EXHIBIT 10.4(iii)
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AMENDMENT NO.2 TO
REGISTRATION AGREEMENT
THIS AMENDMENT NO.2 to Registration Agreement (this "Agreement") is
dated as of July 24, 1998 by and among National Equipment Services, Inc., a
Delaware corporation (the "Company"), Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV,
L.P., a Delaware limited partnership (the "Investor"), and R & R Rentals, Inc.,
a Texas corporation ("R&R"). This Agreement amends the Registration Agreement,
dated as of June 4, 1996, among the Company, the Investor, Xxxxx Xxxxxxx and
Xxxx Xxxxxxxxx, as amended by Amendment No.1 to Registration Agreement, dated as
of December 31, 1996, among the Company, the Investor, Xxxxx Xxxxxxx, Xxxx
Xxxxxxxxx and Xxxxxx X'Xxxxxx (the "Original Agreement"). Capitalized terms
used but not defined herein shall have the meanings assigned them in the
Original Agreement.
WHEREAS, the parties hereto now desire to amend the Original Agreement
as set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree to amend
the Original Agreement as follows:
SECTION I. AMENDMENTS TO ORIGINAL AGREEMENT. As of the date hereof, the
Original Agreement shall be amended as follows:
1.1. Sections 1(a), 1(b) and 1(c) of the Original Agreement shall be
and hereby are deleted in their entirety and replaced with the following new
Sections 1(a), 1(b) and 1(c):
"1(a) Requests for Registration. At any time, the holders
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of a majority of the Registrable Securities may request registration under the
Securities Act of all or any portion of their Registrable Securities on Form S-1
or any similar long-form registration ("Long-Form Registrations"), and the
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holders of a majority of the Registrable Securities may request registration
under the Securities Act of all or any portion of their Registrable Securities
on Form S-2 or S-3 or any similar short-form registration ("Short-Form
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Registrations") if available; provided that at any time after July 24, 1999, the
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holders of a majority of the R&R Registrable Securities may request a Long-Form
Registration of all or any portion of their R&R Registrable Securities. All
registrations requested pursuant to this paragraph 1(a) are referred to herein
as "Demand Registrations." Each request for a Demand Registration shall specify
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the approximate number of Registrable Securities requested to be registered and
the anticipated per share price range for such offering. Within ten days after
receipt of any such request, the Company shall give written notice of such
requested registration to all other holders of Registrable Securities and shall
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice.
1(b) Long-Form Registrations. The holders of a majority of the
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Registrable Securities shall be entitled to request (i) four Long-Form
Registrations in which the Company shall pay all Registration Expenses
("Company-paid Long-Form Registrations") and (ii) an unlimited number of Long-
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Form Registrations in which the holders of Registrable Securities shall pay
their share of the Registration Expenses as set forth in paragraph 5 hereof. At
any time after July 24, 1999, the holders of a majority of the R&R Registrable
Securities shall be entitled to request one Long-Form Registrations in which the
Company shall pay all Registration Expenses (the "R&R Long-Form Registration").
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A registration shall not count as one of the permitted Long-Form Registrations
until it has become effective and no Company-paid Long-Form Registration shall
count as one of the permitted Long-Form Registrations unless the holders of
Registrable Securities are able to register and sell at least 90% of the
Registrable Securities requested to be included in such registration; provided
that in any event the Company shall pay all Registration Expenses in connection
with any registration initiated as a Company-paid Long-Form Registration whether
or not it has become effective and whether or not such registration has counted
as one of the permitted Company-paid Long-Form Registrations. A registration
shall not count as the one permitted R&R Long-Form Registration until it has
become effective and no R&R Long-Form Registration shall count as the one
permitted R&R Long-Form Registration unless the holders of R&R Registrable
Securities are able to register and sell at least 90% of the R&R Registrable
Securities requested to be included in such registration; provided that in any
event the Company shall pay all Registration Expenses in connection with any
registration initiated as an R&R Long-Form Registration whether or not it has
become effective and whether or not such registration has counted as the one
permitted R&R Long-Form Registration.
1(c) Short-Form Registrations. In addition to the Long-Form
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Registrations provided pursuant to paragraph 1(b), the holders of a majority of
the Registrable Securities shall be entitled to request an unlimited number of
Short-Form Registrations in which the Company shall pay all Registration
Expenses. Demand Registrations shall be Short-Form Registrations whenever the
Company is permitted to use any applicable short form; provided that in the
event the one permitted R&R Long-Form Registration may be consummated using any
applicable short form, such registration shall be consummated using such
applicable short form and shall nonetheless constitute the one permitted R&R
Long-Form Registration (provided that such registration has become effective and
the holders of R&R Registrable Securities are able to register and sell at least
90% of the R&R Registrable Securities requested to be included in such
registration). After the Company has become subject to the reporting
requirements of the Securities Exchange Act, the Company shall use its best
efforts to make Short-Form Registrations on Form S-3 available for the sale of
Registrable Securities."
1.2. Section 8 of the Original Agreement shall be and hereby is deleted in
its entirety and replaced with the following new Section 8:
"8. Definitions.
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(a) "Executive Registrable Securities" means any shares of Common
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Stock held as of the date hereof, or acquired hereafter from the Company, by the
executive employees of the
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Company and its Subsidiaries who are or become parties to this Agreement,
including, without limitation, the Executives.
(b) "Investor Registrable Securities" means (i) any Class A Common
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issued pursuant to the Purchase Agreement (whether issued before, on or after
the date hereof), (ii) any Class B Common issued pursuant to the Purchase
Agreement (whether issued before or after the date hereof), (iii) any other
Common Stock issued or issuable with respect to the securities referred to in
clauses (i) and (ii) by way of a stock dividend or stock split or in connection
with an exchange or combination of shares, recapitalization, merger,
consolidation or other reorganization (a "Reorganization"), and (iv) any other
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shares of Common Stock held by Persons holding securities described in clauses
(i) to (iii), inclusive, above; provided that in the event that pursuant to a
Reorganization, equity securities are issued which do not participate in the
residual equity of the Company ("Non-Participating Securities"), such Non-
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Participating Securities will not be Investor Registrable Securities.
(c) "Registrable Securities" means Investor Registrable Securities,
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Executive Registrable Securities, Seller Registrable Securities and R&R
Registrable Securities. As to any particular Registrable Securities, such
securities shall cease to be Executive, Investor, Seller or R&R Registrable
Securities when they have been distributed to the public pursuant to a offering
registered under the Securities Act or sold to the public through a broker,
dealer or market maker in compliance with Rule 144 under the Securities Act (or
any similar rule then in force). For purposes of this Agreement, a Person shall
be deemed to be a holder of Registrable Securities whenever such Person has the
right to acquire such Registrable Securities (upon conversion or exercise in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected.
(d) "R&R Registrable Securities" means (i) any Common Stock issued to
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R&R pursuant to the Asset Purchase Agreement, dated on or about July 24, 1998,
among NES Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of the Company, R&R and the stockholder of R&R (the "R&R Purchase
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Agreement") (whether issued before, on or after the date hereof), and (ii) any
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other Common Stock issued or issuable with respect to the securities referred to
in clause (i) by way of a Reorganization; provided that in the event that
pursuant to a Reorganization, equity securities are issued which are Non-
Participating Securities, such Non-Participating Securities will not be R&R
Registrable Securities.
(e) "Seller Registrable Securities" means (i) any Class A Common
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issued pursuant to the Stock Purchase Agreement, dated on or about January 6,
1997, between the Company and Industrial Crane Maintenance Systems, Inc. (the
"ICMS Purchase Agreement") (whether issued before, on or after the date hereof),
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(ii) any Class B Common issued pursuant to the ICMS Purchase Agreement (whether
issued before or after the date hereof), and (iii) any other Common Stock issued
or issuable with respect to the securities referred to in clauses (i) and (ii)
by way of a Reorganization; provided that in the event that pursuant to a
Reorganization, equity securities are issued which are Non-Participating
Securities, such Non-Participating Securities will not be Seller Registrable
Securities.
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(f) Unless otherwise stated, other capitalized terms contained herein
have the meanings set forth in the Purchase Agreement."
1.3. The Original Agreement shall be and hereby is amended by adding R&R as
a party thereto. R&R hereby agrees to be bound by all of the covenants, terms
and conditions contained in the Original Agreement, as amended. The parties
hereto agree that the signature page hereto bearing R&R's signature constitutes
a counterpart signature page to the Original Agreement.
SECTION II. MISCELLANEOUS.
2.1. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.2. Governing Law. This Agreement will be governed by and construed
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in accordance with the domestic laws of the State of Illinois, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of Illinois or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Illinois.
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