation Law (the "DGCL")) for the purpose of
acquiring, holding, voting or disposing of shares of NationsRent Common Stock;
and
In consideration for the agreements contained herein, prior to
the execution hereof, and prior to RSC becoming an "interested stockholder" for
purposes of Section 203 of the DGCL, the board of the directors of NationsRent
has approved this Agreement, the Merger Agreement and the transactions
contemplated hereby and thereby, including the agreement of the Holders to vote
as provided in Section 2 of this Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE HOLDERS. Each Holder, with
respect to itself and its Subject Securities, represents and warrants, severally
and not jointly, to RSC as follows:
A. OWNERSHIP OF SECURITIES. Each Holder is, as of the date
hereof, the record and/or beneficial owner of the number of shares of
NationsRent Common Stock (the "Existing Securities") (together with any
shares of NationsRent
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Common Stock or other securities of NationsRent hereafter acquired by
the Holder and reduced by and such shares or other securities hereafter
disposed of by Holder, the "Subject Securities") set forth on the
signature page to this Agreement. Such Holder does not beneficially or
of record own any securities of NationsRent on the date hereof other
than the Existing Securities. The Holder has sole voting power and sole
power to issue instructions with respect to the voting of the Existing
Securities, sole power of disposition, sole power of exercise and the
sole power to demand appraisal rights, except as described on Schedule
1.A, in each case with respect to all of the Existing Securities,
except as indicated on said Schedule and, on the date of the
NationsRent Stockholders Meeting (as defined in the Merger Agreement),
will have the sole voting power and power to issue instructions with
respect to the voting of all of such Holder's Subject Securities, the
sole powers of disposition, exercise and the sole power to demand
appraisal rights, in each case with respect to all of such Holder's
Subject Securities, except as described on Schedule 1.A.
B. POWER; BINDING AGREEMENT. Each Holder has the legal
capacity, power and authority to enter into and perform all of such
Holder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by each Holder will not violate any other
agreement relating to the Subject Securities to which the Holder is a
party, including, without limitation, any voting agreement,
shareholder's agreement, partnership agreement or voting trust. This
Agreement has been duly and validly executed and delivered by such
Holder and constitutes a valid and binding agreement of such Holder,
enforceable against such Holder in accordance with its terms, except
that (i) such enforcement may be subject to applicable bankruptcy,
insolvency or other similar laws, now or hereafter in effect, affecting
creditors' rights generally, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
2. AGREEMENT TO VOTE SHARES. At every meeting of the stockholders of
NationsRent called with respect to any of the following, and at every
adjournment thereof, each Holder, severally and not jointly, agrees that, so
long as the NationsRent Board of Directors has not withdrawn its recommendation
to NationsRent shareholders to vote in favor of the Merger, it shall vote all
the Subject Securities as to which it has power to vote in any such vote in
favor of the Merger, the adoption of the Merger Agreement and each of the other
transactions contemplated by the Merger Agreement. Each Holder agrees that
during the term of this Agreement it shall not dispose of its
voting power with respect to any shares of NationsRent Common Stock for which it
retains dispositive power.
3. REPRESENTATIONS AND WARRANTIES OF RSC. RSC has full corporate power
and authority to enter into and perform all of RSC's obligations under this
Agreement. This Agreement has been duly and validly executed and delivered by
RSC and constitutes a valid and binding agreement of RSC, enforceable against
RSC in accordance with its
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terms, except that (i) such enforcement may be subject to applicable bankruptcy,
insolvency or other similar laws, now or hereafter in effect, affecting
creditors' rights generally, and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
4. FIDUCIARY DUTIES. Notwithstanding anything in this Agreement to the
contrary, the covenants and agreements set forth herein shall not prevent any
Holders serving on NationsRent's Board of Directors from taking any action,
subject to applicable provisions of the Merger Agreement, which such director
shall deem to be required by his fiduciary duties to NationsRent or its
stockholders while acting in such person's capacity as a director of
NationsRent.
5. ASSIGNMENT; BENEFITS. This Agreement may not be assigned by any
party hereto without the prior written consent of the other party and any
purported assignment thereof shall be void. This Agreement shall be binding
upon, and shall inure to the benefit of, the Holders, RSC and their respective
successors and permitted assigns, including, without limitation, any transferee
of the Subject Securities (i) which is an affiliate of or related to, or is an
entity for the benefit of any such affiliate or relative of, any Holder or (ii)
for nominal consideration.
6. NOTICES. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
if and when delivered personally or by overnight courier or sent by electronic
transmission, with confirmation received, as specified below:
If to each Holder:
AT THE ADDRESSES SET FORTH ON THE SIGNATURE PAGES HERETO
If to Rental Service Corporation:
0000 Xxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
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Attention: Xxx Xxxxxxxx
or to such other address or telecopy number as any party may have furnished to
the other parties in writing in accordance herewith.
7. SPECIFIC PERFORMANCE. The parties hereto agree that irreparable harm
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with its specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
8. AMENDMENT. This Agreement may not be amended or modified, except by
an instrument in writing signed by or on behalf of each of the parties hereto.
This Agreement may not be waived by either party hereto, except by an instrument
in writing signed by or on behalf of the party granting such waiver.
9. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL.
(a) This Agreement shall be deemed to be made in, and in all respects
shall be interpreted, construed and governed by and in accordance with the laws
of the State of Delaware applicable to contracts to be performed wholly in such
State. The parties hereby (i) irrevocably submit to the jurisdiction of the
Chancery Court of the State of Delaware and federal courts of the United States
of America located in the State of Delaware solely in respect of the
interpretation and enforcement of the provisions of this Agreement and in
respect of the transactions contemplated hereby and (ii) waive, and agree not to
assert, as a defense in any action, suit or proceeding for the interpretation or
enforcement hereof, that it is not subject to such jurisdiction or that such
action, suit or proceeding may not be brought or is not maintainable in said
courts or that the venue thereof may not be appropriate or that this Agreement
may not be enforced in or by such courts, and the Parties irrevocably agree that
all claims with respect to such action or proceeding shall be heard and
determined in such a federal court. The parties hereby consent to and grant any
such court jurisdiction over the person of such Parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in
Paragraph 6 (Notices), or in such other manner as may be permitted by law, shall
be valid and sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF
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SUCH PARTY HAS BEEN AUTHORIZED BY SUCH PARTY TO REPRESENT OR, TO THE KNOWLEDGE
OR SUCH PARTY, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER,
(ii) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (iii) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH
PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9(b).
10. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
11. DEFINED TERMS. Terms used herein but not otherwise defined shall
have the meanings set forth in the Merger Agreement.
12. TERMINATION. This Agreement shall terminate upon the earliest to
occur of (i) the Effective Time of the Merger; (ii) the date that the
NationsRent board of directors withdraws or adversely modifies its approval or
recommendation to shareholders of the Merger; and (iii) the date of termination
of the Merger Agreement. The date and time at which this Agreement is terminated
in accordance with this Section 12 is referred to herein as the "Termination
Date." Upon any termination of this Agreement, this Agreement shall thereupon
become void and of no further force and effect, and there shall be no liability
in respect of this Agreement or of any transactions contemplated hereby or by
the Merger Agreement on the part of any party hereto or any of its directors,
officers, partners, stockholders, employees, agents, advisors, representatives
or affiliates; provided, however, that nothing herein shall relieve any party
from any liability for such party's willful breach of this Agreement; and
provided further that nothing herein shall limit, restrict, impair, amend or
otherwise modify the rights, remedies, obligations or liabilities of any person
under any other contract or agreement, including, without limitation, the Merger
Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by or on
behalf of each of the parties hereto, all as of the date first above written.
RENTAL SERVICES CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, CEO
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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HOLDER: XXXXXXXX INVESTMENTS LIMITED PARTNERSHIP
By: XXXXXXXX INVESTMENTS INC, its General Partner
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Title/Authority: Treasurer
Address: 000 X. Xxx Xxxx Xxxx., 00xx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to:
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Facsimile:
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Shares of Common Stock: 1,692,047
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HOLDER: XXXX HOLDINGS LIMITED PARTNERSHIP
By: XXXX HOLDINGS, INC., its General Partner
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Title/Authority: President, Treasurer, Secretary
Address:
Facsimile:
with a copy to:
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Facsimile:
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Shares of Common Stock: 12,000,000
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HOLDER: H. FAMILY INVESTMENTS, INC.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Title/Authority: Vice President
Address: 000 X. Xxx Xxxx Xxxx., 00xx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to:
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Facsimile:
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Shares of Common Stock: 12,000,000
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