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EXHIBIT 10.4
STOCKHOLDERS AGREEMENT
This Stockholders Agreement (this "Agreement"), dated as of
May 15, 1996, is among BACE Investments, LLC, a Colorado limited liability
company ("Bace"), Mesirow Capital Partners VI, an Illinois limited partnership
("Mesirow"), The Edgewater Private Equity Fund II, L.P., a Delaware limited
partnership ("Edgewater," Mesirow and Edgewater together with any other parties
to this Agreement who purchase shares of Preferred Stock pursuant to the
Investment Agreement (as each term is defined below) or successors or assigns
of such purchasers, being collectively referred to as the "Purchasers"),
Xxxxxxx X. Xxxxx ("Xxxxx") and Xxxxx X. Xxxxxxxx ("Xxxxxxxx"), and each other
holder of record of Common Stock, as defined herein, or an option to acquire
Common Stock who may execute this Agreement or hereafter execute a separate
agreement to be bound by the terms hereof ( Bace, Purchaser and each other
person that may become a party hereto as contemplated hereby are hereinafter
collectively referred to as the "Parties" and individually a "Party"), and
RentX Industries, Inc., a Delaware corporation (the "Corporation").
RECITALS
WHEREAS, the Corporation has authorized capital stock
consisting of 233,900 shares of Class A Common Stock, 12,350 shares of
nonvoting Class B Common Stock, 15,000 shares of convertible Series A Preferred
Stock, $1.00 par value per share (the "Series A Preferred"), and 200 shares of
convertible Series B Preferred Stock, $1.00 par value (the "Series B
Preferred") having the respective rights and powers set forth in the
certificate of incorporation of the Corporation (as amended from time to time,
the "Charter");
WHEREAS, the Parties are the legal and beneficial owners of
all of the issued and outstanding shares of Capital Stock (as defined below) of
the Corporation on the date hereof; and
WHEREAS, the Parties have agreed, among other things, to make
certain provisions for the management of the Corporation and its subsidiaries,
and to restrict the transfer of their Capital Stock.
NOW, THEREFORE, in consideration of the covenants and
agreements made herein, the Parties and the Corporation agree as follows:
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ARTICLE 1
CERTAIN DEFINED TERMS
1.1 Certain Terms. In addition to terms defined elsewhere in
this Agreement, for purposes of this Agreement, except as otherwise set forth
herein or the context otherwise requires, the following terms shall have the
following meanings:
"Accredited Investor" shall have the meaning set forth in
Regulation D or any successor rule then in effect.
"Accredited Party" has the meaning set forth in Section
3.1(c)(i).
"Affiliate" of a Party means (i) in all cases, any person or
entity controlling, controlled by or under common control with, such Party,
(ii) in the case of Mesirow, Mesirow Financial Services, Inc. ("MFS"), any of
the general or limited partners of Mesirow, any general or limited partners of
such partners, any person or entity controlling, controlled by or under common
control with Mesirow or MFS, Edgewater or any Affiliate of Edgewater, (iii) in
the case of Edgewater, Xxxxxx Management, Inc. ("GMI"), any of the general or
limited partners of Edgewater, any general or limited partners of such
partners, any person or entity controlling, controlled by or under common
control with Edgewater or GMI, Mesirow or any Affiliate of Mesirow, (iv) in the
case of a Party who is a natural person, such Party's spouse, the issue of such
Party or such Party's spouse (including any by adoption), such Party's estate
and any trust entirely for the benefit of any one or more of such Party, such
Party's estate, such Party's spouse and the issue of such Party or such Party's
spouse (including any by adoption), (v) in the case of Bace, Tyler, Zoellner,
any Affiliate of Tyler, any Affiliate of Xxxxxxxx or any employee of Bace other
than Tyler or Xxxxxxxx (a "Bace Employee"), (vi) in the case of Tyler, any
Affiliate of Tyler or any Bace Employee, Xxxxxxxx or any Affiliate of Xxxxxxxx,
and (vii) in the case of Xxxxxxxx, any Affiliate of Xxxxxxxx or any Bace
Employee, Tyler or any Affiliate of Tyler.
"Board of Directors" means the board of directors of the
Corporation.
"Capital Stock" means the Common Stock, the Preferred Stock
and any other class of capital stock of the Corporation that may be outstanding
from time to time.
"Class A Common Stock" means the Class A Common Stock of the
Corporation, par value $.01 per share.
"Class B Common Stock" means the Class B Common Stock of the
Corporation, par value $.01 per share, which stock generally is nonvoting.
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"Common Stock" means the Class A Common Stock and the Class B
Common Stock.
"Common Stock Equivalents" means (without duplication with any
other Common Stock or Common Stock Equivalents) rights, warrants, options
(including, without limitation, employee stock options), convertible securities
or indebtedness, exchangeable securities or indebtedness, or other rights,
exercisable for or convertible or exchangeable into, directly or indirectly,
Common Stock and securities convertible or exchangeable into Common Stock,
whether at the time of issuance or upon the passage of time or the occurrence
of some future event, including (without limitation) the Series A Preferred and
the Series B Preferred.
"Fully Diluted Common Stock" means, at any time, the then
outstanding Common Stock of the Corporation plus (without duplication) all
shares of Common Stock issuable, whether at such time or upon the passage of
time or the occurrence of future events, upon the exercise, conversion or
exchange of all then outstanding Common Stock Equivalents.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended.
"Investment Agreement" means the Investment Agreement dated as
of May 15, 1996, among the Corporation, the Purchasers and Bace, as may be
amended from time to time.
"Preferred Stock" means the Series A Preferred Stock and the
Series B Preferred Stock of the Corporation, par value $1.00 per share.
"Qualified Public Offering" means the sale in an underwritten
public offering or a series of public offerings, registered under the
Securities Act, of Common Stock which results in public ownership of not less
than 25% of the Fully Diluted Common Stock of the Corporation, which shares of
Common Stock are listed upon the New York Stock Exchange, the American Stock
Exchange or are approved for quotation on the NASDAQ National Market and which
offerings shall have resulted in the receipt by the Corporation of aggregate
cash proceeds (after deduction of underwriting discounts and the costs
associated with the offerings) of at least $8 million and with the average
price in such offering or offerings reflecting a valuation of the Fully Diluted
Common Stock (excluding shares being issued in the offering or offerings)
aggregating at least $30 million.
"Regulation D" means Regulation D promulgated by the SEC under
the Securities Act, as amended from time to time.
"SEC" means the Securities and Exchange Commission or any
successor governmental agency.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
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"Subsidiary" means any corporation or other entity, a majority
of whose capital stock or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions is at the time held by the Corporation or any Subsidiary
thereof.
ARTICLE 2
MANAGEMENT OF THE CORPORATION AND CERTAIN ACTIVITIES
2.1 Board of Directors.
(a) The Parties and the Corporation hereby acknowledge and
agree that the Board of Directors shall consist of five members; provided, that
either the Purchasers or Bace may elect to increase the size of the Board of
Directors to seven members at any time by notice given to the Corporation.
Bace shall be entitled to designate two of the directors (or three if the Board
of Directors has seven members) and the Purchasers shall be entitled to
designate the remaining three directors (or four if the Board of Directors has
seven members) at all times during the term of this Agreement. Accordingly,
the Parties and the Corporation agree to take all action within their
respective power, including, but not limited to, the voting of Capital Stock,
required to cause the Board of Directors to at all times (i) consists of five
members (or seven at the election of the Purchasers or Bace) and (ii) include
two designees (or three if the Board of Directors has seven members) of Bace,
as determined in its sole discretion, and three designees (or four if the
Board of Directors has seven members) of the Purchasers, as determined in
their sole discretion. The Corporation agrees that it shall cause the board of
directors of any and all Subsidiaries of the Corporation to consist of the same
members as of the Board of Directors. The Parties further agree that, unless
the Board of Directors concludes in good faith that such person has committed
misconduct or otherwise is unfit to serve as an officer of the Corporation,
that the Parties agree to take all action within their respective power to
cause each of Tyler and Xxxxxxxx to continue to be elected as a vice president
of the Corporation.
(b) In the event that any director (a "Withdrawing Director")
designated pursuant to Section 2.1(a) is unable to serve, or once having
commenced to serve, is removed or withdraws from the Board of Directors, such
Withdrawing Director's replacement (the "Substitute Director") on the Board of
Directors will be designated by the persons or entities entitled to designate
such director pursuant to Section 2.1(a); provided, that a director designated
pursuant to Section 2.1(a) may only be removed by the person or entity entitled
to designate such director pursuant to Section 2.1(a). The Corporation and
each of the Parties agree to take all action within its or his power,
including, but not limited to, the voting of Capital Stock, to cause the
election of such Substitute Director as soon as practicable following such
designation.
(c) In the event a Party ceases to be entitled to designate
directors pursuant to this Agreement, the vacancy or vacancies resulting
therefrom shall be filled by the directors or
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by the stockholders in the manner provided by applicable law. In the event a
Party chooses not to designate any director or directors, such directorship or
directorships shall not otherwise be filled and the size of the Board of
Directors shall be correspondingly reduced until such time as such Party elects
to designate a director or directors in accordance with this Agreement.
(d) The Corporation and the Parties agree that no action
shall be taken at any meeting of the Board of Directors unless each director
shall receive at least one business day's notice of such meeting or shall waive
such notice. The Corporation and each of the Parties agree to take all action
within its or his power, including, but not limited to, the voting of Capital
Stock, to prevent action from being taken without such notice unless such
notice is waived by all of the members of the Board of Directors.
(e) The Corporation and the Parties shall vote to approve and
adopt by-laws and amendments to the Charter and to take such other actions in
furtherance of, and to give effect to, the agreements and provisions set forth
in this Agreement and the Investment Agreement, and shall not vote to repeal or
adopt any by-law or amendment to the Charter or take any other action in
violation of, or inconsistent with, such agreements and provisions, including,
without limitation, the provisions of Section 2.1(a) of this Agreement or of
the Investment Agreement.
2.2 Non-Compete; Fiduciary Duties. It is understood and
accepted that a Party may not have any interests (other than the ownership of
not more than 5% of the common stock of a publicly held entity in which such
party does not have any other involvement) or engage in any other business
ventures which compete in any material respect with the activities of the
Corporation and its Subsidiaries. Except as provided below in this Section
2.2, nothing in this Agreement, express or implied, shall relieve any officer
or director of the Corporation or any of its Subsidiaries, or any Party, of any
fiduciary or other duties or obligations they may have to the Corporation's
stockholders. Notwithstanding anything to the contrary set forth above in this
Section 2.2 or in the Corporation's Charter, the Parties acknowledge and agree
that the business of the Corporation (the "Business") shall be limited to
engaging in (a) construction and industrial equipment rentals, general tool and
equipment rentals, event and party rentals and related activities and (b) such
other business activities as the Corporation shall hereafter, with the consent
of a majority of the Board of Directors (including the approval of a majority
of the members of the Board of Directors designated by the Purchasers), be
engaged in or have determined to engage in. Consequently, (x) the "corporate
opportunities" doctrine shall not apply to: (i) any activities or opportunities
outside the scope of the Business set forth in clause (a) of the preceding
sentence or (ii) prior to a Qualified Public Offering, activities referred to
in clause (b) of the preceding sentence ("Non-RentX Activities") unless the
consent of Bace, Tyler, Xxxxxxxx or at least one member of the Board of
Directors designated by Bace, so long as Bace is permitted to make such
designation, has been given in connection with the determination for the
Corporation to engage in such activities; and (y) except as set forth in
subsection (x)(ii), no officer or director of the Corporation or any of its
Subsidiaries, or any Party, shall have any fiduciary or other duties,
obligations or liabilities with respect to any Non-RentX Activities which such
officer, director or Party pursues outside of the Corporation (it
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being understood that this provision in no way limits fiduciary or other
obligations to maintain the confidentiality of confidential information of the
Corporation or its Subsidiaries or refrain from using such information or other
assets of the Corporation in connection with Non-RentX Activities pursued
outside of the Corporation; provided, however, no such officer, director or
other Party shall have any obligation to maintain the confidentiality of, or
refrain from using, any confidential information with respect to Non-RentX
Activities (A) which becomes generally known to and available for use by the
public other than as a result of a disclosure by such officer, director or
other Party, (B) with respect to which such officer's, director's or other
Party's duty of confidentiality is waived by the Corporation, (C) if required
by applicable law, regulation or order of any governmental agency or court of
competent jurisdiction, (D) which was known to the public when received by such
officer, director or other Party or (E) which is lawfully obtained by such
officer, director or other Party from other sources).
2.3 Availability of Common Stock. The Parties and the
Corporation agree that the Corporation shall at all times when any shares of
Preferred Stock are outstanding have available and reserved sufficient shares
of authorized but unissued shares or treasury shares of Common Stock for
issuance upon any conversion of Preferred Stock, and the Parties and the
Corporation agree to take all action with their respective power, including,
but not limited to the voting of Capital Stock, required to cause all such
Common Stock to be available for such issuance upon conversion at all times.
2.4 Liquidity Events. The Parties agree that the Purchasers
shall have control over a merger or consolidation of the Corporation, the sale
or other disposition of all or a majority of its assets or capital, a public
offering of Capital Stock or a dissolution or liquidation of the Corporation
(collectively, "Liquidity Events") and agree to cooperate as reasonably
requested by the Purchasers and take all action within their respective power
(including, but not limited to, the voting of Capital Stock and using all
reasonable efforts to have their designees on the Board of Directors vote as
directors) to consummate a Liquidity Event designated by the Purchasers, it
being understood that the Corporation shall bear all of the Parties' reasonable
out-of-pocket expenses in connection therewith. Without limiting the
generality of the foregoing, each of Bace and the other Parties (other than the
Purchasers), agrees (i) to sell the shares of Common Stock and Common Stock
Equivalents held by him on the same basis as the Purchasers in connection with
any Liquidity Event structured as a sale of Common Stock or Common Stock
Equivalents, (ii) in connection with any Liquidity Event structured as a
merger, consolidation or sale of assets, to not perfect or enforce any rights
they might otherwise have to demand an appraisal for the shares of Common Stock
or Common Stock Equivalents held by them and (iii) to refrain from otherwise
attempting to impede, delay or prevent the consummation of a Liquidity Event
sought by the Purchasers.
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ARTICLE 3
TRANSFER OF SECURITIES
3.1 Transfers. During the term hereof, no Party shall sell,
transfer or otherwise dispose of, hypothecate or otherwise encumber
(voluntarily or involuntarily) (any such sale, transfer, disposition,
hypothecation or encumbrance being referred to as a "transfer") any Common
Stock or Common Stock Equivalents except as expressly permitted in any
subsection of this Section 3.1.
(a) A Party may transfer shares of Common Stock or Common
Stock Equivalents, to an Affiliate thereof; provided, that (i) such Party first
delivers to the Corporation the written representation of such Party and such
Affiliate, expressly for the benefit of the Corporation and the other Parties,
that such transfer is not being made for purposes of circumventing the
provisions of this Article 3 and that such Affiliate agrees to be bound by the
terms and provisions of this Agreement and (ii) the Corporation determines, in
its reasonable discretion, that such representation is true. Notwithstanding
the foregoing, none of Bace, Tyler, Xxxxxxxx or any Bace Employee may transfer
shares of Common Stock or Common Stock Equivalents pursuant to this Section
3.1(a) (other than to Tyler, Xxxxxxxx or Bace, so long as a majority of the
voting rights and equity ownership with respect to Bace continues to be held by
Tyler or Xxxxxxxx) unless Tyler, Xxxxxxxx and Bace (but only counting Bace if a
majority of the voting rights and equity ownership with respect to Bace
continues to be held by Tyler or Xxxxxxxx) continue to hold in the aggregate a
majority of Series B Preferred Stock and the Common Stock Equivalents relating
thereto.
(b) A Party may transfer shares of Common Stock or Common
Stock Equivalents pursuant to a registered public offering or pursuant to Rule
144 (other than Subsection (k) thereof) promulgated under the Securities Act or
any successor rule or regulation then in place.
(c) A Party (the "Transferor") may at any time give written
notice (the "Transferor's Notice") to the Corporation and the other Parties
(the "Other Parties") that it has received a bona fide written offer to
purchase any or all shares of such Party's Common Stock or Common Stock
Equivalents and that such Party desires to transfer any or all of such shares
or Common Stock Equivalents. The Transferor's Notice shall specify the
proposed transferee thereof, all material terms of the proposed transaction,
including the number of shares of Common Stock or Common Stock Equivalents to
be transferred and the amount and type of consideration to be received
therefor, shall be accompanied by a copy of such bona fide offer, and shall
contain an undertaking by the proposed transferee to honor any Participation
Offer (as defined below) which is made in accordance with the terms hereof and
shall contain the following offers:
(i) The Transferor shall offer to sell (the "First Option")
all such shares or Common Stock Equivalents to the Corporation for
cash at the same price per share or
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per Common Stock Equivalent as to be paid by the proposed transferee.
Regardless of whether the Corporation exercises the First Option, to
the extent the consideration to be paid by the proposed transferee
consists of assets other than cash, the cash equivalent of such
consideration shall be determined reasonably and in good faith by the
Corporation. The cash equivalent determination required by the
preceding sentence, as well as the decision whether or not the
Corporation will accept the First Option, in any particular instance
shall be made by the Board of Directors, excluding therefrom any
directors designated by the Transferor or the proposed transferee (or
any Affiliate thereof), who may be counted for quorum purposes but
shall abstain from any such decision, utilizing any method and/or
advisory assistance the Board of Directors deems appropriate, and the
Corporation shall give the Transferor and the Other Parties written
notice of such determination within 20 days after receipt of the
Transferor's Notice. If the Corporation (A) fails to notify the
Transferor in writing within 20 days after receipt of the Transferor's
Notice that it elects to accept the First Option or (B) by written
notice rejects the First Option, in whole or in part, the Transferor
shall offer to sell (the "Second Option") the shares or Common Stock
Equivalents not so purchased by the Corporation to the Other Parties
who are Accredited Investors and any Affiliate of an Other Party that
is not an Accredited Investor so designated by such Other Party if
such Affiliate is an Accredited Investor (collectively, the
"Accredited Parties") for cash at the same price as the Corporation is
entitled to purchase such shares or Common Stock Equivalents pursuant
to the First Option. The Accredited Parties may purchase the shares
or Common Stock Equivalents so offered in the proportions upon which
they mutually agree, or, if they are unable to agree upon an
allocation of such shares or Common Stock Equivalents among
themselves, then in proportion to the number of shares of Fully
Diluted Common Stock owned by each such Accredited Party who wishes to
participate in the purchase of such shares or Common Stock Equivalents
pursuant to the Second Option. The Second Option may be accepted by
one or more of such Accredited Parties by written notice delivered to
the Transferor within thirty days after receipt of the Transferor's
Notice. Unless, through exercise of the First Option and the Second
Option, all the shares or Common Stock Equivalents proposed to be
transferred in the Transferor's Notice are to be acquired by the
Corporation and Other Parties, the Transferor may transfer all shares
or Common Stock Equivalents covered by the Transferor's Notice to the
proposed transferee upon the terms of such transfer set forth in the
Transferor's Notice, and, if the Participation Offer described in
clause (ii) below has been accepted, subject to and in compliance with
the Participation Offer; provided, however, that such transfer must
occur no later than 75 days after the date the Transferor's Notice was
received by the Corporation or five days after the expiration or
termination of any waiting period applicable to such transfer pursuant
to the HSR Act, whichever is later. If the First Option or the Second
Option, as the case may be, is accepted in a manner such that all
shares or Common Stock Equivalents covered by the Transferor's Notice
are to be purchased, the Transferor shall, except as otherwise
required by clause (ii) below, transfer all such shares or Common
Stock Equivalents (free of all liens and encumbrances except this
Agreement) to the respective purchasers thereof
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within 20 days after the date such offer is accepted by the
Corporation and Accredited Parties, whichever is later, against
delivery by the purchasers of the consideration for such shares;
provided that, if the HSR Act is applicable to the First Option or the
Second Option, such date shall be extended to the date which is five
days after the date the applicable waiting period expires or is
terminated.
(ii) In the Transferor's Notice, the Transferor shall
offer (the "Participation Offer") to include in the proposed transfer
to the proposed transferee referred to in Section 3.1(c) a number of
shares or Common Stock Equivalents designated by any of the Other
Parties, not to exceed, in respect of any such Other Party, the number
of shares or Common Stock Equivalents equal to the product of (A) the
aggregate number of shares or Common Stock Equivalents to be
transferred by the Transferor to the proposed transferee and (B) a
fraction with a numerator equal to the number of shares of Fully
Diluted Common Stock that such Other Party owns and a denominator
equal to the number of shares of Fully Diluted Common Stock owned by
the Transferor and each Other Party who wishes to participate in the
proposed transfer pursuant to the Participation Offer; provided, that,
if the consideration to be received by the Transferor includes any
securities, only Accredited Parties shall be entitled to include their
shares or Common Stock Equivalents in such transfer. The Participation
Offer shall be conditioned upon the Transferor transferring shares or
Common Stock Equivalents pursuant to the First Option and/or the
Second Option or consummating (which it shall not be obligated to do)
the transactions contemplated in the Transferor's Notice with the
transferee named therein. If any Party or Other Parties have accepted
the Participation Offer, the Transferor shall reduce to the extent
necessary the number of shares or Common Stock Equivalents it
otherwise would have sold in the proposed transfer so as to permit
Other Parties who have accepted the Participation Offer to sell the
number of shares or Common Stock Equivalents that they are entitled to
sell under this clause (ii), and the Transferor and such other Party
or Other Parties shall transfer the number of shares or Common Stock
Equivalents specified in the Participation Offer as follows: (W) to
the Corporation, if it exercised the First Option in whole, or (X) if
the Corporation exercised the First Option in part and the Other Party
or other Parties who exercised the Second Option do so with respect to
the remaining shares or Common Stock Equivalents, to the Corporation
and the Other Party or other Parties, or (Y) if the Corporation did
not exercise the First Option, to the other Party or Other Parties who
exercised the Second Option in full, if any, or (Z) in all other
events, to the proposed transferee in accordance with the terms of
such transfer set forth in the Transferor's Notice.
(d) No shares of Common Stock or Common Stock Equivalents may
be transferred by a Party (other than pursuant to an effective registration
statement under the Securities Act otherwise permitted hereunder) unless, upon
the request of the Corporation, such Party first delivers to the Corporation an
opinion of counsel, reasonably satisfactory to the Corporation, to the effect
that such transfer is not required to be registered under the Securities Act.
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(e) Transfers pursuant to Sections 3.1(a) and 3.1(b) shall
not be subject to Section 3.1(c). Other than transfers pursuant to Section
3.1(b), no transfers of shares of Common Stock or Common Stock Equivalents
shall be made unless prior to the consummation thereof, the Party transferring
such shares delivers to the Corporation in form reasonably acceptable to the
Corporation a written agreement of the proposed transferee to become a Party
and be bound by the terms hereof.
(f) Any purported transfer of Common Stock or Common Stock
Equivalents by a Party which is not permitted by the foregoing provisions of
this Section, or which is in violation of such provisions, shall be void and of
no force and effect whatsoever.
(g) Notwithstanding any provision to the contrary, the pledge
of Common Stock or Common Stock Equivalents to secure indebtedness or other
liabilities of the Corporation at the Corporation's request (including, without
limitation, the pledge pursuant to the pledge agreement contemplated by the
Loan Documents, as such term is defined in the Investment Agreement), and any
sale or disposition pursuant to the terms of any such pledge, shall not
constitute a transfer pursuant to Section 3.
3.2 Certain Events Not Deemed Transfers. In no event shall
any of the following constitute a transfer of shares or Common Stock
Equivalents for purposes of Section 3.1: an exchange, reclassification or
other conversion of shares into any cash, securities or other property pursuant
to (i) the terms thereof (including, without limitation, the conversion of the
Preferred Stock into Common Stock), (ii) a merger, consolidation or
recapitalization of the Corporation or any Subsidiary with, or (iii) a sale or
transfer by the Corporation or any Subsidiary of all or substantially all its
assets to, any person or entity.
3.3 Control of Bace by Tyler and Xxxxxxxx. Xxxxx and
Xxxxxxxx agree that so long as Bace owns any Common Stock Equivalents they will
maintain ownership and control of a majority of the equity interest and voting
power in Bace.
3.4 Pledge of Shares at the Request of the Corporation. If
requested by the Board of Directors and approved by Purchasers holding at
least a majority of the Fully Diluted Common Stock then held by the Purchasers,
the Corporation may require all Parties (excepting those exempted as provided
in the last sentence of this Section 3.4) to pledge the shares of Capital Stock
held by them (or a portion thereof pro rata among all such Parties) to secure
indebtedness and other liabilities of the Corporation or its Subsidiaries.
Each Party shall be obligated to execute and deliver such pledge agreements,
consents, financing statements or other certificates, instruments, agreements,
notices or other documents as the Board of Directors and such Purchasers may
deem necessary or advisable in connection therewith. In the event such a
pledge of shares of Capital Stock occurs and the pledgee forecloses upon a
pledge by a Party in a manner disproportionate to that of any other Party
(except for events in which such Party is in default of a covenant under its
pledge agreement other than through an act or omission of the Corporation or a
Subsidiary thereof), all Parties shall contribute portions of their remaining
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shares of Capital Stock in order to make such foreclosure proportionate among
all Parties; provided, however, that any proceeds obtained by such Party from
such a foreclosure shall be distributed among such Party and all other Parties
making such a contribution in the proportion to the shares of Capital Stock
held by them after such contribution. A Party may be exempted from the
obligation to pledge shares of Capital Stock or to contribute shares of Capital
Stock and proceeds with respect to any indebtedness or liabilities under this
Section 3.4 if such exemption is approved by (i) the holders of a majority of
the Fully Diluted Common Stock represented by Series A Preferred and Class A
Common Stock into which Series A Preferred has been converted and (ii) the
holders of a majority of the Fully Diluted Common Stock represented by Series B
Preferred and Class A Common Stock into which Series B Preferred has been
converted (the "Series B Majority Holders").
ARTICLE 4
TERMINATION
4.1 Termination. All provisions of this Agreement shall
terminate (a) in respect of all Parties, upon the consummation of a Qualified
Public Offering (provided, that (x) the obligations of the Parties to vote for
two (or three if the Board of Directors has seven members) designees of Bace to
the Board of Directors and three (or four if the Board of Directors had seven
members) designees of the Purchasers, pursuant to Section 2.1(a) (it being
understood that the size of the Board of Directors may be increased beyond
seven members in connection with a Qualified Public Offering and that the
Purchasers shall have the right to designate all such additional directors but
with such designees being subject to the approval of the Series B Majority
Holders) and (y) the requirement to make a Participation Offer as provided in
Section 3.1(c)(ii) except in the case of a transaction or transfer otherwise
exempt from Article 3 or a tender offer or similar offer or transaction made
available to all Parties hereto, shall all survive for a period of two years
from such a termination upon the consummation of a Qualified Public Offering
or, if earlier, the time this Agreement would otherwise terminate pursuant to
this Section 4.1); (b) in respect of any Party, when such Party (and its
Affiliates who acquired shares of Common Stock from such Party) no longer owns
any Common Stock or Common Stock Equivalents; (c) in respect of all Parties,
upon the written consent of Parties who then own 80% or more of the Fully
Diluted Common Stock held by all of the Parties (including either Tyler or
Xxxxxxxx if Bace remains a Party); and (d) in any event, upon the dissolution
of the Corporation.
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ARTICLE 5
MISCELLANEOUS
5.1 Amendment. Subject to the following sentence, this
Agreement may be altered or amended by the written consent of the Corporation
and Parties who then own 80% or more of the Fully Diluted Common Stock held by
all of the Parties (including at least one of Tyler, Xxxxxxxx or Bace if any
of them remains a Party owning Common Stock Equivalents subject to the terms of
this Agreement), and such alteration or amendment shall be binding upon all
Parties to this Agreement and all other persons. No alteration or amendment
that adversely affects the rights of a Party hereto shall be enforceable
against such Party until such Party has consented in writing to such alteration
or amendment; provided that any alteration or amendment made for the purpose of
adding an additional Party hereto shall not be deemed to adversely affect the
rights of any other Party hereto.
5.2 Equitable Relief. The Parties and the Corporation
recognize that the obligations imposed on them in this Agreement are special,
unique, and of extraordinary character, and that in the event of breach by any
party, damages will be an insufficient remedy; consequently, it is agreed that
the Parties hereto and the Corporation may have specific performance,
injunction, injunctive or other equitable relief (in addition to damages) as a
remedy for the enforcement hereof, without proving damages.
5.3 Assignment. Except as otherwise expressly provided
herein, the terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective successors and permitted assigns of the
Parties and the Corporation. No such assignment shall relieve the assignor
from any liability hereunder. No assignment hereof shall be effective until
the Party making an assignment hereof delivers to the Corporation an executed
counterpart of this Agreement by the transferee or an agreement in writing
executed by the transferee to be bound by the terms hereof to the same extent
as if such transferee was a Party hereto.
5.4 Shares Subject to this Agreement. All shares of Common
Stock or Common Stock Equivalents now owned or hereafter acquired by any of the
Parties shall be subject to the terms of this Agreement.
5.5 Legend. Certificates evidencing shares of Common Stock or
Common Stock Equivalents owned by the Parties shall bear a legend in
substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE OFFERED OR SOLD, UNLESS IT
HAS BEEN REGISTERED UNDER SUCH SECURITIES ACT OR UNLESS AN
EXEMPTION FROM REGISTRATION IS AVAILABLE. THIS SECURITY IS
SUBJECT TO RESTRICTIONS ON TRANSFER, VOTING RESTRICTIONS AND
OTHER TERMS AND CONDITIONS SET FORTH IN
-12-
13
THE STOCKHOLDERS AGREEMENT, DATED AS OF MAY 15, 1996, AS IT MAY BE
AMENDED FROM TIME TO TIME, A COPY OF WHICH MAY BE OBTAINED FROM THE
CORPORATION AT ITS PRINCIPAL EXECUTIVE OFFICES.
5.6 Notices. Any and all notices, designations, consents,
offers, acceptances or any other communications provided for herein shall be
given in writing by personal delivery overnight courier or telecopy, which
shall be addressed, or sent, to the respective addresses set forth on the
signature pages hereto or such other address as designated by any Party by like
notice from time to time.
5.7 Counterparts. This Agreement may be executed in two or
more counterparts and each counterpart shall be deemed to be an original and
which counterparts together shall constitute one and the same agreement of the
parties hereto.
5.8 Section Headings. Headings contained in this Agreement
are inserted only as a matter of convenience and in no way define, limit or
extend the scope or intent of this Agreement or any provisions hereof.
5.9 Governing Law. This Agreement shall be governed by the
laws of the State of Delaware, without giving effect to the conflicts of laws
principles thereof.
5.10 Entire Agreement. This Agreement contains the entities
understanding of the parties hereto respecting the subject matter hereof, and
supersedes all prior agreements, discussions and understandings.
5.11 Cumulative Rights. The rights of the Parties and the
Corporation under this Agreement are cumulative and in addition to all similar
and other rights of the parties under other agreements, including the
Investment Agreement.
5.12 Severability. Should any particular provision of this
Agreement be adjudicated to be invalid or unenforceable, such provision shall
be deemed deleted and the remainder of the Agreement, nevertheless, shall
remain unaffected and fully enforceable; further, to the extent any provision
herewith is deemed unenforceable by virtue of its scope but may be made
enforceable by limitation thereof, the parties hereto agree the same shall,
nevertheless, be enforceable to the fullest extent permissible.
5.13 No Waiver. No delay on the part of any party hereunder
in exercising any right, power or privilege under this Agreement shall operate
as a waiver thereof, nor shall any single or partial exercise of any right,
power or privilege hereunder or thereunder preclude other or further exercise
thereof, or the exercise of any other right, power of privilege.
-13-
14
5.14 Headings. The headings in this Agreement are intended
solely for convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
5.15 Attorneys' Fees. In the event of any action or suit
based upon or arising out of any actual or alleged breach by any party of any
representation, warranty or agreement in this Agreement, the prevailing party
shall be entitled to recover its reasonable attorneys' fees and expenses of
such action or suit from the other party, in addition to any other relief
ordered by the court.
5.16 Action by Purchasers. Any action, approval or notice
that can be given by the Purchasers as a group pursuant to this Agreement shall
be deemed to be taken or made if so taken or made by Purchasers holding at
least a majority of the Fully Diluted Common Stock then held by the Purchasers.
-14-
15
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
RENTX INDUSTRIES, INC.
By: /s/ XXXXX X. XXXXXXXX
--------------------------------
Xxxxx X. Xxxxxxxx
Vice President
Address:
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx
BACE INVESTMENTS, LLC
By: /s/ XXXXX X. XXXXXXXX
--------------------------------
Xxxxx X. Xxxxxxxx
Member
Address:
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx
XXXXXXX CAPITAL PARTNERS VI
By: Mesirow Financial Services,
Inc., General Partner
By: /s/ XXXXXX X. XXXXXX
----------------------------
Xxxxxx X. Xxxxxx
Vice President
Address:
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
16
THE EDGEWATER PRIVATE EQUITY FUND
II, L.P.
By: Xxxxxx Management, Inc.
General Partner
By: /s/ X. X. XXXXXX
-------------------------------
Xxxxx X. Xxxxxx
President
Address:
000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxx
/s/ XXXXXXX X. XXXXX
-------------------------------
Xxxxxxx X. Xxxxx
Address:
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
/s/ XXXXX X. XXXXXXXX
-------------------------------
Xxxxx X. Xxxxxxxx
Address:
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
(Signature page to the RentX Industries, Inc.
Stockholders Agreement)
17
AMENDMENT NO. 1
TO
STOCKHOLDERS AGREEMENT
BY AND AMONG
RENTX INDUSTRIES, INC.,
MESIROW CAPITAL PARTNERS VI,
THE EDGEWATER PRIVATE EQUITY FUND II, L.P.
AND
BACE INVESTMENTS, LLC
DATED AS OF MAY 15, 1996
This Amendment No. 1 to the Stockholders Agreement (this "Amendment"),
entered into effective as of May 15, 1996, is by and among RentX Industries,
Inc. ("RentX"), Mesirow Capital Partners VI ("Mesirow"), The Edgewater Private
Equity Fund II, L.P. ("Edgewater"), BACE Investments, LLC ("Bace"), Trustees of
Xxxxxxxx College ("Grinnell") and Inroads Capital Partners, L.P. ("Inroads").
WHEREAS, RentX, Mesirow, Edgewater and Bace have entered into that
certain Stockholders Agreement, dated as of May 15, 1996 (the "Stockholders
Agreement");
WHEREAS, Grinnell, in addition to certain other persons, became a party
to the Stockholders Agreement on May 29, 1996;
WHEREAS, Inroads became a party to the Stockholders Agreement on August
2, 1996;
WHEREAS, the parties desire to enter into this Amendment in order to
amend certain provisions of the Stockholders Agreement; and
WHEREAS, the Stockholders Agreement may be amended by the consent of the
parties hereto;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
respective parties hereto hereby agree as follows:
1. DEFINITIONS. Unless stated otherwise, capitalized terms used in
this Amendment shall have the meanings specified in the Stockholders Agreement.
2. AMENDMENTS TO SECTION 1.1. Clause (v) of the definition of the
term "Affiliate" set forth in Section 1.1 of the Stockholders Agreement is
hereby amended to read in its entirety as follows:
18
"(v) in the case of Bace, Tyler, Zoellner, any Affiliate of Tyler, any
Affiliate of Xxxxxxxx or any employee of or independent contractor to
Bace or Bace Industries, LLC other than Tyler or Xxxxxxxx (a "Bace
Employee"),"
3. AMENDMENT TO SECTION 3.1. Section 3.1(a) of the Stockholders
Agreement is hereby amended by adding the following sentence immediately before
the existing first sentence in Section 3.1(a):
"A Party who is or was a Bace Employee that holds shares of Common Stock
or Common Stock Equivalents may transfer such shares of Common Stock or
Common Stock Equivalents to Bace or any Affiliate of Bace (other than a
Bace Employee)."
4. GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with the internal laws of the State of Illinois without regard to
its conflicts of law doctrine.
5. COUNTERPARTS. This Amendment may be executed in several
counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument.
-2-
19
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
by the duly authorized officers of the parties hereto as of the date first
above written.
RENTX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxxx X. Xxxxx
Vice President
BACE INVESTMENTS, LLC
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------------
Xxxxx X. Xxxxxxxx
Member
MESIROW CAPITAL PARTNERS VI
By: Mesirow Financial Services, Inc.,
General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx
Vice President
THE EDGEWATER PRIVATE EQUITY FUND II, L.P.
By: Xxxxxx Management, Inc.,
General Partner
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Xxxxx X. Xxxxxx
President
(Signature page to Amendment No. 1 to
Stockholders Agreement)
-3-
20
TRUSTEES OF GRINNELL COLLEGE
By: /s/ Xxxxx X. Xxxx
-------------------------------------------------
Xxxxx X. Xxxx
Vice President for Business and Treasurer
INROADS CAPITAL PARTNERS, L.P.
By: Inroads General Partner, L.P.,
General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Xxxxxxxx X. Xxxxxx
General Partner
(Signature page to Amendment No. 1 to
Stockholders Agreement)
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21
AMENDMENT NO. 2
TO
STOCKHOLDERS AGREEMENT
BY AND AMONG
RENTX INDUSTRIES, INC.,
MESIROW CAPITAL PARTNERS VI,
THE EDGEWATER PRIVATE EQUITY FUND II, L.P.
AND
BACE INVESTMENTS, LLC
DATED AS OF MAY 15, 1996
This Amendment No. 2 to the Stockholders Agreement (this "Amendment"),
entered into effective as of June 9, 1997, is by and among RentX Industries,
Inc. ("RentX"), Mesirow Capital Partners VI ("Mesirow"), The Edgewater Private
Equity Fund II, L.P. ("Edgewater"), BACE Investments, LLC ("Bace"), Trustees of
Xxxxxxxx College ("Grinnell") and Inroads Capital Partners, L.P. ("Inroads").
WHEREAS, RentX, Mesirow, Edgewater and Bace have entered into that
certain Stockholders Agreement, dated as of May 15, 1996 (as amended by
Amendment No. 1 thereto, dated as of May 15, 1996, the "Stockholders
Agreement");
WHEREAS, Grinnell, in addition to certain other persons, became a party
to the Stockholders Agreement on May 29, 1996;
WHEREAS, Inroads became a party to the Stockholders Agreement on August
2, 1996;
WHEREAS, the parties desire to enter into this Amendment in order to
amend certain provisions of the Stockholders Agreement; and
WHEREAS, the Stockholders Agreement may be amended by the consent of the
parties hereto;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
respective parties hereto hereby agree as follows:
1. DEFINITIONS. Unless stated otherwise, capitalized terms used in
this Amendment shall have the meanings specified in the Stockholders Agreement.
2. AMENDMENTS TO SECTION 1.1. Clause (v) of the definition of the
term "Affiliate" set forth in Section 1.1 of the Stockholders Agreement is
hereby amended to read in its entirety as follows:
22
"(v) in the case of Bace, Tyler, Zoellner, any Affiliate of Tyler, any
Affiliate of Xxxxxxxx or any employee of or independent contractor to
Bace or Bace Industries, LLC other than Tyler or Xxxxxxxx (a "Bace
Employee") (and Xxxxxxx X. Xxxxxxxxx ("Xxxxxxxxx") shall, for all
purposes of this Agreement, be considered a Bace Employee with respect
to the shares of Series B Preferred to be sold to Xxxxxxxxx by Bace in
connection with the termination of his independent contractor
relationship with Bace),"
3. AMENDMENT TO SECTION 2.2. The first sentence of Section 2.2 of
the Stockholders Agreement is hereby amended to read in its entirety as
follows:
"It is understood and accepted that a Party may not have any interests
(other than the ownership of not more than 5% of the common stock of a
publicly held entity in which such party does not have any other
involvement) or engage in any other business ventures which compete in
any material respect with the activities of the Corporation or its
Subsidiaries; provided, however, that Xxxxxxxxx may have such interests
and engage in such business ventures as are not prohibited by that
certain Brokerage Agreement dated as of June 9 , 1997 among the
Corporation, Xxxxxxxxx & Associates, Inc. and Xxxxxxxxx; provided,
further, that such Brokerage Agreement may not be amended without the
prior consent of the Majority Holders (as such term is defined in the
Investment Agreement)."
4. GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with the internal laws of the State of Illinois without regard to
its conflicts of law doctrine.
5. COUNTERPARTS. This Amendment may be executed in several
counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument.
-2-
23
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
by the duly authorized officers of the parties hereto as of the date first
above written.
RENTX INDUSTRIES, INC.
By: /s/ XXXXXX X. XXXXXXXXX
-------------------------------------------------
Xxxxxx X. Xxxxxxxxx
President
BACE INVESTMENTS, LLC
By: /s/ XXXXXXX X. XXXXX
-------------------------------------------------
Xxxxxxx X. Xxxxx
Member
MESIROW CAPITAL PARTNERS VI
By: Mesirow Financial Services, Inc.,
General Partner
By: /s/ XXXXXX X. XXXXXX
------------------------------------------
Xxxxxx X. Xxxxxx
Vice President
THE EDGEWATER PRIVATE EQUITY FUND II, L.P.
By: Xxxxxx Management, Inc.,
General Partner
By: /s/ XXXXX X. XXXXXX
------------------------------------------
Xxxxx X. Xxxxxx
President
(Signature page to Amendment No. 2 to
Stockholders Agreement)
-3-
24
TRUSTEES OF GRINNELL COLLEGE
By: /s/ XXXXX X. XXXXXX
-------------------------------------------------
Xxxxx X. Xxxxxx
Authorized Agent
INROADS CAPITAL PARTNERS, L.P.
By: Inroads General Partners, L.P.,
General Partner
By: /s/ XXXXXXXX X. XXXXXX
------------------------------------------
Xxxxxxxx X. Xxxxxx
General Partner
(Signature page to Amendment No. 2 to
Stockholders Agreement)
-4-
25
AMENDMENT NO. 3
TO
STOCKHOLDERS AGREEMENT
BY AND AMONG
RENTX INDUSTRIES, INC.,
MESIROW CAPITAL PARTNERS VI,
THE EDGEWATER PRIVATE EQUITY FUND II, L.P.
AND
BACE INVESTMENTS, LLC
DATED AS OF MAY 15, 1996
This Amendment No. 3 to the Stockholders Agreement (this
"Amendment"), dated as of June 26, 1997, is by and among RentX Industries, Inc.
("RentX"), Mesirow Capital Partners VI ("Mesirow"), The Edgewater Private Equity
Fund II, L.P.("Edgewater"), BACE Investments, LLC ("Bace"), Trustees of Xxxxxxxx
College ("Grinnell") and Inroads Capital Partners, L.P. ("Inroads").
WHEREAS, RentX, Mesirow, Edgewater and Bace have entered into
that certain Stockholders Agreement, dated as of May 15, 1996 (as amended by
Amendment No. 1 thereto, dated as of May 15, 1996, and Amendment No. 2 thereto,
effective as of June 9, 1997, the "Stockholders Agreement");
WHEREAS, Grinnell, in addition to certain other persons,
became a party to the Stockholders Agreement on May 29, 1996;
WHEREAS, Inroads became a party to the Stockholders Agreement
on August 2, 1996;
WHEREAS, the parties hereto desire to enter into this
Amendment in order to amend certain provisions of the Stockholders Agreement;
and
WHEREAS, the Stockholders Agreement may be amended by the
consent of the parties hereto;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
respective parties hereto hereby agree as follows:
1. Definitions. Unless stated otherwise, capitalized
terms used in this Amendment shall have the meanings specified in the
Stockholders Agreement.
26
2. Amendments to Section 1.1. (a) The definition of
the term "Common Stock Equivalents" set forth in Section 1.1 of the
Stockholders Agreement is hereby amended to read in its entirety as follows:
""Common Stock Equivalents" means (without duplication with
any other Common Stock or Common Stock Equivalents) rights,
warrants, options (including, without limitation, employee
stock options), convertible securities or indebtedness,
exchangeable securities or indebtedness, or other rights,
exercisable for or convertible or exchangeable into, directly
or indirectly, Common Stock and securities convertible or
exchangeable into Common Stock, whether at the time of
issuance or upon the passage of time or the occurrence of
some future event, including (without limitation) the Series
A Preferred, the Series B Preferred and the Series C
Preferred."
(b) The definition of the term "Preferred Stock" set forth in
Section 1.1 of the Stockholders Agreement is hereby amended to read in its
entirety as follows:
""Preferred Stock" means the Series A Preferred Stock, the
Series B Preferred Stock and the Series C Preferred Stock of
the Corporation, par value $1.00 per share."
(c) Section 1.1 of the Stockholders Agreement is hereby
amended to include the definition of "Series C Preferred" as follows:
""Series C Preferred" means the 3,000 shares of convertible
Series C Preferred Stock, $1.00 par value per share, of the
Corporation."
3. Amendment to Section 3.4. The last sentence of Section
3.4 of the Stockholders Agreement is hereby amended to read in its entirety as
follows:
"A Party may be exempted from the obligation to pledge shares
of Capital Stock or to contribute shares of Capital Stock and
proceeds with respect to any indebtedness or liabilities
under this Section 3.4 if such exemption is approved by (i)
the holders of a majority of the Fully Diluted Common Stock
represented by Series A Preferred and Class A Common Stock
into which Series A Preferred has been converted, (ii) the
holders of a majority of the Fully Diluted Common Stock
represented by Series B Preferred and Class A Common Stock
into which Series B Preferred has been converted (the "Series
B Majority
- 2 -
27
Holders"), and (iii) the holders of a majority of the Fully
Diluted Common Stock represented by Series C Preferred and
Class A Common Stock into which Series C Preferred has been
converted."
4. Governing Law. This Amendment shall be governed by
and construed in accordance with the internal laws of the State of Illinois
without regard to its conflicts of law doctrine.
5. Counterparts. This Amendment may be executed in
several counterparts, each of which will be deemed an original but all of which
together shall constitute one and the same instrument.
- 3 -
28
IN WITNESS WHEREOF, this Amendment No. 3 to the Stockholders
Agreement has been duly executed and delivered by the duly authorized officers
of the parties hereto as of the date first above written.
RENTX INDUSTRIES, INC.
By: /s/ XXXXXX X. XXXXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President - CEO
BACE INVESTMENTS, LLC
By: /s/ XXXXXXX X. XXXXX
--------------------------------
Xxxxxxx X. Xxxxx
Member
MESIROW CAPITAL PARTNERS VI
By: Mesirow Financial Services,
Inc., General Partner
By: /s/ XXXXXX X. XXXXXX
---------------------------
Xxxxxx X. Xxxxxx
Vice President
THE EDGEWATER PRIVATE EQUITY
FUND II, L.P.
By: Xxxxxx Management, Inc.,
General Partner
By: /s/ X.X. XXXXXX
---------------------------
Xxxxx X. Xxxxxx
President
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29
TRUSTEES OF XXXXXXXX COLLEGE
By: /s/ X.X. XXXXXX
--------------------------------
Xxxxx X. Xxxxxx
Authorized Agent
INROADS CAPITAL PARTNERS, L.P.
By: Inroads General Partners, L.P.
General Partner
By: /s/ XXXXXXXX X. XXXXXX
---------------------------
Xxxxxxxx X. Xxxxxx
General Partner
(Signature Page to Amendment No. 3 to
the Stockholders Agreement)
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30
AMENDMENT NO. 4
TO
STOCKHOLDERS AGREEMENT
BY AND AMONG
RENTX INDUSTRIES, INC.,
MESIROW CAPITAL PARTNERS VI,
THE EDGEWATER PRIVATE EQUITY FUND II, L.P.
AND
BACE INVESTMENTS, LLC
DATED AS OF MAY 15, 1996
This Amendment No. 4 to Stockholders Agreement (this "Amendment"), dated
as of September 19, 1997, is by and among RentX Industries, Inc. ("RentX"),
BACE Investments, LLC ("BACE") and the other parties to the Stockholders
Agreement (as defined below). As provided in the Stockholders Agreement, this
Amendment shall become binding upon RentX and all such other parties when it
has been signed by RentX and Parties (as defined in the Stockholders Agreement)
owning 80% or more of the Fully Diluted Common Stock (as defined in the
Stockholders Agreement) held by all of the Parties (including BACE), whether or
not it is signed by all of the persons for whom signature spaces are provided
below.
WHEREAS, RentX, BACE, Mesirow Capital Partners VI and The Edgewater
Private Equity Fund II, L.P. have entered into that certain Stockholders
Agreement, dated as of May 15, 1996 (as amended, the "Stockholders Agreement");
WHEREAS, Trustees of Xxxxxxxx College, Inroads Capital Partners, L.P.
and certain other persons have become parties to the Stockholders Agreement at
various times prior to the date hereof; and
WHEREAS, the parties hereto desire to enter into this Amendment in order
to amend certain provisions of the Stockholders Agreement;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
respective parties hereto hereby agree as follows:
1. Amendment to Definition of Qualified Public Offering. The
definition of "Qualified Public Offering" in Section 1.1 of the Stockholders
Agreement is amended by changing the figure "25%" which appears therein to
"20%."
2. Amendment to Obligation to Vote for Designees to Board of
Directors. Sections 2.1 and 4.1 of the Stockholders Agreement obligate the
Parties to vote for certain designees of BACE and the Purchasers to the Board
of Directors. The Parties agree that the Board of Directors shall consist of
nine directors comprised of four designees of the Purchasers, three designees of
31
BACE, the Chief Executive Officer of the Corporation and an independent
director chosen by unanimous vote of the other directors. The provisions of
Sections 2.1 and 4.1 shall obligate the parties to exercise all of their rights
with respect to the Corporation to create and maintain a Board of Directors so
comprised, subject to the survival and termination provisions of Section 4.1.
Either BACE or the Purchasers may defer the exercise of the right to designate
one or more directors without waiving that right and, in the event of such
deferral, the position shall remain vacant until such right is exercised or
terminates.
3. Governing Law. This Amendment shall be governed by and construed
in accordance with the internal laws of the State of Illinois without regard to
its conflicts of laws doctrine.
4. Counterparts. This Amendment may be underlined in several
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(Signature Page follows)
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32
IN WITNESS WHEREOF, this Amendment No. 4 to Stockholders Agreement has
been duly executed and delivered by the undersigned as of the date first above
written.
RENTX INDUSTRIES, INC.
Date: September 19, 1997 By: /s/ XXXXXX X. XXXXXXXXX
------------------------------------------
Name: XXXXXX X. XXXXXXXXX
----------------------------------------
Title: PRESIDENT
---------------------------------------
BACE INVESTMENTS, LLC
Date: September 19, 1997 By: /s/ XXXXX X. XXXXXXXX
------------------------------------------
Name: XXXXX X. XXXXXXXX
----------------------------------------
Title: MEMBER
---------------------------------------
MESIROW CAPITAL PARTNERS VI
By: Mesirow Financial Services, Inc.,
General Partner
Date: September 19, 1997 By: /s/ XXXXXX X. XXXXXX
---------------------------------
Xxxxxx X. Xxxxxx
Vice President
THE EDGEWATER PRIVATE EQUITY
FUND II, L.P.
By: Xxxxxx Management, Inc.,
General Partner
Date: September 19, 1997 By: /s/ XXXXX X. XXXXXX
----------------------------------
Xxxxx X. Xxxxxx
President
(Signature Page to Amendment No. 4 to
Stockholders Agreement)
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33
TRUSTEES OF XXXXXXXX COLLEGE
Date: September 19, 1997 By: /s/ XXXXX X. XXXX
------------------------------------------
Xxxxx X. Xxxx
Vice President for Business
and Treasurer
INROADS CAPITAL PARTNERS, L.P.
By: Inroads General Partners, L.P.,
General Partner
Date: September 19, 1997 By: /s/ XXXXXXXX X. XXXXXX
----------------------------------
Xxxxxxxx X. Xxxxxx
General Partner
Date: September 17, 1997 /s/ XXXXXX X. XXXXX
---------------------------------------------
Xxxxxx X. Xxxxx, V.P. President
Date: September 19, 1997 /s/ XXXXX X. XXXXXXXX
---------------------------------------------
Xxxxx X. Xxxxxxxx
Date: September 15, 1997 /s/ XXXX X. XXXXXXX
---------------------------------------------
Xxxx X. Xxxxxxx
Date: September 16, 1997 /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Date: September 19, 1997 /s/ XXXXXX X. XXXXXXXXX
---------------------------------------------
Xxxxxx X. Xxxxxxxxx
(Signature Page to Amendment No. 4 to
Stockholders Agreement)
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34
Date: September 19, 1997 /s/ XXXXXXXX X. XXXXXXX
---------------------------------------------
Xxxxxxxx X. Xxxxxxx
Date: September 19, 1997 /s/ XXXX X. XXXX
---------------------------------------------
Xxxx X. Xxxx
Date: September 15, 1997 /s/ B. XXXXX XXXXXXX
---------------------------------------------
B. Xxxxx Xxxxxxx
Date: September 19, 1997 /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------------
Xxxxxxx X. XxxXxxxxx
Date: September 15, 1997 /s/ XXXXXX X. XXXXXXX
---------------------------------------------
Xxxxxx X. Xxxxxxx
Date: September 19, 1997 /s/ XXXXXX X. XXXXX
---------------------------------------------
Xxxxxx X. Xxxxx
Date: September 17, 1997 /s/ XXXXXXX X. XXXXXXX
---------------------------------------------
Xxxxxxx X. Xxxxxxx
Date: September 15, 1997 /s/ XXXXXXX X. XXXXX
---------------------------------------------
Xxxxxxx X. Xxxxx
Date: September 19, 1997 /s/ XXXXXX X. XXXXXX
---------------------------------------------
Xxxxxx X. Xxxxxx
Date: September 15, 1997 /s/ XXXXXX X. XXXX
---------------------------------------------
Xxxxxxx X. Xxxx
Date: September 15, 1997 /s/ XXXXXXX X. XXXXXXX
---------------------------------------------
Xxxxxxx X. Xxxxxxx
(Signature Page to Amendment No. 4 to
Stockholders Agreement)
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