EXHIBIT 10(kk)
REGISTRATION RIGHTS AGREEMENT
Dated as of August 5, 1998
By and Between
UNITED RENTALS HOLDINGS, INC.
UNITED RENTALS, INC.
UNITED RENTALS TRUST I
and
XXXXXXX, XXXXX & CO. and the
other Purchasers named herein
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of August 5, 1998 by and between
United Rentals Holdings, Inc., a Delaware corporation (the "Company"), United
Rentals Inc., a Delaware corporation ("URI"), United Rentals Trust I, a
statutory business trust formed under the laws of the State of Delaware (the
"Trust") and Xxxxxxx, Sachs & Co., BT Alex. Xxxxx Incorporated, Deutsche Bank
Securities Inc., Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxx Xxxxxx Inc. (collectively
referred to herein as the"Purchasers").
RECITALS
WHEREAS, the Company, the Trust and the several Purchasers have entered
into a Purchase Agreement, dated July 30, 1998 (the "Purchase Agreement"),
providing for, among other things, the sale by the Trust and the purchase by the
Purchasers of an aggregate of 6,000,000 shares of, and, at the election of the
Purchasers, up to an additional 1,000,000 shares of, 6 1/2% Convertible
Quarterly Income Preferred Securities (liquidation amount $50 per preferred
security) (the "Preferred Securities") of the Trust. The Preferred Securities
are guaranteed on a subordinated basis by the Company as to the payment of
distributions, and as to payments on liquidation or redemption, to the extent
set forth in a guarantee agreement (the "Guarantee") between the Company and The
Bank of New York, as trustee, and may be converted or exchanged under certain
circumstances into the 6 1/2% Convertible Subordinated Debentures due 2028 of
the Company (the "Debentures") held by the Trust and then into common stock,
$.01 par value per share ("Common Stock"), of the Company. The Preferred
Securities, the Debentures, the Guarantee and the Common Stock issuable upon
conversion or exchange of the Preferred Securities and/or the Debentures (and
any securities issued in exchange or in lieu thereof) are referred to
collectively as the "Securities."
WHEREAS, this Agreement is being entered into pursuant to the Purchase
Agreement as a condition to the closing of the sale of the Preferred Securities
(as defined herein) pursuant thereto;
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants, representations, warranties and agreements herein contained, the
parties hereto agree as follows:
2
1. Certain Definitions.
--------------------
As used in this Agreement, the following terms shall have the following
respective meanings:
(a) "Closing Date" shall mean the First Time of Delivery as defined in the
Purchase Agreement.
(b) "Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(c) "Common Stock" means the Common Stock, par value $.01 per share, of the
Company, and any securities of the Company which may be issuable upon conversion
of the Securities pursuant to Section 4.3 of the Trust Agreement.
(d) "Company" shall have the meaning specified in the Indenture.
(e) "Effectiveness Period" shall have the meaning specified in Section 2(b)
hereof.
(f) "Effective Time" shall mean the date on which the Commission declares
the Registration Statement effective or on which the Registration Statement
otherwise becomes effective.
(g) "Electing Holder" shall have the meaning assigned thereto in Section
3(c) of this Agreement; provided, however, that, if the record holder of any
Registrable Securities is The Depository Trust Company (or a successor thereto)
or its nominee, the holder of such securities shall mean the person that would
be considered the holder thereof for purposes of Item 507 of Regulation S-K
under the Securities Act.
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
(i) The term "holder" shall mean, when used with respect to any Security,
the Holder (as defined in the Trust Agreement or the Indenture, as applicable)
and, with respect to any Common Stock, the recordholder of such Common Stock.
3
(j) "Holder's Counsel" shall mean a single counsel (if any) designated by
the holders of not less than 25% of the aggregate principal amount of the
Registrable Securities to represent them in connection with the Registration
Statement; provided, however, that, if more than one counsel is so designated,
the Holders' Counsel shall be the designee of the holders that are holding the
greater percentage of the Registrable Securities.
(k) "Indenture" shall mean the Indenture, dated as of August 5, 1998,
between the Company and The Bank of New York, as Trustee, as amended and
supplemented from time to time in accordance with its terms.
(l) "Indenture Trustee" means the trustee, from time to time, under the
Indenture.
(m) "Initial Questionnaire Deadline" shall have the meaning specified in
Section 3(c).
(n) The term "managing underwriter or managing underwriters" shall mean the
person or persons selected pursuant to Section 7(b) of this Agreement to manage
an underwritten offering of Registrable Securities.
(o) "Offering Circular" means the Offering Circular dated July 30, 1998
relating to the offer and sale of the Preferred Securities to the Purchasers and
the resale thereof pursuant to Rule 144A under the Securities Act, as amended or
supplemented from time to time.
(p) The term "person" shall have the meaning specified in the Indenture.
(q) "Prospectus" shall mean the prospectus (including any preliminary
prospectus and any final prospectus) included in any Registration Statement, as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities covered by the
Registration Statement and by all other amendments and supplements to such
prospectus, including all material incorporated by reference in such
prospectus and all documents filed after the date of such prospectus by the
Company or the Trust under the Exchange Act and incorporated by reference
therein.
(r) "Registrable Securities" shall mean all or any portion of the Preferred
Securities, the Debentures, the Guarantee and the shares of Common Stock
issuable upon conversion of such Preferred Securities and/or Debentures,
provided, however,
4
that a security ceases to be a Registrable Security when it is no longer a
Restricted Security.
(s) "Registration Expenses" shall have the meaning assigned thereto in
Section 4(c) of this Agreement.
(t) "Registration Statement" shall mean a "shelf" registration statement
filed under the Securities Act providing for the registration of, and the sale
on a continuous or delayed basis by the holders of, all of the Registrable
Securities (subject to Section 3(c) hereof) pursuant to Rule 415 under the
Securities Act and/or any similar rule that may be adopted by the Commission,
filed by the Company and the Trust pursuant to the provisions of Section 2 of
this Agreement, including the Prospectus contained therein, any amendments and
supplements to such registration statement, including post-effective amendments,
and all exhibits and all material incorporated by reference in such registration
statement.
(u) "Restricted Security" shall mean any Security unless or until (i) such
Security has been effectively registered under the Securities Act and sold in a
manner contemplated by the Registration Statement, (ii) such Security has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto), or (iii) such Security has otherwise been
transferred and a new Security or share of Common Stock not subject to transfer
restrictions under the Securities Act has been delivered by or on behalf of the
Company in accordance with Section 3.5(b) of the Indenture.
(v) "Rules and Regulations" shall mean the published rules and regulations
of the Commission promulgated under the Securities Act or the Exchange Act, as
in effect at any relevant time.
(w) "Securities" has the meaning given to that term in the recitals hereto.
(x) "Selling Securityholder's Questionnaire" shall have the meaning
assigned thereto in Section 3(c) of this Agreement.
(y) "Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
(z) "Specified Registrable Securities" shall have the meaning assigned
thereto in Section 3(c) of this Agreement.
5
(aa) "Trust Agreement" means the Trust Agreement dated July 22, 1998 among
the Company, as Depositor, The Bank of New York, as Property Trustee, The Bank
of New York (Delaware), as Delaware Trustee, and the Administrative Trustees
named therein, as amended by an Amended and Restated Declaration of Trust dated
the date hereof and as further amended or supplemented from time to time in
accordance with its terms.
(bb) "Trustees" means the trustees, from time to time, under the Trust
Agreement.
(cc) "Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
(dd) The term "underwriter" shall mean any underwriter of an underwritten
offering of Registrable Securities pursuant to Section 7(b) of this Agreement.
(ee) Wherever there is a reference in this Agreement to a percentage of
the "principal amount" of the Registrable Securities or to a percentage of
Registrable Securities, such reference shall, in each such case, be calculated
on a Common Stock equivilent basis.
The filing of a document or report under the Exchange Act that is
incorporated by reference into the Registration Statement shall not be deemed to
be an amendment or supplement of the Registration Statement or the filing of a
Registration Statement or Prospectus (notwithstanding any undertaking in the
Registration Statement that may provide to the contrary) for purposes of any
provision of this Agreement that may give any (i) a right to review, or receive
a copy, of any Registra tion Statement, Prospectus or amendment or supplement
thereto prior to the filing thereof, (ii) the right to conduct any "due
diligence" investigation that is triggered by the filing of any Registration
Statement, Prospectus or amendment or supplement or (iii) the right to receive
any notice that is triggered by any such filing.
2. Registration Under the Securities Act.
--------------------------------------
(a) The Company and the Trust shall, at the Company's expense (subject to
Section 4 hereof), within 90 days following the Closing Date, file with the
Commission a Registration Statement with respect to the Registrable Securities
and thereafter shall each use its reasonable best efforts to cause such
Registration
6
Statement to be declared effective by the Commission under the Securities Act
within 180 days after the Closing Date.
(b) Subject to Section 2(e) hereof, the Company and the Trust shall each
use its reasonable best efforts to keep the Registration Statement continuously
effective under the Securities Act and usable by holders for resales of
Registrable Securities for a period (the "Effectiveness Period") of two years
from the Effective Time or such shorter period that will terminate upon the
earlier of the following: (i) when there are no outstanding Registrable
Securities and (ii) when, in the written opinion of independent counsel to the
Company and the Trust, all outstanding Registrable Securities held by persons
that are not "affiliates" of the Company or the Trust (as defined in Rule
144(a)(1) under the Securities Act) may be resold without registration under the
Securities Act pursuant to Rule 144(k) under the Securities Act (or any
successor provision thereto) and the Company or the Trust (as applicable) has
removed all legends from the Registrable Securities restricting the transfer
thereof (other than any Registrable Security held by an affiliate). The Company
and the Trust shall each use its reasonable best efforts to file such amendments
or supplements to the Registration Statement as are necessary or appropriate to
discharge its obligations under the preceding sentence.
(c) If at any time, the Preferred Securities, and/or the Debentures, are
convertible into securities other than Common Stock, the Company or the Trust,
as applicable, shall, or shall cause any successor under the Indenture or the
Trust Agreement, as applicable, to, cause such securities to be included in the
Registration Statement no later than the date on which the Securities may then
be convertible into such securities.
(d) The parties hereto agree that, notwithstanding the provisions of
Section 9(b), the remedies provided for in Section 2(f) hereof shall constitute
the sole and exclusive monetary remedy for any breach by the Company or the
Trust of its obligations under Section 2(a) hereof.
(e) Notwithstanding anything to the contrary contained herein (including,
without limitation, Section 2(b) hereof), the fact that any action or inaction
on the part of the Company or the Trust relating to the conduct of its business
or the occurrence of any other event causes the Registration Statement not to be
usable pursuant to Section 3(f) hereof or not to be effective shall not
constitute a breach of this Agreement by the Company or the Trust (as
applicable), provided that the foregoing shall not limit (a) the Company's or
the Trust's obligation to reasonably promptly thereafter take the actions
required by Sections 3(d)(v) and/or 3(d)(xii)
7
hereof, (b) any obligation that the Company or the Trust may have to pay
additional interest pursuant to Section 2(f) hereof or (c) the Company's and the
Trust's obligations under Section 3(d)(iv) hereof.
(f) If (i) on or prior to the date 90 days after the Closing Date the
Registration Statement has not been filed with the Commission or (ii) on or
prior to the date 180 days after the Closing Date such Registration Statement
has not been declared effective (each such event, a "Registration Default"),
additional interest ("Liquidated Damages") will accrue on the Debentures, and,
accordingly, additional distributions will accrue on the Preferred Securities,
from and including the day following such Registration Default until such date
as the Registration Statement is filed or declared effective, as the case may
be. Liquidated Damages will be paid quarterly in arrears (subject to the
Company's right to defer the payment of Liquidated Damages during any
Extension Period (as defined in the Indenture)), with the first quarterly
payment due on the first interest or distribution payment date, as applicable,
following the date on which such Liquidated Damages begin to accrue, and will
accrue at a rate per annum equal to an additional one-quarter of one percent
(0.25%) of the principal amount or liquidation amount, as applicable, to and
including the 90th day following such Registration Default and one-half of one
percent (0.50%) thereof from and after the 91st day following such Registration
Default. In the event that the Registration Statement ceases to be effective
during the Effective ness Period for more than 90 days, whether or not
consecutive, during any 12-month period, then the interest rate borne by the
Debentures and the distribution rate borne by the Preferred Securities will each
increase by an additional one-half of one percent (0.50%) per annum from the
91st day of the applicable 12-month period such Registration Statement ceases to
be effective until such time as the earlier to occur of the Registration
Statement again becoming effective and the end of the Effectiveness Period.
(g) The Company and the Trust shall each be deemed not to have used its
reasonable best efforts to keep the Registration Statement effective during the
Effectiveness Period if either the Trust or the Company voluntarily takes any
action that would result in Electing Holders not being able to offer and sell
any of their Registrable Securities during such period, unless (i) such action
is required by applicable law, (ii) upon the occurrence of any event
contemplated by paragraph 3(d)(iv)(6) below, and such action is taken by the
Trust or the Company in good faith and for valid business reasons or (iii) the
continued effectiveness of the Registration Statement would require the Company
or the Trust to disclose a material financing, acquisition or other corporate
development, and the proper officers of the Company shall have determined in
good faith that such disclosure is not in the best interest of
8
the Company and, in the case of clause (ii) above, the Company and the Trust
thereafter as promptly as practicable comply with the requirements of paragraph
3(d)(v) and 3(d)(xii) below so as to cause the Registration Statement to again
be useable in connection with sales of Registrable Securities.
3. Registration Procedures.
------------------------
(a) Prior to or at the Effective Time the Company shall qualify the
Indenture under the Trust Indenture Act.
(b) In the event that compliance with Section 3(a) hereof involves the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.
(c) The Company and the Trust shall include in the Registration Statement
as of the Effective Time all Registrable Securities which any holder shall have
elected (each, an "Electing Holder") to include in the Registration Statement as
specified in a completed questionnaire substantially in the form attached as
Annex A to the Offering Circular (a "Selling Securityholder's Questionnaire"),
received by the Company on or prior to the date 80 calendar days after the
Closing Date (the "Initial Questionnaire Deadline"). As used herein, the term
"Specified Registrable Securities" shall mean all Registrable Securities that
the Electing Holders have elected to include in the Registration Statement as
provided in the preceding sentence on or prior to the Initial Questionnaire
Deadline. Each person acquiring Specified Registrable Securities from an
Electing Holder after the date on which such Electing Holder provided the
Company or the Trust its Selling Securityholder's Questionnaire shall also be
entitled to have such Specified Registrable Securities included in the
Registration Statement so long as such person provides the Company or the Trust
with an updated Selling Securityholder's Questionnaire. Any such transferee
shall be entitled to have its Specified Registrable Securities included in the
Registration Statement (i) at the Effective Time, if the updated Selling
Securityholder's Questionnaire is received by the Company or the Trust on or
prior to the date 10 calendar days prior to the Effective Time and (ii) in all
other cases, reasonably promptly after the Company or the Trust receives the
updated Selling Securityholder's Questionnaire. In the case of any Specified
Registrable Securities which are not included in the Registration Statement at
the Effective Time and as to which an updated Selling Securityholder's
Questionnaire has been furnished to the Company or the Trust, the Company and
the Trust shall include such Registrable Securities in the Registration
Statement reasonably promptly and in connection therewith shall file such post-
effective amendments to the Registration Statement or
9
supplements to the Prospectus as may be required by the Rules and Regulations to
permit the resale of such Specified Registrable Securities.
(d) In connection with the Company's and the Trust's obligations with
respect to the Registration Statement, the Company and the Trust shall each use
its reasonable best efforts to effect or cause the Registration Statement to
permit the sale of the Registrable Securities by the holders thereof in
accordance with the intended method or methods of distribution thereof described
in the Registration Statement; provided, however, that such method or methods of
distribution may take the form of an underwritten offering of the Registrable
Securities only as provided in Section 7 hereof. In connection therewith, the
Company and the Trust shall:
(i) for a reasonable period prior to the filing of a Registration
Statement or Prospectus or any amendments or supplements thereto, furnish
to the Holders' Counsel, if any, and the managing underwriter or
underwriters, if any, of Registrable Securities being sold in an
underwritten offering copies of all such documents proposed to be filed,
which documents will be subject to the review of such counsel and managing
underwriter or underwriters, and the Company and the Trust will not file
any Registration Statement or amendment thereto or any Prospectus or any
supplement thereto to which such counsel or the managing underwriter or
underwriters, if any, shall reasonably object; provided, that the Company
and the Trust may assume, for the purposes of this subparagraph (i), that
objections to the inclusion of information specifically requested to be
included in the Registration Statement or other documents by the staff of
the Commission, or in the opinion of counsel to the Company and the Trust
required to be in the Registration Statement or other documents, or
specifically required by the Securities Act or the Rules and Regulations,
shall not be deemed to be reasonable;
(ii) for a reasonable period prior to the filing of the Registration
Statement and prior to the execution of any underwriting or similar
agreement, make available for inspection by Holders' Counsel, if any, any
managing underwriter or underwriters of Registrable Securities being sold
in an underwritten offering, and not more than one accountant or firm of
accountants retained by the selling holders or such managing underwriter,
all such financial and other records, pertinent corporate documents and
properties of the Company and the Trust as would customarily be necessary
or advisable for the purposes of a "due diligence" investigation of the
Company's and the Trust 's affairs; cause the Company's officers,
directors,
10
employees and agents and the Trustees of the Trust, including, in each
case, independent public accountants and counsel, to supply all information
reasonably requested by any such counsel, underwriter or accountant in
connection with such Registration Statement, provided that any records,
information or documents that are designated by the Company or the Trust in
writing as confidential shall be kept confidential by such persons unless
disclosure of such records, information or documents is required by court
or administrative order; and furnish to Holders' Counsel and each managing
underwriter, if any, copies of all documents filed with Commission and
incorporated by reference in the Registration Statement;
(iii) prepare and file with the Commission such amendments and post-
effective amendments to the Registration Statement, and such supplements
to the Prospectus, as may be required by the Rules and Regulations or the
instructions applicable to the registration form utilized by the Company
and the Trust or by the Securities Act and cause the Prospectus as so
supplemented to be filed pursuant to Rule 424 under the Securities Act; and
comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such Registration
Statement during the period specified in Section 2(b) in accordance with
the intended methods of disposition by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus;
(iv) notify the selling holders of Registrable Securities, Holders'
Counsel, if any, and the managing underwriter or underwriters, if any,
promptly, and confirm such advice in writing,
(1) when the Registration Statement, any pre-effective
amendment thereto, the Prospectus or any prospectus supplement
or post-effective amendment to the Registration Statement has
been filed, and, with respect to the Registration Statement or
any post-effective amendment, when the same has become
effective,
(2) with respect to Holders' Counsel only, of any comments by
the Commission or the "Blue Sky" or securities commissioner or
regulator of any state with respect to the Registration
Statement, the Prospectus or any prospectus supplement or any
request by the Commission or any such securities commissioner
or regulator for amendments or
11
supplements to the Registration Statement, the Prospectus or any
prospectus supplement or for additional information,
(3) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceedings for that purpose,
(4) if at any time the representations and warranties of the
Company and the Trust contemplated by subparagraph (xiv) below or
Section 5 hereof cease to be true and correct,
(5) of the receipt by the Company or the Trust of any
notification with respect to the suspension of the qualification
of the Registrable Securities for sale under the securities or
"Blue Sky" laws of any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and
(6) if the Company or the Trust obtains knowledge of the
happening of any event or the existence of any fact that would
require the making of any changes in or amendments or
supplements to the Registration Statement, any post-effective
amendment thereto, the Prospectus, any prospectus supplement or
any document incorporated therein by reference so that, as of
such date, the Registration Statement and the Prospectus do not
contain any untrue statement of a material fact and do not omit
to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they
were made) not misleading;
(v) each use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement as
expeditiously as reasonably possible;
(vi) subject to section 7(d) hereof, if requested by any managing
underwriter or underwriters or any holder of Registrable Securities being
sold pursuant to an underwritten offering, reasonably promptly incorporate
in a prospectus supplement or post-effective amendment to the Registration
Statement such information as is required by the applicable Rules and
12
Regulations and as the managing underwriter or underwriters or such holder
specifies should be included therein and to which the Company does not
reasonably object relating to the terms of the sale of the Registrable
Securities, including without limitation, information with respect to the
principal amount or number of shares of Registrable Securities being sold
by such holder to any underwriter or underwriters, the name and description
of such holder or underwriter, the offering price of such Registrable
Securities and any discount, commission or other compensation payable in
respect thereof, the purchase price being paid therefor by such underwriter
or underwriters and with respect to any other terms of the underwritten
offering (including whether such underwriting commitment is on a firm
commitment or best efforts basis) of the Registrable Securities to be sold
in such offering; and make all required fillings of such prospectus
supplement or post-effective amendment reasonably promptly after they are
notified of the matters to be incorporated in such prospectus supplement or
post-effective amendment;
(vii) furnish to each selling holder of Registrable Securities in
cluded within the coverage of the Registration Statement and each managing
underwriter, if any, without charge, an executed copy of the Registration
Statement, each amendment and supplement thereto (in each case including,
if the holder so requests in writing, all exhibits thereto and documents
incorporated by reference therein) and such number of copies thereof as
such persons may reasonably request in order to facilitate the offering and
disposition of the Registrable Securities;
(viii) deliver to each selling holder of Registrable Securities
included within the coverage of the Registration Statement and each
managing underwriter, if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such persons may reasonably request in order to
facilitate the offering and disposition of the Registrable Securities and
to permit any of such persons to satisfy the prospectus delivery
requirements of the Securities Act; and the Company and the Trust hereby
consent (except during the continuance of any fact or event described in
Section 3(d)(iv)(6)) to the use of the Prospectus or any amendment or
supplement thereto by each of the selling holders of Registrable Securities
and by each underwriter thereof, if any, in connection with the offering
and sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto during the period specified in Section
2(b);
13
(ix) prior to any public offering of Registrable Securities, each use
reasonable best efforts to, and in the case of any underwritten offering of
Registrable Securities pursuant to Section 7, cooperate with counsel to the
managing underwriter or underwriters to, (A) register or qualify the
Registrable Securities covered by the Registration Statement for offer and
sale under the securities or "Blue Sky" laws of such jurisdictions as any
selling holder or managing underwriter reasonably shall request, (B) keep
such registrations or qualifications in effect and comply with such laws so
as to permit the continuance of offers, sales and dealings therein in such
jurisdictions for so long as may be necessary to enable any such holder
or under writer to complete its distribution of Registrable Securities
pursuant to the Registration Statement and (C) take any and all other
actions as may be reasonably necessary or advisable to enable the
disposition in such jurisdictions of such Registrable Securities;
provided, however, that neither the Company nor the Trust shall be required
for any such purpose to qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify but for
the requirements of this Section 3(d)(ix) or consent to general service of
process in any such jurisdiction;
(x) subject to receipt of assurances customary in transactions of this
kind, cooperate with the selling holders of Registrable Securities and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall not bear any restrictive
legends and which shall be in the form required by any securities exchange
upon which any Registrable Securities are listed; and enable such
Registrable Securities to be in such denominations and registered in such
names as the selling holder or the managing underwriter or underwriters, if
any, may request at least two business days prior to any delivery of
Registrable Securities;
(xi) comply with all applicable laws and the regulations of such other
governmental agencies or authorities, federal, state or local which may at
any time be applicable to the Company or the Trust, the compliance with
which may be necessary to enable the Company or the Trust to comply with
its obligations hereunder;
(xii) upon the happening of any event or the existence of any fact
contemplated by subparagraph (iv)(6) above, reasonably promptly prepare a
post- effective amendment or supplement to the Registration Statement or
the related Prospectus or any document incorporated therein by reference or
file
14
any other required document so that the Prospectus, as thereafter delivered
to the purchasers of the Registrable Securities, will not contain an untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading;
(xiii) each use best efforts to cause the shares of Common Stock
constituting Registrable Securities covered by the Registration Statement
to be listed on each securities exchange on which outstanding Common Stock
of the Company is then listed, if any, or, if such outstanding Common Stock
is not so listed, qualify such Common Stock constituting Registrable
Securities for quotation on the Nasdaq National Market;
(xiv) take the following actions:
(7) in connection with the Registration Statement, make such
representations and warranties to the holders of the
Registrable Securities to be included therein in form,
substance and scope as are customary in connection with shelf
registrations of the type contemplated by this Agreement (such
representations and warranties to be agreed upon by the
Holders' Counsel and the Company, such agreement not to be
unreasonably withheld) and, in connection with any underwritten
offering pursuant to Section 7, make such representations and
warranties to the holders of the Registrable Securities to be
sold therein and the underwriter or underwriters, if any, in
form, substance and scope as are customarily made in connection
with primary underwritten offerings of equity or convertible
debt securities;
(8) in connection with the Registration Statement, cause to be
delivered to the holders of the Registrable Securities to be
included therein such opinions of counsel in form, substance
and scope (and at such times) as are customary in connection
with shelf registrations of the type contemplated by this
Agreement (such opinions to be agreed upon by Holders' Counsel
and the Company, such agreement not to be unreasonably
withheld) and, in the case of an underwritten offering pursuant
to Section 7, such other opinions of counsel customarily
covered in opinions requested in primary
15
underwritten offerings of equity andconvertible debt securities;
(9) cause to be delivered letters from the Company's and the
Trust's independent certified public accountants addressed to
each selling holder and each underwriter, if any, covering the
matters customarily covered in connection with primary
underwritten public offerings of equity or convertible debt
securities (such letters to be delivered at such times as are
customary in connection with shelf registrations of the type
contemplated by this Agreement (as agreed to by Holders' Counsel
and the Company, such agreement not to be unrea sonably
withheld) and, in the case of an underwritten offering pursuant
to Section 7, at the time of the signing of the underwriting or
purchase agreement and at the time of any closing of such
underwritten offering);
(10) if an underwriting agreement is entered into, cause the same
to set forth in full the indemnification provisions and
procedures of Section 6 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(11) in the case of an underwritten offering, (i) enter into
customary agreements required in connection therewith (including
a customary underwriting agreement) and (ii) deliver such
customary documents and certificates as may be requested by any
managing underwriter or underwriters, if any, to evidence the
accuracy of the representations contemplated by clause (A) above
and compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company or the Trust in connection with such offering.
(xv) otherwise use its best efforts to comply with all applicable
Rules and Regulations, and make generally available to its security holders
earnings statements satisfying the provisions of Section 11(a) of the
Securities Act no later than 45 days after the end of any 12-month period
(or 90 days, if such period is a fiscal year) (A) commencing at the end of
any fiscal quarter in which the Registrable Securities are sold in an
underwritten offering, or, if not sold in such an offering, (B) commencing
with the first
16
month of the Company's first fiscal quarter commencing after the effective
date of the Registration Statement, which statements shall cover said 12-
month periods;
(xvi) notify in writing each holder of Registrable Securities of any
proposal by the Company or the Trust to amend or waive any provision of
this Agreement pursuant to Section 9(h) hereof and of any amendment or
waiver effected pursuant thereto, each of which notices shall contain the
text of the amendment or waiver proposed or effected, as the case may be;
and
(xvii)in the case of an underwritten offering, in the event that any
broker-dealer registered under the Exchange Act shall be an "Affiliate" (as
defined in Schedule E to the By-Laws of the National Association of Securi
ties Dealers, Inc. ("NASD")) of the Company or the Trust or has a "Conflict
of Interest" (as defined in such Schedule) and such broker-dealer shall
underwrite, participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of such Schedule)
of any Registrable Securities, whether as a holder of such Registrable
Securities or as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, assist such broker-dealer in
complying with the requirements of such Schedule, including, without
limitation, by (A) engaging a "qualified independent underwriter" (as
defined in such Schedule) to participate in the preparation of the
registration statement relating to such Registrable Securities, to exercise
usual standards of due diligence in respect thereto and to recommend the
public offering price of such Registrable Securities, (B) indemnifying such
qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof, and (C) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules of Fair Practice
of the NASD.
(e) The Company and the Trust may require each selling holder of
Registrable Securities as to which any registration is being effected to furnish
to the Company or the Trust, as applicable, the information regarding the
distribution of such Registrable Securities required by the Selling
Securityholder's Questionnaire or otherwise reasonably requested by the Company
or the Trust, as applicable. Each such holder agrees, by the acquisition of
Registrable Securities, to notify the Company or the Trust, as applicable, as
promptly as practicable of any inaccuracy or change in information previously
furnished by such holder to the Company or the Trust or of the occurrence of any
event in either case as a result of which any
17
Prospectus relating to such registration contains or would contain an untrue
statement of a material fact regarding such holder or such holder's intended
method of distribution of such Registrable Securities or omits to state any
material fact regarding such holder or such holder's intended method of
distribution of such Registrable Securities necessary to make the statements
therein, in light of the circumstances then existing, not misleading and
promptly to furnish to the Company or the Trust, as applicable, any additional
information required to correct and update any previously furnished information
or required so that such Prospectus shall not contain, with respect to such
holder or the distribution of such Registrable Securities, an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances then existing, not misleading.
(f) Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company or the
Trust of the happening of any event of the kind described in Section 3(d)(iv)(6)
hereof, such holder will forthwith discontinue disposition of Registrable
Securities pursuant to the Registration Statement until such holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
3(d)(xii) hereof, or until it is advised in writing by the Company or the Trust,
as applicable, that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings which are incorporated by
reference in the Prospectus, and, if so directed by the Company or the Trust, as
applicable, such holder will deliver to the Company or the Trust (at the
Company's expense) all copies, other than permanent file copies, then in such
holder's possession of the Prospectus covering such Registrable Securities at
the time of receipt of such notice. In the event the Company or the Trust shall
give any such notice, the reference to "two years" in the first sentence of
Section 2(b) shall be deemed revised to include a number of days equal to the
number of days during the period from and including the date of the giving of
such notice to and including the date when each selling holder of Registrable
Securities covered by such Registration Statement either receives the copies of
the supplemented or amended prospectus contemplated by Section 3(d)(xii) hereof
or is advised in writing by the Company or the Trust that the use of the
Prospectus may be resumed.
4. REGISTRATION EXPENSES.
----------------------
(a) Subject to Section 4(b) hereof, the Company shall pay all expenses
(including, without limitation, Registration Expenses) in connection with
performing its obligations under Sections 2 and 3 hereof. In addition, the
Company shall pay the
18
reasonable fees and disbursements of the Holders' Counsel; provided however that
the Company shall not be required to pay more than $80,000 in the aggregate in
respect of such fees and disbursements.
(b) In the event of an underwritten offering pursuant to Section 7 hereof,
(i) the holders participating in such offering shall be responsible for all
agency fees and commissions and underwriting discounts and commissions, (ii) the
Company shall pay the expenses referred to in clause (f) of the definition of
Registration Expenses and up to $200,000 of other Registration Expenses relating
to such underwritten offering and (iii) the holders participating in such
offering shall bear all Registration Expenses relating to such underwritten
offering in excess of $200,000 and shall reimburse (on a pro rata basis based on
the amount of the Registration Securities included in the underwritten
offering(calculated on a Common Stock equivalent basis)) the Company for any
such excess expenses reasonably incurred by the Company upon request. To the
extent that any Registration Expenses payable by the Company are incurred,
assumed or paid by any holder, the Company shall reimburse such holder upon
request.
(c) As used herein, Registration Expenses means the following expenses
relating to the Registration Statement and the sale of the Registrable
Securities relating thereto: (a) all Commission and any NASD registration and
filing fees and expenses, (b) all fees and expenses in connection with the
registration or qualification of the Registrable Securities for offering and
sale under the State securities and blue sky laws referred to in Section
3(d)(ix) hereof and, in the case of an underwritten offering, determination of
their eligibility for investment under the laws of such jurisdictions as the
managing underwriter or underwriters may designate, including reasonable fees
and disbursements, if any, of counsel for the underwriters in connection with
such registrations or qualifications and determination, (c) all expenses
relating to the preparation, printing, distribution and reproduction of the
Registration Statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Registrable
Securities for delivery and the expenses of printing or producing any
underwriting agreement(s) among underwriters and "Blue Sky" or legal investment
memoranda, any selling agreements and all other documents in connection with the
offering, sale or delivery of Registrable Securities to be disposed of, (d)
messenger, telephone and delivery expenses of the Company and the Trust, (e)
fees and expenses of any Indenture Trustee and the Trustees of the Trust, any
Transfer Agent and Registrar with respect to the Registrable Securities and any
escrow agent or custodian, (f) internal expenses (including, without limitation,
all salaries and expenses of the
19
Company's or the Trust's officers and employees performing legal or accounting
duties and the Trustees of the Trust), (g) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company and the
Trust (including the expenses of any opinions or "cold comfort" letters
required by or incident to such performance and compliance), (h) fees,
disbursements and expenses of any "qualified independent underwriter" engaged
pursuant to Section 3(d)(xvii) hereof for acting in such capacity, (i) fees,
expenses and disbursements of any other persons retained by the Company or the
Trust, including special experts, retained by the Company or the Trust in
connection with such registration, (k) all fees and expenses incurred in
connection with the qualification of the shares of Common Stock constituting
Registrable Securities for quotation on the Nasdaq National Market, or the
listing of such shares on any securities exchange, pursuant to Section
3(d)(xiii) (collectively, the "Registration Expenses") and (l) in the case of an
underwritten offering pursuant to Section 7 hereof, the fees, disbursements and
expenses of a single counsel retained by the holders to represent them in
connection with such offering (the selection of such counsel by such holders to
be made in the same manner as is provided in the definition of the terms
"Holders' Counsel").
5. Representations and Warranties.
-------------------------------
The Company, URI and the Trust, jointly and severally represent and warrant
to, and agree with, the Purchasers and each of the holders from time to time of
Registrable Securities that:
(a) Each Registration Statement and each Prospectus contained therein or
furnished pursuant to Sections 3(d)(vii) and 3(d)(viii) hereof and any further
amendments or supplements to any such Registration Statement or Prospectus,
when it becomes effective or is filed with the Commission, as the case may be,
and, in the case of an underwritten offering of Registrable Securities, at the
time of the closing under the underwriting agreement relating thereto, will
conform in all material respects to the requirements of the Securities Act and
will not contain an 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; and at all times subsequent to the Effective Time when a
prospectus would be required to be delivered under the Securities Act, other
than from (i) such time as a notice has been given to holders of Registrable
Securities pursuant to Section 3(d)(iv)(6) hereof until (ii) such time as the
Company and the Trust furnish an amended or supplemented prospectus pursuant to
Section 3(d)(xii) hereof, the Registration Statement, and the Prospectus
(including any summary prospectus) contained therein or furnished pursuant to
Section 3(d)(vii) or 3(d)(viii) hereof, as then amended or supplemented,
20
will conform in all material respects to the requirements of the Securities Act
and will not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances then existing, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information set forth in a Selling
Securityholder's Questionnaire (or any other written information) furnished to
the Company by a holder of Registrable Securities.
(b) Any documents incorporated by reference in any Prospectus referred to
in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
(c) The compliance by the Company and the Trust with all of the provisions
of this Agreement and the consummation of the transactions herein contemplated
will not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
subsidiary thereof or the Trust is a party or by which the Company or any
subsidiary thereof or the Trust is bound or to which any of the property or
assets of the Company or any subsidiary thereof or the Trust is subject, nor
will such action result in any violation of the provisions of the Certificate of
Incorporation, as amended and restated, or the By-Laws, as amended, of the
Company, the Trust Agreement or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company or
any subsidiary thereof or the Trust or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the consummation by
the Company and the Trust of the transactions contemplated by this Agreement,
except the registration under the Securities Act of the Registrable Securities,
the qualification of the Indenture as contemplated by Section 3(a) hereof, and
such consents, approvals, authorizations, registrations or qualifications as may
be required under State securities or "Blue Sky" laws in connection with the
offering and distribution of the Registrable Securities.
(d) This Agreement has been duly authorized, executed and delivered by the
Company and the Trust and constitutes a valid and legally binding obligation of
the Company and the Trust enforceable in accordance with its terms, subject, as
to
21
enforcement, to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
6. Indemnification.
----------------
(a) Indemnification by the Company, URI and the Trust. Upon the
registration of the Registrable Securities pursuant to Section 2 hereof, and in
consideration of the agreements of the Purchasers contained herein and in the
Purchase Agreement and as an inducement to the Purchasers to enter into such
agreements, the Company, URI and the Trust shall, and each of them hereby agrees
to, jointly and severally, indemnify and hold harmless each of the holders of
Registrable Securities to be included in such registration, each underwriter,
broker, dealer or other selling agent with respect to the Registrable Securities
and each of their respective officers, directors, employees and agents and each
person who controls such holder or underwriter, broker, dealer or other selling
agent within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act (each such person being sometimes referred to as an
"Indemnified Person") against any losses, claims, damages or liabilities, joint
or several, to which such Indemnified Person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement under which such Registrable Securities were registered
under the Securities Act, or any Prospectus contained therein or furnished by
the Company or the Trust to any Indemnified Person, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the state ments therein not misleading, and the Company, URI
and the Trust shall, and each of them hereby agrees, jointly and severally, to
reimburse such Indemnified Person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such action
or claim; provided, however, that neither the Company, URI nor the Trust shall
be liable to any such Indemnified Person in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
such Registration Statement or Prospectus, or amendment or supplement, in
reliance upon and in conformity with any written information (including without
limitation, any Selling Securityholder's Questionnaire) furnished to the Company
or the Trust by such Indemnified Person expressly for use therein.
22
(b) Indemnification by the Holders and any Agents and Underwriters. The
Company and the Trust may require, as a condition to including any Registrable
Securities in any Registration Statement filed and to entering into any
underwriting agreement with respect thereto, that each of the Company, URI and
the Trust shall have received an undertaking reasonably satisfactory to it from
the holder of such Registrable Securities and from each underwriter named in any
such underwriting agreement, severally and not jointly, to (i) indemnify and
hold harmless the Company, URI and, their respective directors and officers
and the Trust and its Trustees, in each case, who sign any Registration
Statement, each person, if any, who controls the Company, URI or the Trust
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, and each other holder of Registrable Securities included in
the Registration Statement against any losses, claims, damages or liabilities to
which the Company, URI or the Trust or such other persons may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
such Registration Statement, or any Prospectus contained therein or furnished by
the Company or the Trust to any such holder or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished in writing to the Company or the
Trust by such person expressly for use therein (including, without limitation,
any Selling Securityholder's Questionnaire), and (ii) reimburse the Company, URI
or the Trust for any legal or other expenses reasonably incurred by the Company,
URI or the Trust, as applicable, in connection with investigating or defending
any such action or claim;
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of written notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it
23
shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party. An indemnifying party will not
be liable for any settlement of any action or claim effected without its written
consent (which shall not be unreasonably withheld).
(d) Contribution. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6(b) are
unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying party or by
such indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 6(d) were deter mined by pro rata allocation (even if
the holders or any agents or underwriters or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable
24
considerations referred to in this Section 6(d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. 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 holders' and any
underwriters' obligations in this Section 6(d) to contribute shall be several in
proportion to the percentage of Registrable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) Notwithstanding any other provision of this Section 6, in no event will
any (i) holder be required to undertake liability to any person under this
Section 6 for any amounts in excess of the dollar amount of the proceeds to be
received by such holder from the sale of such holder's Registrable Securities
(after deducting any fees, discounts and commissions applicable thereto)
pursuant to such registration and (ii) underwriter be required to undertake
liability to any person pursuant to paragraph (d) of this Section 6 for any
amount in excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter shall have
otherwise been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission.
(f) The obligations of the Company, URI and the Trust under this Section 6
shall be in addition to any liability which the Company, URI or the Trust may
otherwise have to any Indemnified Person, including any liability to the
Purchasers pursuant to Section 8 of the Purchase Agreement. The obligation of
each person that may be required to indemnify the Company, URI or the Trust and
the other persons specified in Section 6(b) shall be in addition to any
liability which any such person may otherwise have to the Company, URI or the
Trust or such other indemnified persons.
7. Underwritten Offerings.
-----------------------
(a) The holders of Registrable Securities covered by the Registration
Statement may sell such Registrable Securities in an underwritten offering,
provided that (i) the holders of at least 33-1/3% in aggregate principal amount
of the Registrable Securities outstanding elect to participate in such an
offering and (ii) the Company and the Trust shall not be obligated to cooperate
with more than one underwritten offering during the period specified in Section
2(b).
25
(b) If any of the Registrable Securities covered by the Registration
Statement are to be sold pursuant to an underwritten offering, the managing
underwriter or underwriters thereof shall be designated by the holders of at
least 50% in aggregate principal amount of the outstanding Registrable
Securities to be included in such offering, provided that such designated
managing underwriter or underwriters is or are reasonably acceptable to the
Company.
(c) Each holder of Registrable Securities hereby agrees with each other
such holder that no such holder may participate in any underwritten offering
hereunder unless such holder (i) agrees to sell such holder's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the persons entitled hereunder to approve such arrangements and (ii) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
(d) Notwithstanding the foregoing or the provisions of Section 3(d)(vi)
hereof, upon receipt of a request from a holder of Registrable Securities or the
managing underwriter or underwriters appointed pursuant to Section 7 to prepare
and file an amendment or supplement to the Registration Statement and Prospectus
in connection with an underwritten offering, the Company may delay the filing of
any such amendment or supplement for up to 120 days if the Company in good faith
has a valid business reason for such delay.
8. Rule 144.
---------
Each of the Company and the Trust covenants to the holders of Registrable
Securities that to the extent it shall be required to do so under the Exchange
Act, it shall timely file the reports required to be filed by it under the
Exchange Act or the Securities Act (including, but not limited to, the reports
under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph
(c)(1) of Rule 144 under the Securities Act) and the Rules and Regulations, and
shall take such further action as any holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Securities without registration under the Securities
Act within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission. Upon the request of any
holder of Registrable Securities, each of the Company and the Trust shall
deliver to such holder a written statement as to whether it has complied with
such requirements.
26
9. Miscellaneous.
--------------
(a) No Inconsistent Agreements. Neither the Company, URI nor the Trust
will on or after the date of this Agreement grant registration rights with
respect to Registrable Securities or any other securities, or enter into any
agreement with respect to its securities, which is inconsistent with the rights
granted to the holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. Neither the Company, URI nor the Trust is
currently a party to any agreement with respect to any of its equity or debt
securities granting any registration rights to any person which agreement is
inconsistent with the rights granted To the holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof.
(b) Specific Performance. The parties hereto acknowledge that there may be
no adequate remedy at law if any party fails to perform any of its obligations
hereunder and that each party may be irreparably harmed by any such failure, and
accordingly agree that each party, in addition to any other remedy to which it
may be entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of any other party under this Agreement in
accordance with the terms and conditions of this Agreement, in any court of the
United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be given in the manner provided for in the
Indenture; provided, however, that the foregoing items shall be deemed
effectively given to a holder for all purposes of this Agreement when delivered
to the address for notices specified in the Selling Securityholder's
Questionnaire delivered by such holder.
(d) Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by
the respective successors and assigns of the parties hereto. In the event that
any transferee of any holder of Registrable Securities shall acquire
Registrable Securities, in any manner, whether by gift, bequest, purchase,
operation of law or otherwise, such transferee shall, without any further
writing or action of any kind, be deemed a party hereto for all purposes and
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such transferee
shall be entitled to receive the benefits of and be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement. If the Company or the Trust shall so request, any
27
such successor, assign or transferee shall agree in writing to acquire and hold
the Registrable Securities subject to all of the terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of and
payment for the Registrable Securities pursuant to the Purchase Agreement and
the transfer and registration of Registrable Securities by such holder.
(f) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
(h) Amendments and Waivers. This Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a written
instrument duly executed by the Company, URI, the Trust and the holders of at
least 66 2/3% of the principal amount of the Registrable Securities at the time
outstanding. Each holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by any amendment or waiver effected pursuant to this
Section 9(h), whether or not any notice, writing or marking indicating such
amendment or waiver appears on such Registrable Securities or is delivered to
such holder.
(i) Inspection. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any holder of Registrable Securities at the offices of the
Company at the address set forth in the Indenture or of the Trust, as set forth
in the Trust Agreement.
28
(j) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
29
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the date first written above.
UNITED RENTALS HOLDINGS, INC.
By:____________________________
Name:_______________________
Title:______________________
UNITED RENTALS, INC.
By:____________________________
Name:_______________________
Title:______________________
UNITED RENTALS TRUST I
By:____________________________
Name:_______________________
Title:______________________
By:____________________________
Name:_______________________
Title:______________________
Xxxxxxx, Xxxxx & Co.
BT Alex. Xxxxx Incorporated
Deutsche Bank Securities Inc.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxxx Inc.
By: XXXXXXX, XXXXX & CO.
By:______________________________
30
