EXHIBIT 10(d)
FORM OF PRIVATE PLACEMENT PURCHASE AGREEMENT
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United Rentals, Inc.
Four Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Re: Purchase of Units
Gentlemen:
1. Purchase of Units.
(a) United Rentals, Inc. (the "Company") hereby sells to the undersigned
(the "Subscriber"), and Subscriber hereby purchases from the Company,
the number of Units set forth opposite Subscriber's name below. The
purchase price for each Unit is $3.50, and is payable concurrently
herewith.
(b) Each Unit consists of one share of common stock of the Company ("common
stock") and a warrant (collectively, the "Warrants") in the form of
Exhibit A to purchase one-half share of common stock. The preceding
sentence gives effect to a contemplated stock split upon which Xxxxxxx
Xxxxxx and his family will own 10,000,00 shares of common stock and
5,000,000 Warrants.
(c) Until the fifth anniversary of the date of this Agreement or, if
earlier, until the Termination Date (as defined in Section 2(b)(iii))
all of Subscriber's shares of common stock and Warrants will be
registered in the name of Subscriber and will be delivered to him,
provided that Subscriber shall promptly redeliver such certificates to
Xxxx Xxxxx, together with a stock and warrant power therefor endorsed
in blank. Xxxx Xxxxx will hold such certificates and stock and warrant
power for the benefit of Subscriber as a Shareholder and also for the
benefit of the Company hereunder in order to effectuate the provisions
of this Agreement. Should Subscriber request that Xxxx Xxxxx deliver
any such certificates or stock or warrant power to a lender as
collateral for a loan to Subscriber, and should Xxxx Xxxxx do so in his
sole discretion, Subscriber shall direct such lender to redeliver such
certificates or stock or warrant power to Xxxx Xxxxx on repayment of
Subscriber's obligations to such lender.
2. Units Subject to Call.
(a) Subject to the provisions of Section 2(b), upon notice by the
Company to Subscriber given at any time or times (a "Call
Notice"), the Company shall be obligated to purchase from
Subscriber, and Subscriber shall be obligated to sell to the
Company, at the purchase price and at the closing set forth
below, that number of Units which is set forth in the Call
Notice. The Company's rights to purchase Units as aforesaid is
referred to herein as a "Call." For the purposes of this
Section, "Units" also includes any shares of common stock
which have been issued upon exercise of Warrants included in
the Units.
(b) Period during which Calls may be made.
(i) THE COMPANY MAY MAKE CALLS BEFORE SEPTEMBER 1, 2005
IN THE EVENT THAT EITHER OF THE OR BOTH OF THE
FOLLOWING (A "DEFAULT EVENT") SHALL BE TRUE:
(A) THE COMPANY --IN ITS SOLE INCONTESTABLE
DISCRETION -- BELIEVES THAT SUBSCRIBER HAS AT
ANY TIME BREACHED ANY COVENANT OR OBLIGATION TO
THE COMPANY OR UNDERSTANDING WITH THE COMPANY,
WHETHER OR NOT SUCH COVENANT OR OBLIGATION OR
UNDERSTANDING IS LEGALLY ENFORCEABLE, OR
(B) THE COMPANY - IN ITS SOLE INCONTESTABLE
DISCRETION -- BELIEVES THAT SUBSCRIBER HAS AT
ANY TIME CONDUCTED HIMSELF OR HERSELF IN A
MANNER WHICH ADVERSELY
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AFFECTS OR COULD ADVERSELY AFFECT THE COMPANY.
(ii) So long as no default event has occurred:
(A) all Units shall be subject to Call until the first
anniversary of the date of this Agreement;
(B) one-third of the Units shall cease to be subject to a
Call on the first anniversary of the date of this
Agreement; and
(C) two-thirds of the Units shall cease to be subject to a
Call on the second anniversary of the date of this
Agreement; and
(D) no Calls may be made after the third anniversary of the
date of this Agreement.
(iii) Notwithstanding anything to the contrary contained herein,
no Calls may be made after the occurrence of a Change of
Control (as hereinafter defined), provided that this clause
(iii) shall not apply so long as after such Change of
Control Xxxxxxx Xxxxxx is the Company's chief executive
officer. The first date as of which Calls may not be made
under this Section is referred to above as the "Termination
Date."
(iv) A "Change of Control" for the purposes of this agreement
shall be deemed to have occurred if and only if:
(A) any "person" is or becomes a "beneficial owner" (as
defined in Rule 13d-3 under the Securities Exchange
Act of 1934 (the "Act") directly or indirectly, of
securities of United Rentals, Inc. representing 50% or
more of the total voting power represented by then
outstanding voting securities of United Rentals, Inc.,
or has the power (whether as a result of stock
ownership, revocable or irrevocable proxies, contract
or otherwise) or ability to elect or cause the
election of directors consisting at the time of such
election of a majority of the Board. The term
"persons" is defined in Sections 13(d) and 14(d) of
the Act, except that the term "person" shall not
include:
(1) any person or an Affiliate of such person who as
of the date of this Agreement owns 10% or more of
the total voting power represented by the
outstanding voting securities of the Company; and
(2) a trustee or other fiduciary holding securities
under any employee benefit plan of the Company or
a corporation which is owned directly or
indirectly by the stockholders of the Company in
substantially the same percentage as their
ownership in the Company; or
(B) the stockholders of United Rentals, Inc. approve a
merger of United Rentals, Inc., or a plan of complete
liquidation of United Rentals, Inc., or an agreement
for the sale or disposition by United Rentals, Inc. of
all or substantially all of its assets, or any other
business combination of United Rentals, Inc. with any
other corporation, other than any such merger or
business combination which would result in the voting
securities of United Rentals, Inc. outstanding
immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted
into voting securities of the surviving entity) at
least 50% of the total voting power represented by the
voting securities of United Rentals, Inc. or such
surviving entity outstanding immediately after such
merger or business
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combination. An "Affiliate" of a person is a
person that controls, is controlled by, or is
under common control with such person.
(c) Subscriber acknowledges that the Company may in its discretion elect to
call Units owned by one or more shareholders but not to call Units owned
by other shareholders.
(d) The purchase price for each Unit subject to a Call shall be payable in
cash at the Closing (as hereinafter defined) and shall be equal to $3.50,
plus a return thereon accruing at the rate of 10% per annum from the date
hereof until the Closing therefor.
(e) The closing (the "Closing") for each Call shall occur at the offices of
the Company on the 10th business day after the Call Notice therefor. At
the Closing, Subscriber shall deliver to the Company the securities
comprising the Units in form acceptable for transfer, free and clear of
all liens, claims and encumbrances.
(f) Until the Closing for any Units, Subscriber shall have the right to vote
the shares of common stock included in the Units and to receive any
dividends declared thereon.
3. Come Along and Bring Along.
(a) Until the fifth anniversary of the date of this Agreement, should Xxxxxxx
Xxxxxx or any entity which Xxxxxxx Xxxxxx designates as his affiliate sell
any Units, Warrants or common stock which he owns beneficially in a
commercial, non-charitable transaction (a "triggering sale"), then Xxxxxxx
Xxxxxx will concurrently therewith or as soon as practicable before or
after the triggering sale use his best efforts on behalf of Subscriber to
sell a pro rata portion of Subscriber's Units, Warrants or common stock at
then prevailing prices. In calculating Subscriber's pro rata portion under
the preceding sentence, account shall be taken only of Subscriber's shares
of common stock which were purchased as part of the Units or which were
issued to Subscriber on exercise of the Warrants.
(b) Xxxxxxx Xxxxxx shall give to the Subscriber oral or written or telephonic
notice of any such sales as soon as practicable after the sales have been
consummated, or, in the case of a series of sales, after the series of
sales have been consummated. Should Subscriber within 24 hours' thereafter
request by written notice to Xxxxxxx Xxxxxx that all (but not any part) of
such sales be rescinded by reallocating such sales to other persons who
are affiliates of the Company, Xxxxxxx Xxxxxx will rescind all or any part
of such sales to the extent that such reallocations can be made in his
reasonable discretion.
(c) Neither the Company nor Xxxxxxx Xxxxxx represents or warrants that any
triggering sale will occur.
(d) Subscriber agrees that until the fifth anniversary of the date of this
Agreement (or, if later, until the second anniversary of any consummation
of a public offering by the Company), Subscriber shall not without the
Company's prior written consent (which may be withheld or delayed at its
discretion, and which may be offered to some shareholders and not to other
shareholders) make any sale or other disposition of any Units, warrants or
common stock except as required under Section 3(a). The foregoing shall
not restrict charitable gifts which do not for any year after the date of
this Agreement exceed 10% of the number of Units initially purchased by
Subscriber hereunder.
4. Attorney in Fact. Subscriber hereby irrevocably appoints each of Xxxxxxx
Xxxxxx and the Company as his or her attorney in fact, with full power of
substitution and in Subscriber's name or otherwise, to effect all sales which
Subscriber is required to make under the terms of this Agreement. Xxxx Xxxxx is
expressly authorized to deliver the certificates and stock power he holds under
this Agreement to the buyer in any such transaction.
5. Securities and other Representations.
(a) Subscriber represents and warrants that it is purchasing the Units solely
for investment solely for its
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own account and not with a view to or for the resale or distribution
thereof.
(b) In addition to the restrictions set forth in Section 3,
Subscriber understands that it may sell or otherwise transfer
the Units or the Warrants or the shares issuable on exercise
of the Warrants only if such transaction is duly registered
under the Securities Act of 1933, as amended, or if Subscriber
shall have received the favorable opinion of counsel to the
holder, which opinion shall be reasonably satisfactory to
counsel to the Company, to the effect that such sale or other
transfer may be made in the absence of registration under the
Securities Act of 1933, as amended, and registration or
qualification in every applicable state.
(c) Subscriber has no demand, piggyback or other registration
rights.
(d) Subscriber has not relied upon the advice of a "Purchaser
Representative" (as defined in Regulation D of the Securities
Act) in evaluating the risks and merits of this investment.
(e) Subscriber represents and warrants that Subscriber is an
"accredited investor" as such term is defined in Rule 501 of
Regulation D promulgated pursuant to the Securities Act of
1933, as amended, and shall be such on the date any shares are
issued to the holder; Subscriber acknowledges that Subscriber
is able to bear the economic risk of losing Subscriber's
entire investment in the shares and understands that an
investment in the Company involves substantial risks;
Subscriber has the power and authority to enter into this
agreement, and the execution and delivery of, and performance
under this agreement shall not conflict with any rule,
regulation, judgment or agreement applicable to the
Subscriber; and Subscriber has invested in previous
transactions involving restricted securities. Subscriber
realizes that the Units are not a liquid investment.
6. Subscriber Aware of Risks; No Representations. Subscriber has the knowledge
and experience to evaluate the Company and the risks and merits relating
thereto. Subscriber acknowledges that the Company is newly formed and had
heretofore not engaged in any business activities. NEITHER THE COMPANY NOR ANY
OF ITS SHAREHOLDERS MAKES ANY REPRESENTATIONS OR WARRANTIES OR PROJECTIONS
WHATSOEVER WITH RESPECT TO ANY MATTER OR THING, WHETHER WITH RESPECT TO THE
PRESENT OR FUTURE PERFORMANCE OR PROSPECTS OF THE COMPANY OR OF ITS COMPETITORS,
OR OTHERWISE.
7. No Offsets. The obligations of Subscriber under this Agreement shall not be
subject to any defense or offset or counterclaim for any matter or thing,
including, without limitation, any actual or claimed breach by the Company of
any obligation or covenant, it being understood that any and all claims by
Subscriber may be brought by Subscriber only in separate proceedings.
8. Miscellaneous.
(a) The certificates representing the Units will be legended to
reflect the restrictions and other provisions of this
Agreement.
(b) This Agreement may not be changed or terminated except by
written agreement. It shall be binding on the parties and on
their personal representatives and permitted assigns.
(c) It sets forth all agreements of the parties. It supersedes and
cancels all prior agreements with respect to the subject
matter hereof. It shall be enforceable by decrees of specific
performance (without posting bond or other security) as well
as by other available remedies.
(d) Each party hereto shall be responsible for its own expenses
with regard to the negotiation and execution of this
Agreement.
(e) This Agreement shall be governed by, and construed in
accordance with, the laws of Delaware. The federal and state
courts sitting in Connecticut shall have exclusive
jurisdiction over all matters relating to this Agreement.
Trial by jury is expressly waived.
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(f) All notices, requests, service of process, consents, and other
communications under this Agreement shall be in writing and
shall be deemed to have been delivered (i) on the date
personally delivered or (ii) one day after properly sent by
Federal Express, addressed to the respective parties at their
address set forth in this Agreement or (iii) on the day
transmitted by facsimile so long as a confirmation copy is
simultaneously forwarded by Federal Express, in each case
addressed to the respective parties at their address set forth
in this Agreement. Either party hereto may designate a
different address by providing written notice of such new
address to the other party hereto as provided above.
Dated:
SUBSCRIBER:
Signature: _________________________
Type or print name:
Address:
Social Security No:
Number of Units:
AGREED:
UNITED RENTALS, INC.
BY_______________________
Confirmed as to Sections 3 and 4:
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Xxxxxxx Xxxxxx
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Exhibit A
Neither this Warrant nor the shares of Common Stock issuable on exercise of this
Warrant have been registered under the Securities Act of 1933. None of such
securities may be transferred in the absence of registration under such Act or
an opinion of counsel to the effect that such registration is not required.
UNITED RENTALS, INC.
WARRANT
DATED:
Number of Shares:
Holder:
Address:
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1. THIS CERTIFIES THAT the Holder is entitled to purchase from UNITED RENTALS,
INC., a Delaware corporation (hereinafter called the "Company"), the number of
shares of the Company's common stock ("Common Stock") set forth above, at an
exercise price equal to $10.00. This Warrant may be exercised in whole or in
part at any time prior to expiration.
2. All rights granted under this Warrant shall expire on the tenth
anniversary of the date of issuance of this Warrant.
3. This Warrant and the Common Stock issuable on exercise of this Warrant
(the "Underlying Shares") may be transferred, sold, assigned or hypothecated,
only if registered by the Company under the Securities Act of 1933 (the "Act")
or if the Company has received from counsel to the Company a written opinion to
the effect that registration of the Warrant or the Underlying Shares is not
necessary in connection with such transfer, sale, assignment or hypothecation.
The Holder shall through its counsel provide such information as is reasonably
necessary in connection with such opinion. TRANSFER OF THIS WARRANT OF THE
UNDERLYING SHARES IS ALSO RESTRICTED UNDER THE TERMS OF A PRIVATE PLACEMENT
PURCHASE AGREEMENT DATED OF EVEN DATE HEREWITH. The Warrant and the Underlying
Shares shall be appropriately legended to reflect these restrictions and stop
transfer instructions shall apply.
4. Any permitted assignment of this Warrant shall be effected by the Holder
by (i) executing the form of assignment at the end hereof, (ii) surrendering the
Warrant for cancellation at the office of the Company, accompanied by the
opinion of counsel to the Company referred to above; and (iii) unless in
connection with an effective registration statement which covers the sale of
this Warrant and or the shares underlying the Warrant, delivery to the Company
of a statement by the transferee (in a form acceptable to the Company and its
counsel) that such Warrant is being acquired by the Holder for investment and
not with a view to its distribution or resale; whereupon the Company shall
issue, in the name or names specified by the Holder (including the Holder) new
Warrants representing in the aggregate rights to purchase the same number of
Shares as are purchasable under the Warrant surrendered. Such Warrants shall be
exercisable immediately upon any such assignment of the number of Warrants
assigned. The transferor will pay all relevant transfer taxes. Replacement
warrants shall bear the same legend as is borne by this Warrant.
5. The term "Holder" should be deemed to include any permitted record
transferee of this Warrant.
6. The Company covenants and agrees that all shares of Common Stock which
may be issued upon exercise hereof will, upon issuance, be duly and validly
issued, fully paid and non-assessable and no personal liability will attach to
the
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holder thereof. The Company further covenants and agrees that, during the
periods within which this Warrant may be exercised, the Company will at all
times have authorized and reserved a sufficient number of shares of Common Stock
for issuance upon exercise of this Warrant and all other Warrants.
7. This Warrant shall not entitle the Holder to any voting rights or other
rights as a stockholder of the Company.
8. In the event that as a result of reorganization, merger, consolidation,
liquidation, recapitalization, stock split, combination of shares or stock
dividends payable with respect to such Common Stock, the outstanding shares of
Common Stock of the Company are at any time increased or decreased or changed
into or exchanged for a different number or kind of share or other security of
the Company or of another corporation, then appropriate adjustments in the
number and kind of such securities then subject to this Warrant shall be made
effective as of the date of such occurrence so that the position of the Holder
upon exercise will be the same as it would have been had it owned immediately
prior to the occurrence of such events the Common Stock subject to this Warrant.
Such adjustment shall be made successively whenever any event listed above shall
occur and the Company will notify the Holder of the Warrant of each such
adjustment. Any fraction of a share resulting from any adjustment shall be
eliminated and the price per share of the remaining shares subject to this
Warrant adjusted accordingly.
9. The rights represented by this Warrant may be exercised at any time
within the period above specified by (i) surrender of this Warrant (with the
purchase form at the end hereof properly executed) at the principal executive
office of the Company (or such other office or agency of the Company as it may
designate by notice in writing to the Holder at the address of the Holder
appearing on the books of the Company); (ii) payment to the Company of the
exercise price for the number of Shares specified in the above-mentioned
purchase form together with applicable stock transfer taxes, if any; and (iii)
unless in connection with an effective registration statement which covers the
sale of the shares underlying the Warrant, the delivery to the Company of a
statement by the Holder (in a form acceptable to the Company and its counsel)
that such Shares are being acquired by the Holder for investment and not with a
view to their distribution or resale.
10. This Warrant shall be governed by and construed in accordance with the
laws of the State of Delaware. The federal and state courts in Connecticut shall
have exclusive jurisdiction over this instrument and the enforcement thereof.
Service of process shall be effective if by certified mail, return receipt
requested. All notices shall be in writing and shall be deemed given upon
receipt by the party to whom addressed. This instrument shall be enforceable by
decrees of specific performances well as other remedies.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officers under Its corporate seal, and to be dated as of the
date set forth above.
UNITED RENTALS, INC.
By__________________________
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