Exhibit
10.2


 


EXECUTION
VERSION


 


 


AMENDED
AND RESTATED


 


STOCKHOLDERS’
AGREEMENT,


 


 


dated
as of September 1, 2005,


 


 


by
and among


 


 


PROGRESS
RAIL SERVICES PARENT CORP.


 


 


and


 


THE
STOCKHOLDERS NAMED HEREIN


 


 












 


 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
  CERTAIN DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Defined Terms

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
  TRANSFERS OF SHARES

  	
  6

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Restrictions Generally;
  Securities Act

  	
  6

  
	
   

  	
   

  	
   

  
	
  2.2

  	
  Legend

  	
  6

  
	
   

  	
   

  	
   

  
	
  2.3

  	
  Transfers by
  Stockholders

  	
  7

  
	
   

  	
   

  	
   

  
	
  2.4

  	
  Drag-Along Rights

  	
  8

  
	
   

  	
   

  	
   

  
	
  2.5

  	
  Rights of Inclusion

  	
  9

  
	
   

  	
   

  	
   

  
	
  2.6

  	
  Rights of Offer

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
  ELECTION OF DIRECTORS

  	
  10

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Board of Directors of
  Holdings

  	
  10

  
	
   

  	
   

  	
   

  
	
  3.2

  	
  Removal

  	
  11

  
	
   

  	
   

  	
   

  
	
  3.3

  	
  Vacancies

  	
  11

  
	
   

  	
   

  	
   

  
	
  3.4

  	
  Voting Agreement

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
  CERTAIN COVENANTS OF THE PARTIES

  	
  11

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Management
  Stockholders; Additional Stockholders

  	
  11

  
	
   

  	
   

  	
   

  
	
  4.2

  	
  Purchaser
  Representative

  	
  12

  
	
   

  	
   

  	
   

  
	
  4.3

  	
  Holdback Obligations

  	
  12

  
	
   

  	
   

  	
   

  
	
  4.4

  	
  Non-Compete

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
  MISCELLANEOUS

  	
  13

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Governing Law

  	
  13

  
	
   

  	
   

  	
   

  
	
  5.2

  	
  Entire Agreement;
  Amendments

  	
  13

  
	
   

  	
   

  	
   

  
	
  5.3

  	
  Term

  	
  13

  
	
   

  	
   

  	
   

  
	
  5.4

  	
  Certain Actions

  	
  14

  
	
   

  	
   

  	
   

  
	
  5.5

  	
  Inspection

  	
  14

  
	
   

  	
   

  	
   

  
	
  5.6

  	
  Recapitalization,
  Exchanges, Etc., Affecting Shares

  	
  14

  
	
   

  	
   

  	
   

  
	
  5.7

  	
  Waiver

  	
  15

  
	
   

  	
   

  	
   

  
	
  5.8

  	
  Successors and Assigns

  	
  15

  



 


1












 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  5.9

  	
  Remedies

  	
  15

  
	
   

  	
   

  	
   

  
	
  5.10

  	
  Invalid Provisions

  	
  15

  
	
   

  	
   

  	
   

  
	
  5.11

  	
  Headings

  	
  15

  
	
   

  	
   

  	
   

  
	
  5.12

  	
  Further Assurances

  	
  15

  
	
   

  	
   

  	
   

  
	
  5.13

  	
  Gender

  	
  16

  
	
   

  	
   

  	
   

  
	
  5.14

  	
  Counterparts

  	
  16

  
	
   

  	
   

  	
   

  
	
  5.15

  	
  Notices

  	
  16

  
	
   

  	
   

  	
   

  
	
  5.16

  	
  Consent to Jurisdiction
  and Service of Process

  	
  17

  



 


2












 


AMENDED AND RESTATED
STOCKHOLDERS’ AGREEMENT, dated as of September 1, 2005 (the “Effective Date”),
by and among Progress Rail Services Parent Corp., a Delaware corporation (the “Company”),
One Equity Partners LLC, a Delaware limited liability company (“OEP”),
Gary Wilson (“GW”), Al Boyer (“AB”), Robert Day (“RD”) and
each of the individuals and entities whose names appear under the heading
“Management Group” on the signature pages hereto (individually, a “Management
Group Member” and, collectively, the “Management Group”).
Capitalized terms used and not otherwise defined herein have the respective
meanings ascribed thereto in Article I.


 


RECITALS


 


WHEREAS, on March 24, 2005 (the “Acquisition
Closing Date”), pursuant to the terms and conditions of that certain
Agreement and Plan of Merger, dated as of February 17, 2005, as amended,
modified and restated from time to time, by and among Progress Rail Services
Holdings Corp., a Delaware corporation and wholly owned direct subsidiary of
the Company (“Holdings”), PRSC Acquisition Corp., an Alabama corporation
and indirect wholly owned subsidiary of the Company (“Progress Rail Merger
Sub”), PMRC Acquisition Co., a Kentucky corporation and indirect wholly
owned subsidiary of the Company (“Progress Metal Merger Sub”), Progress
Rail Services Corporation (“Progress Rail”), Progress Metal Reclamation
Company (“Progress Metal”), Progress Fuels Corporation and Progress
Energy, Inc., (i) Progress Rail Merger Sub merged with and into Progress Rail,
with Progress Rail as the surviving corporation, and (ii) Progress Metal Merger
Sub merged with and into Progress Metal, with Progress Metal as the surviving
corporation (such mergers, collectively, the “Acquisition”); and


 


WHEREAS, in connection with the Acquisition, OEP
entered into a Stockholders’ Agreement, dated as of the Acquisition Closing
Date, which is hereby being amended and restated;


 


WHEREAS, on the Effective Date the parties
hereto will hold securities of the Company as set forth on Annex I; and


 


WHEREAS, the parties desire to enter into this
Agreement to regulate certain aspects of their relationship and to provide for,
among other things, restrictions on the transfer or other disposition of
securities of the Company and matters relating to the corporate governance of
the Company.


 


NOW,
THEREFORE, for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:


 


ARTICLE
1


 


CERTAIN
DEFINITIONS


 


1.1          
Defined Terms.


 


(a)          
The following
capitalized terms, when used in this Agreement, have the respective meanings
set forth below:


 


“AB Stockholders” means AB and each Permitted
Transferee thereof (and each Transferee thereof that executes and delivers a
Joinder Agreement, if so provided in such Joinder Agreement) to whom such AB
Stockholder Transfers Shares and only with respect to such Transferred Shares,
so long as any such Person shall hold such Shares.


 












 


“Additional Stockholder” means any Person to
whom the Company issues Shares after the date hereof other than any OEP
Stockholder, GW Stockholder, AB Stockholder, RD Stockholder or Management
Stockholder.


 


“Affiliate” means, with respect to any Person,
any other Person that controls, is controlled by or is under common control
with such Person. For the purposes of this definition, “control” (including,
with its correlative meanings, the terms “controlled by” and “under common
control with”), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
securities, by contract or otherwise.


 


“Agreement” means this Amended and Restated
Stockholders’ Agreement and the exhibits and annexes hereto, as the same may be
amended, modified, supplemented or restated from time to time in accordance
with the terms hereof.


 


“Associate” means, with respect to any Person,
(i) any corporation or organization of which such Person is an officer or
partner or is, directly or indirectly, the beneficial owner of five (5%)
percent or more of any class of equity securities, (ii) any trust or other
estate in which such Person has a substantial beneficial interest or as to
which such Person serves as trustee or in a similar fiduciary capacity and
(iii) any relative or spouse of such Person, or any relative of such spouse,
who has the same home as such Person or who is a director or officer of such
Person or any of its parents or subsidiaries.


 


“Board” means the Board of Directors of the
Company.


 


“Commission” means the Securities and Exchange
Commission.


 


“Common Stock” means the Common Stock, par
value $.01 per share, of the Company, any securities into which such Common
Stock shall have been changed or any securities resulting from any
reclassification or recapitalization of such Common Stock.


 


“Competitor” means any company in the business
of, directly or indirectly, providing rail, railcar or transit systems parts or
repair or maintenance services, including, without limitation, railcar and
locomotive repair, trackwork, rail parts reconditioning and sales, scrap metal
recycling, railcar leasing and other rail-related products or services.


 


“Diluted Basis” means, (i) with respect to the
calculation of the number of shares of Common Stock, (A) with respect to all
outstanding shares of Common Stock, all shares of Common Stock outstanding at
the time of determination and all shares of Common Stock issuable upon the exercise,
conversion or exchange, as applicable, of all outstanding securities
exercisable, convertible or exchangeable for or into shares of Common Stock at
the time of determination and (B) with respect to shares of Common Stock owned
by one or more Stockholders, all shares of Common Stock owned by such
Stockholder or Stockholders and all shares of Common Stock issuable upon the
exercise, conversion or exchange, as applicable, of all securities owned by
such Stockholder or Stockholders exercisable, convertible or exchangeable into
shares of Common Stock and (ii) with respect to the calculation of the number
of shares of Preferred Stock, (A) with respect to all outstanding shares of
Preferred Stock, all shares of Preferred Stock outstanding at the time of determination
and (B) with respect to shares of Preferred Stock owned by one or more
Stockholders, all shares of Preferred Stock owned by such Stockholder or
Stockholders.


 


2












 


“GW Stockholders” means GW and each Permitted
Transferee thereof (and each Transferee thereof that executes and delivers a
Joinder Agreement, if so provided in such Joinder Agreement) to whom such GW
Stockholder Transfers Shares and only with respect to such Transferred Shares,
so long as any such Person shall hold such Shares.


 


“Investor Stockholders” means the OEP
Stockholders, the GW Stockholders, the AB Stockholders and the RD Stockholders.


 


“Joinder Agreement” means a Joinder Agreement
substantially in the form attached hereto as Exhibit A.


 


“Lien” means any lien, claim, restriction,
security interest, preemptive right, covenant, easement, mortgage, encumbrance
or other limitation.


 


“Management Stockholders” means the Management
Group Members and each employee of the Company or any of its Subsidiaries who
owns Shares and becomes a party hereto and each Permitted Transferee (and each
Transferee thereof that executes and delivers a Joinder Agreement, if so
provided in such Joinder Agreement) to whom such Management Stockholder
Transfers Shares and only with respect to such Transferred Shares, so long as
any such Person shall hold such Shares.


 


“New Stock” means any securities issued after
the Effective Date, other than any securities issued or issuable (i) in
connection with any stock split, stock dividend, reclassification, recapitalization,
or similar event of any securities; (ii) in a public offering registered under
the Securities Act; (iii) to officers, directors or employees of the Company or
any direct or indirect Subsidiary thereof; (iv) upon exercise, conversion,
exchange or redemption of any securities outstanding prior to the New Stock
Offer; or (v) in connection with any acquisition of assets or of any business
(whether by merger, stock acquisition, asset acquisition or otherwise).


 


“OEP Stockholders” means OEP and each Permitted
Transferee (and each Transferee thereof that executes and delivers a Joinder
Agreement, if so provided in such Joinder Agreement) to whom OEP or any OEP
Stockholder Transfers any Shares and only with respect to such Transferred
Shares, so long as any such Person shall hold such Shares.


 


“Permitted Transferee” means:


 


(i)            with respect to any Stockholder who is a
natural person, (A) the spouse, any lineal ancestor or descendant (including by
adoption and stepchildren) of such Stockholder or any of their Permitted
Transferees or any trust of which such Stockholder or any Permitted Transferees
of such Stockholder are the controlling trustees and which is established
solely for the benefit of any of the foregoing individuals, (B) the estate of
such Stockholder established by reason of any of the foregoing individual’s
death or any beneficiaries of such estate, or (C) any corporation, limited
liability company or partnership or any of their respective Permitted
Transferees, all of the interests of which are (or is) owned by one or more of
the Persons identified in this clause (i) or any of their respective Permitted
Transferees; provided, however, that (1) with respect to RD,
Oakmont Corporation, any of its directors or officers (other than any GW
Stockholder or AB Stockholder) and any sibling of RD shall also be deemed
Permitted Transferees of RD; (2) with respect to GW, any charitable
organization under the sole control of GW or any of his Permitted Transferees
shall also be deemed a Permitted Transferee of GW and (iii) with respect to AB,
any charitable organization under the sole control of AB or any of his
Permitted Transferees shall also be deemed a Permitted Transferee of AB;


 


3












 


(ii)           with respect to any OEP Stockholder, (A)
any other OEP Stockholder or any of their Permitted Transferees, (B) any
Affiliate of any OEP Stockholder or any of their Permitted Transferees, or (C)
in the case of OEP, any director, officer, employee, representative, general
partner, limited partner or member of OEP or any of their Permitted
Transferees; and


 


(iii)          with respect to any GW Stockholder, AB
Stockholder, RD Stockholder or Additional Stockholder that is not a natural
Person, any Affiliate of such Stockholder that is not also a Stockholder or an
Affiliate of another Stockholder.


 


“Person” means an individual, partnership,
corporation, limited liability company or partnership, trust, unincorporated
organization, joint venture, government (or agency or political subdivision
thereof) or any other entity of any kind.


 


“Preferred Stock” means the Series A
Participating Preferred Stock, par value $0.01 per share, of the Company, and
any securities into which such Preferred Stock shall have been changed or any
securities resulting from any reclassification or recapitalization of such
Preferred Stock.


 


“Pro Rata” means, with respect to one or more
Stockholders, (i) with respect to the Common Stock, in proportion to the number
of shares of Common Stock on a Diluted Basis owned by such Stockholder or
Stockholders and (ii) with respect to the Preferred Stock, in proportion to the
number of shares of Preferred Stock on a Diluted Basis owned by such
Stockholder or Stockholders.


 


“Qualifying Offering” means the consummation of
an underwritten public offering of Common Stock registered under the Securities
Act that together with the consummation of any other prior underwritten public
offerings of Common Stock registered under the Securities Act results in gross
proceeds to the Company of at least $90 million in the aggregate.


 


“RD Stockholders” means RD and each Permitted
Transferee thereof (and each Transferee thereof that executes and delivers a
Joinder Agreement, if so provided in such Joinder Agreement) to whom such RD
Stockholder Transfers Shares and only with respect to such Transferred Shares,
so long as any such Person shall hold such Shares.


 


 “Restricted Stock Purchase Agreements”
means the Restricted Stock Purchase Agreement entered into at any time or from
time to time on or after the date hereof, by the Company and any director,
officer, employee, consultant or agent of the Company or any of its
Subsidiaries, as any such agreement may be amended, restated or modified from
time to time, and any other agreement designated as such by the Board.


 


“Sale of the Company” means the sale of the
Company (whether by merger, consolidation, recapitalization, reorganization,
sale of securities, sale of assets or otherwise) in one transaction or series
of related transactions to a Person or Persons that is not (i) One Equity
Partners LLC or any Affiliate thereof or (ii) a Permitted Transferee of One
Equity Partners LLC or any Affiliate thereof pursuant to which such Person or
Persons (together with its Affiliates) acquires (a) securities representing at
least a majority of the voting power of the Common Stock of the Company,
assuming the conversion, exchange or exercise of all securities convertible,
exchangeable or exercisable for or into Common Stock, or (b) all or
substantially all of the Company’s assets on a consolidated basis.


 


4












 


“Sale of Preferred Stock” means the Transfer of
Shares (other than a Sale of the Company) to a Person or Persons that is not a
Stockholder or a Permitted Transferee or Associate of any Stockholder or of any
Permitted Transferee of any Stockholder in which only Preferred Stock is
Transferred.


 


“Securities Act” means the Securities Act of
1933, as amended, and the rules and regulations of the Commission thereunder.


 


“Series A Liquidation Preference” shall have
the meaning ascribed thereto in the Amended and Restated Certificate of
Incorporation of the Company, as the same may be amended from time to time.


 


“Shares” means shares of Common Stock and
shares of Preferred Stock and any other securities designated as such by the
Board.


 


“Stockholders” means each of the OEP
Stockholders, the GW Stockholders, the AB Stockholders, the RD Stockholders,
the Management Stockholders and the Additional Stockholders.


 


“Subscription Agreements” means that certain
Subscription Agreement, as of March 24, 2005, between the Company and OEP and
any other agreement pursuant to which a Stockholder purchases Shares from the
Company.


 


“Subsidiary” means, with respect to any Person,
any corporation, partnership, limited liability company, association or other
business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof,
or (ii) if a partnership, limited liability company, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more Subsidiaries of that Person or a combination
thereof. For purposes hereof, a Person or Persons shall be deemed to have a
majority ownership interest in a partnership, limited liability company,
association or other business entity if such Person or Persons shall be
allocated a majority of partnership, limited liability company, association or
other business entity gains or losses or shall be or control the managing
director or general partner of such partnership, limited liability company,
association or other business entity.


 


“Transfer” means, directly or indirectly, any
sale, transfer, assignment, hypothecation, pledge or other disposition of any
Shares or any interests therein.


 


“Transferee” means any Person to whom a
Transfer is made.


 


(b)           Unless otherwise provided herein, all
accounting terms used in this Agreement shall be interpreted in accordance with
generally accepted accounting principles as in effect from time to time,
applied on a consistent basis.


 


(c)           The following terms, when used in this
Agreement, shall have the meanings defined for such terms in the Section set
forth below:


 


5












 




	
  Term

  	
   

  	
  Section

  
	
  “AB”

  	
   

  	
  Preamble

  
	
  “Acquisition Closing
  Date”

  	
   

  	
  Recitals

  
	
  “Buyer”

  	
   

  	
  2.6(a)

  
	
  “Company”

  	
   

  	
  Preamble

  
	
  “Effective Date”

  	
   

  	
  Preamble

  
	
  “Election Notice”

  	
   

  	
  2.6

  
	
  “GW”

  	
   

  	
  Preamble

  
	
  “GW Nominee”

  	
   

  	
  3.1(a)

  
	
  “GW Nominee Vacancy”

  	
   

  	
  3.3

  
	
  “Holdings”

  	
   

  	
  Recitals

  
	
  “Holdings Board”

  	
   

  	
  3.1(a)

  
	
  “Inclusion Notice”

  	
   

  	
  2.5(a)

  
	
  “Inclusion Right”

  	
   

  	
  2.5(b)

  
	
  “Inclusion Shares”

  	
   

  	
  2.5(b)

  
	
  “Management Group”

  	
   

  	
  Preamble

  
	
  “Management Group
  Members”

  	
   

  	
  Preamble

  
	
  “New Stock Notice”

  	
   

  	
  2.6

  
	
  “New Stock Offer”

  	
   

  	
  2.6

  
	
  “New Stock Offeree”

  	
   

  	
  2.6

  
	
  “New Stock Units”

  	
   

  	
  2.6

  
	
  “Nominee” and
  “Nominees”

  	
   

  	
  3.1(a)

  
	
  “OEP”

  	
   

  	
  Preamble

  
	
  “OEP Nominees”

  	
   

  	
  3.1(a)

  
	
  “Offerees”

  	
   

  	
  2.5(a)

  
	
  “Progress Metal”

  	
   

  	
  Recitals

  
	
  “Progress Metal Merger
  Sub”

  	
   

  	
  Recitals

  
	
  “Progress Rail”

  	
   

  	
  Recitals

  
	
  “Progress Rail Merger
  Sub”

  	
   

  	
  Recitals

  
	
  “RD”

  	
   

  	
  Preamble

  
	
  “Sale Notice”

  	
   

  	
  2.4(a)

  
	
  “Section 2.5 Offer”

  	
   

  	
  2.5(a)

  
	
  “Transferor”

  	
   

  	
  2.5(a)

  
	
  “Transferor Shares”

  	
   

  	
  2.5(a)

  
	
  “Wilson Nominee”

  	
   

  	
  3.1(a)

  






 


ARTICLE
2

TRANSFERS OF SHARES


 


2.1          
Restrictions Generally; Securities Act.


 


(a)          
Each Stockholder
agrees that it will not, directly or indirectly, Transfer any Shares in
violation of this Agreement. Any attempt by any Stockholder to Transfer any
Shares in violation of this Agreement shall be null and void and neither the
issuer of such securities nor any transfer agent of such securities shall give
any effect to such attempted Transfer in its stock records.


 


(b)          
Each Stockholder
agrees that, in addition to the other requirements relating to Transfer set
forth in this Agreement and in each Stockholder’s respective Subscription
Agreement or Restricted Stock Purchase Agreement, as applicable, it will not
Transfer any Shares except pursuant to an effective registration statement
under the Securities Act, or, unless waived by the Board, upon receipt by


 


6












 


the Company of an opinion of counsel to the
Stockholder reasonably satisfactory to the Company or a no-action letter from
the Commission addressed to the Company, to the effect that no registration statement
is required because of the availability of an exemption from registration under
the Securities Act.


 


2.2          
Legend.


 


(a)          
Each certificate
representing Shares shall be endorsed with the following legends and such other
legends as may be required by the Restricted Stock Purchase Agreements and
applicable state securities laws:


 


“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A STOCKHOLDERS’ AGREEMENT, DATED AS OF MARCH 24, 2005, AS SUCH
AGREEMENT MAY BE AMENDED, RESTATED OR MODIFIED FROM TIME TO TIME, AND MAY NOT
BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
EXCEPT IN ACCORDANCE WITH THE PROVISIONS THEREOF AND ANY TRANSFEREE OF THESE
SECURITIES SHALL BE SUBJECT TO THE TERMS OF SUCH AGREEMENT. COPIES OF THE
FOREGOING AGREEMENT ARE MAINTAINED WITH THE CORPORATE RECORDS OF THE ISSUER AND
ARE AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICES OF THE ISSUER.”


 


“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS, AND MAY BE OFFERED AND SOLD ONLY IF SO REGISTERED OR IF AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.”


 


(b)          
Any certificate
issued at any time in exchange or substitution for any certificate bearing such
legends (except a new certificate issued upon the completion of a Transfer
pursuant to a registered public offering under the Securities Act and made in
accordance with the Securities Act) shall also bear such legends, unless in the
opinion of counsel for the Company, the Shares represented thereby are no
longer subject to the provisions of this Agreement or the restrictions imposed
under the Securities Act or state securities laws, in which case the applicable
legend (or legends) may be removed.


 


2.3          
Transfers by Stockholders.


 


(a)          
Each of the GW
Stockholders, the AB Stockholders, the RD Stockholders, the Management
Stockholders and the Additional Stockholders severally agrees not to Transfer
any Shares, except (i) to any Permitted Transferee who shall have executed and
delivered to the Company a Joinder Agreement and thereby becomes a party to
this Agreement; (ii) on the terms, and subject to the conditions, set forth in
Section 2.4 (Drag-Along Rights); (iii) on the terms, and subject to the
conditions, set forth in Section 2.5 (Rights of Inclusion); and (iv) on the
terms, and subject to the conditions, set forth in the Restricted Stock
Purchase Agreements or Subscription Agreements, if applicable.


 


(b)          
Notwithstanding
anything herein to contrary, each of the GW Stockholders, the AB Stockholders,
the RD Stockholders, Management Stockholders and Additional Stockholders
severally agrees not to Transfer any Shares to a Competitor except pursuant to
(i) a Sale of the Company, (ii) on the terms, and subject to the conditions,
set forth in Section 2.4 (Drag-Along Rights); or (iii) on the terms, and
subject to the conditions, set forth in Section 2.5 (Rights of Inclusion).


 


7












 


2.4          
Drag-Along Rights.


 


(a)          
Sale of the
Company.    If the OEP Stockholders notify (a “Sale
Notice”) each other Stockholder in writing that the OEP Stockholders desire
to effect a Sale of the Company and specify the terms and conditions of such
proposed sale then, notwithstanding any other provision of this Agreement, each
such other Stockholder shall take all necessary and desirable actions
reasonably requested by such OEP Stockholders in connection with the
consummation of such Sale of the Company, including, without limitation, if
applicable, (i) within ten (10) business days of the receipt of such notice (or
such longer period of time as such OEP Stockholders shall designate in such
notice) such other Stockholders shall cause a Pro Rata number of their respective
Shares (for the avoidance of doubt, based on the percentage of Shares, on a
Diluted Basis, owned by the OEP Stockholders that is being sold) to be sold to
the designated purchaser on the same terms and conditions and for the same per
share consideration and at the same time as the Shares being sold by such OEP
Stockholders or (ii) otherwise participating in such Sale of the Company on the
same terms and conditions and for the same consideration and at the same time
as such OEP Stockholders; provided, that, in the absence of fraud or
willful misconduct, the indemnification obligations, if any, of each
Stockholder provided to the designated purchaser shall not be greater than the
gross proceeds received by each such Stockholder in connection with the Sale of
the Company; provided further, that before the payment of any
consideration in connection with such Sale of the Company to the holders of
Common Stock, the holders of shares of Preferred Stock shall be entitled to
receive the Series A Liquidation Preference in connection with any Sale of the
Company. In furtherance, and not in limitation, of the foregoing, in connection
with a Sale of the Company effected in accordance with this Section 2.4(a),
each Stockholder will, (1) consent to and raise no objections against the Sale
of the Company or the process pursuant to which it was arranged, (2) waive any
dissenter’s rights and other similar rights and (3) execute all documents
containing such terms and conditions as those executed by all such OEP Stockholders
as directed by such OEP Stockholders. In connection with a Sale of the Company,
the Company will pay (A) the costs and expenses incurred by such OEP
Stockholders and (B) the costs and expenses incurred by the GW Stockholders, AB
Stockholders and RD Stockholders as a group (in an amount not to exceed $25,000
in the aggregate), in each case which are not otherwise paid by the purchaser
in connection with such Sale of the Company.


 


(b)          
Sale of Preferred
Stock.  If, at any time or from time to time, the OEP
Stockholders notify each other Stockholder that holds Preferred Stock in
writing that the OEP Stockholders desire to effect a Sale of Preferred Stock
and specify the terms and conditions of such proposed sale then,
notwithstanding any other provision of this Agreement, each such other
Stockholder shall take all necessary and desirable actions reasonably requested
by such OEP Stockholders in connection with the consummation of such Sale of
Preferred Stock, and within ten (10) business days of the receipt of such
notice (or such longer period of time as such OEP Stockholders shall designate
in such notice) such other Stockholders shall cause a Pro Rata number of their
respective Shares of Preferred Stock (for the avoidance of doubt, based on the percentage
of Shares of Preferred Stock, on a Diluted Basis, owned by the OEP Stockholders
that is being sold) to be sold to the designated purchaser on the same terms
and conditions and for the same per share consideration and at the same time as
the Shares of Preferred Stock being sold by such OEP Stockholders; provided,
that, in the absence of fraud or willful misconduct, the indemnification
obligations, if any, of each Stockholder provided to the designated purchaser
shall not be greater than the gross proceeds received by each such Stockholder
in connection with the Sale of Preferred Stock. In furtherance, and not in
limitation, of the foregoing, in connection with a Sale of Preferred Stock
effected in accordance with this Section 2.4(b), each Stockholder will, (i)
consent to and raise no objections against the Sale of Preferred Stock or the
process pursuant to which it was arranged, (ii) waive any dissenter’s rights
and other similar rights and (iii) execute all documents containing such terms
and conditions as those executed by all such OEP Stockholders as directed by
such OEP Stockholders. In connection with a Sale of Preferred Stock, the
Company will pay (A) the costs and expenses incurred by such OEP Stockholders
and (B) the costs and expenses incurred by the GW


 


8












 


Stockholders, AB Stockholders and RD Stockholders as a
group (in an amount not to exceed $10,000 in the aggregate), in each case which
are not otherwise paid by the purchaser in connection with such Sale of
Preferred Stock.


 


2.5          
Rights of Inclusion.


 


(a)          
If any OEP
Stockholder (the “Transferor”) proposes to Transfer any Shares (the “Transferor
Shares”) to one or more third parties (any such third parties are referred
to as the “Buyer”), then, as a condition to such Transfer, the
Transferor shall cause the Buyer to make a written offer (the “Section 2.5
Offer”) to each of the Stockholders holding Shares of the same class (and
series) as the Transferor Shares who are not Transferors (collectively, the “Offerees”),
to sell to the Buyer, at the option of each Offeree, that number of Shares of
the same class (and series) of Shares as the Transferor, determined in
accordance with Section 2.5(b), on the same terms and conditions, including,
without limitation, with respect to price, as are applicable to the Transferor
Shares, all of which will be specified in the Section 2.5 Offer; provided,
however, that the provisions of this Section 2.5 shall not apply to any
Transfer of Shares (i) by the OEP Stockholders to a direct or indirect
Permitted Transferee or (ii) by OEP that, individually or in the aggregate,
does not result in a Transfer other than to direct or indirect Permitted
Transferees (together with all previous such Transfers) of more than 15% of the
Shares of Common Stock owned by OEP on the Acquisition Closing Date to any
Person(s) who is or will be a member of the Management Group or any direct or
indirect Permitted Transferee thereof. The Transferor shall provide a written
notice (the “Inclusion Notice”) of the Section 2.5 Offer to each
Offeree, which may accept the Section 2.5 Offer by providing a written notice
of acceptance of the Section 2.5 Offer to the Transferor no later than thirty
(30) days after delivery of the Inclusion Notice.


 


(b)          
Each Offeree shall
have the right (an “Inclusion Right”) to sell pursuant to the Section
2.5 Offer a Pro Rata number of its Shares (the “Inclusion Shares”) (for
the avoidance of doubt, based on the percentage of Shares, on a Diluted Basis,
owned by the Transferor that is being sold) as is sold by the Transferor.


 


(c)          
The Buyer shall have
ninety (90) days, commencing on the day the Inclusion Notice is mailed, in
which to purchase from the Transferor and the Offerees, the number of Shares
covered by the Section 2.5 Offer with respect to which the Inclusion Right has
been exercised (and the number of Transferor Shares). The terms and conditions
of such sale, including, without limitation, price and form of consideration,
shall be as set forth in the Inclusion Notice, and the timing of such sale
shall be contemporaneously with the sale of the Transferor Shares. If at the
end of such ninety (90)-day period the Buyer has not completed the purchase of
all the Transferor Shares and all the Offerees’ Shares proposed to be sold, the
provisions of this Section 2.5 shall continue to be in effect with respect to
all such Shares as if no Inclusion Notice had been given with respect thereto.


 


(d)          
Prior to any Transfer
of Shares to a Buyer pursuant to this Section 2.5, such Buyer shall execute and
deliver to the Company, for the benefit of the Company and all Stockholders, a
Joinder Agreement and thereby become a party to this Agreement.


 


2.6          
Right of Offer.  Prior to issuing any New Stock to any OEP Stockholder, the
Company shall offer (the “New Stock Offer”) each of the GW Stockholders,
AB Stockholders and RD Stockholders (collectively, the “New Stock Offerees”
and, each, a “New Stock Offeree”) an opportunity to purchase in cash any
or all of its Pro Rata portion of such New Stock on the same terms and
conditions as offered to the OEP Stockholder(s), and, if such New Stock is to
be issued as a part of a unit of securities, the Company shall offer each of
the New Stock Offerees an opportunity to purchase any or all of its Pro Rata
portion of such unit of securities (together with the New Stock, the “New
Stock Units”) on the same terms and conditions as offered to the OEP
Stockholders. The Company shall make such New Stock Offer by


 


9












 


providing each New Stock Offeree with notice (the “New
Stock Notice”) setting forth (i) each New Stock Offeree’s Pro Rata portion
of such New Stock or of such New Stock Units, as the case may be, (ii) the cash
consideration to be paid for each share of New Stock or each unit of New Stock
Units, as the case may be, and (iii) all other material terms of such New Stock
Offer. Each New Stock Offeree may elect to accept the New Stock Offer
delivering written notice of its acceptance to the Company within seven (7)
days after delivery of the New Stock Notice (the “Election Notice”). If
any New Stock Offeree has elected to purchase the New Stock or New Stock Units,
as applicable, the sale thereof shall be consummated on the proposed closing
date set forth in the New Stock Offer which shall be no sooner than the
fifteenth (15th) day following the giving of the New Stock Notice. In the event
any New Stock Offeree elects not to exercise its right pursuant to this Section
2.6, fails to timely give an Election Notice or fails to purchase the
securities allocated to it at the closing designated therefor by the Company,
such New Stock Offeree shall cease to have any rights hereunder with respect to
such New Stock Offer and no New Stock Offeree shall have the right to purchase
the securities offered to such New Stock Offeree. For purposes of determining
the Pro Rata portion of New Stock Units under this Section 2.6, only clause (i)
of the definition of Pro Rata shall be applicable. This Section 2.6 will
terminate automatically and be of no further force and effect upon the
consummation of an underwritten public offering registered under the Securities
Act of Common Stock.


 


ARTICLE
3


 


CORPORATE
GOVERNANCE


 


3.1          
Board of Directors of the Company.


 


(a)          
Election of
Directors. From
and after the date hereof, each Stockholder shall vote or cause to be voted all
shares of Common Stock and any other voting securities of the Company over
which such Stockholder has voting control, at any regular or special meeting of
stockholders called for the purpose of filling positions on the Board of
Directors of the Company (the “Board”), or execute a written consent in
lieu of such a meeting of stockholders for the purpose of filling positions on
the Board, and shall take all actions necessary, to ensure the election to the
Board of (i) any and all individuals designated by the OEP Stockholders (the “OEP
Nominees”), and (ii) for as long as GW and his Permitted Transferees own
the Shares owned by GW on the Effective Date (other than Shares sold by them in
accordance with Sections 2.4 and 2.5 hereof), one nominee of the GW
Stockholders which, subject to Section 3.3 below, shall be GW (the “GW
Nominee”); provided, that, in the event of a GW Nominee Vacancy,
subject to Section 3.3 below, there shall be one GW Nominee for as long as RD
and his Permitted Transferees own the Shares owned by RD on the Effective Date
(other than Shares sold by them in accordance with Section 2.4 and 2.5 hereof).
The OEP Nominees and the GW Nominee are referred to, collectively, as the “Nominees”
and, individually, as a “Nominee”.


 


(b)          
Replacements. If prior to his or her election to the
Board pursuant to Section 3.1(a), any OEP Nominee shall be unable or unwilling
to serve as a director, the OEP Stockholders that nominated such OEP Nominee
shall nominate a replacement who shall then be a Nominee for purposes of
Section 3.1(a).


 


3.2          
Removal.
If (a) the OEP Stockholders that designated a Nominee pursuant to Section 3.1
request, by written notice to the other Stockholders, that such OEP Nominee
elected as a director be removed (with or without cause) or (b) with respect to
the GW Nominee, GW and his Permitted Transferees shall cease to own the Shares
owned by GW on the Effective Date or, if there shall have occurred a GW Nominee
Vacancy (as hereinafter defined), RD and his Permitted Transferees shall cease
to own the Shares owned by RD on the Effective Date (in each case, other than
the Shares sold by them in accordance with Sections 2.4 and 2.5 hereof) and the
OEP Stockholders request by written notice to the


 


10












 


other Stockholders that the GW Nominee be removed
(with or without cause), such director shall be removed, and each Stockholder
hereby agrees to vote all shares of Common Stock owned by such Stockholder and
other securities over which such Stockholder has voting control to effect such
removal or to consent in writing to effect such removal upon such request and
the GW Nominee shall lose his right to serve as a director pursuant to Section
3.1(a) hereof.


 


3.3          
Vacancies. In the event that a vacancy is created on the Board at
any time by the death, disability, retirement, resignation or removal (with or
without cause) of an OEP Nominee, the OEP Stockholders who designated such OEP
Nominee may designate a new OEP Nominee to fill the vacancy. In the event that
a vacancy with respect to the GW Nominee is created on the Board at any time by
the death or disability of GW (a “GW Nominee Vacancy”) then the
resulting vacancy on the Board may be filled by having Kashif F. Sheikh serve
as the GW Nominee; provided, however, that if Mr. Sheikh ceases
to be the Executive Vice President of, or serve in an equivalent or more senior
position of, Oakmont Corporation or is unable to serve as the GW Nominee due to
death or disability then the resulting vacancy on the Board may be filled by a
representative designated by the RD Stockholders and approved by OEP, which
approval shall be granted or withheld by OEP in its sole discretion.


 


3.4          
Voting Agreement. Each Investor Stockholder agrees to cast all votes
to which such Investor Stockholder is entitled in respect of Shares, whether at
any annual or special meeting, by written consent or otherwise, in each case as
required by law, in such a manner as the holders of Shares representing a
majority of all shares of Common Stock on a Diluted Basis held in the aggregate
by all Investor Stockholders may determine. In order to effectuate the
provisions of this Section 3.4 and, in addition and not in lieu thereof, each
of the Investor Stockholders hereby grants to OEP an irrevocable proxy (which
proxy is coupled with an interest) to vote at any annual or special meeting of
stockholders or to take action by written consent or otherwise, all of the
Shares owned or held of record by each Investor Stockholder in accordance with
the provisions of this Section 3.4.


 


ARTICLE
4


 


CERTAIN
COVENANTS OF THE PARTIES


 


4.1          
Management Stockholders; Additional Stockholders. Unless otherwise required by the OEP
Stockholders, the parties hereto agree that as a condition precedent to the
initial issuance by the Company of Shares (a) to any employee of the Company or
its Subsidiaries or (b) any Person other than any such employee, any Investor
Stockholder or any Management Stockholder, the Company shall require such
employee or other Person to execute a Joinder Agreement and thereby enter into
and become a party to this Agreement. From and after such time, the term
“Management Stockholder” shall be deemed to include such employees referred to
in (a) above and the term “Additional Stockholder” shall be deemed to include
such other Person referred to in (b) above. Nothing contained herein nor the
ownership of any Shares shall confer upon any Management Stockholder the right
to employment or to remain in the employ of the Company or any of its
Subsidiaries. Notwithstanding the foregoing, to the extent approved by the OEP
Stockholders and specified in any Joinder Agreement (or amendment thereto)
pursuant to which any employee or other Person who is deemed to be a GW
Stockholder, an AB Stockholder, a RD Stockholder or a Management Stockholder or
Additional Stockholder may become a party hereto, the provisions of this
Agreement may be varied to be more or less restrictive with respect to any such
employee or other Person who is deemed to be a GW Stockholder, an AB
Stockholder, a RD Stockholder or a Management Stockholder or Additional
Stockholder; provided, however, that with respect to any such GW
Stockholder, AB Stockholder or RD Stockholder, the consent of such GW
Stockholder, AB Stockholder or RD Stockholder, respectively, shall be required
for any such variation.


 


11












 


4.2          
Purchaser Representative. If the Company enters into any negotiation or
transaction involving the issuance of securities of another party to the
Stockholders for which Rule 506 (or any similar rule then in effect)
promulgated under the Securities Act by the Commission may be available with
respect to such negotiation or transaction (including a merger, consolidation
or other reorganization), each GW Stockholder, AB Stockholder, RD Stockholder,
Management Stockholder and Additional Stockholder (if an individual) will, at
the request of the Company, appoint a purchaser representative (as such term is
defined in Rule 501 under the Securities Act) reasonably acceptable to the
Company. If any such GW Stockholder, AB Stockholder, RD Stockholder, Management
Stockholder or Additional Stockholder appoints the purchaser representative
designated by the Company, the Company will pay the fees of such purchaser
representative, but if any such GW Stockholder, AB Stockholder, RD Stockholder,
Management Stockholder or Additional Stockholder declines to appoint the
purchaser representative designated by the Company, such GW Stockholder, AB
Stockholder, RD Stockholder, Management Stockholder or Additional Stockholder
will appoint, at his own expense, another purchaser representative reasonably
acceptable to the Company.


 


4.3          
Holdback Obligations. Unless otherwise agreed to by the OEP Stockholders,
each Stockholder agrees that, in the case of any underwritten offering of
Shares of Common Stock, each holder of Shares of Common Stock agrees, if and to
the extent requested in good faith, in writing, by the managing underwriter or
underwriters administering such offering as promptly as practicable (but in any
event prior to the commencement of the seven-day period referred to below), not
to effect any public sale or distribution of Shares of Common Stock, or any
securities convertible, exchangeable or exercisable for or into Shares of
Common Stock, during the seven (7) days prior to, and the one hundred eighty
(180) day period beginning on, the effective date of any underwritten offering;
provided, that:


 


(a)          
the directors and
each holder of at least five percent (5%) of the equity securities of the
Company (determined on a Diluted Basis) enter into agreements that are no less
restrictive;


 


(b)          
the aggregate of the
period in which such dispositions of Shares of Common Stock are restricted
pursuant to this Section 4.3 shall not exceed one hundred eighty (180) days in
any twelve-month period; and


 


(c)          
this Section 4.3
shall be applicable only during the two (2) year period following the effective
date of the final prospectus distributed pursuant to the first time a
registration statement filed under the Securities Act with the Commission
respecting an offering, whether primary or secondary, of Common Stock (or
securities convertible, exercisable or exchangeable for or into Common Stock or
rights to acquire Common Stock or such securities), which is underwritten on a
firmly committed basis, is declared effective and the securities so registered
are issued and sold.


 


4.4          
Non-Compete. Each of GW, AB and RD will, as long as any GW Stockholder, AB
Stockholder or RD Stockholder owns Shares, and, in each case, for a period of
two (2) years from the date that all such Persons cease to own any Shares,
refrain from, either alone or in conjunction with any other Person, directly or
indirectly through its present or future Affiliates or otherwise, participating
or engaging in (other than through the ownership of 3% or less of any class of
securities registered under the Securities Exchange Act of 1934, as amended),
or otherwise lending financial assistance or otherwise assisting, providing
advice or acting as a consultant to any Person participating or engaged in, the
business of, directly or indirectly, providing products and services or advice
with respect to rail, railcar or transit systems, including, without
limitation, railcar and locomotive repair, trackwork, rail parts reconditioning
and sales, scrap metal recycling, railcar leasing and other rail-related
products or services provided by the Company or any of its Subsidiaries; provided,
however, that each of GW, AB and RD may make investments in commercial
or passenger railroad companies in which such person and his


 


12












 


respective Affiliates are and remain passive investors
and neither have the right to serve nor do actually serve on the board of
directors of any such company.


 


ARTICLE
5

MISCELLANEOUS


 


5.1          
Governing Law. The corporate laws of the State of Delaware will govern all questions
concerning the relative rights of the Company and its stockholders hereunder.
All other questions concerning the construction, validity and interpretation of
this Agreement shall be governed and construed in accordance with the domestic
laws of the State of New York, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of New York or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.


 


5.2          
Entire Agreement; Amendments. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and this Agreement may be
amended, modified or supplemented only by a written instrument duly executed by
the Company and the OEP Stockholders, except that (a) any amendment,
modification or supplement that materially, adversely and disproportionately
affects the GW Stockholders, the AB Stockholders, the RD Stockholders, the
Management Stockholders or the Additional Stockholders, as the case may be,
shall require the consent of the GW Stockholders, the AB Stockholders, the RD
Stockholders, the Management Stockholders or the Additional Stockholders,
respectively, and (b) any amendment, modification or supplement that
materially, adversely and disproportionately affects less than all of the GW
Stockholders, the AB Stockholders, the RD Stockholders, the Management
Stockholders or the Additional Stockholders, as the case may be, shall require
the consent of the GW Stockholders, the AB Stockholders, the RD Stockholders,
the Management Stockholders or the Additional Stockholders, so affected.


 


5.3          
Term.
This Agreement shall terminate upon the earliest to occur of (a) a Qualifying
Offering and (b) a Sale of the Company; provided, however, that
this Article 5 (other than Section 5.5) shall survive termination pursuant to
(a) or (b) above; and provided  further, that in the event of (i)
a Qualifying Offering, the obligations of each of the Stockholders under
Sections 4.3 and 4.4 shall not terminate until the end of the 180-day period
beginning on the effective date of the Qualifying Offering or (ii) a Sale of
the Company in which securities representing at least a majority of the voting
power of the Common Stock of the Company are acquired, the obligations of each
of the Stockholders under Section 4.4 shall not terminate as long as any GW
Stockholder, AB Stockholder or RD Stockholder (together with all other GW
Stockholders, AB Stockholders or RD Stockholders, respectively) owns 50% or
more of the shares of Common Stock or Preferred Stock (subject to any stock
split, stock dividend, reclassification, recapitalization or similar event with
respect to the Common Stock or Preferred Stock, as the case may be) owned by
GW, AB or RD, as the case may be, on the Effective Date.


 


5.4          
Certain Actions. Unless otherwise expressly provided herein, whenever any action is
required under this Agreement by:


 


(a)          
the OEP Stockholders,
it shall be by the affirmative vote of the holders representing more than fifty
percent (50%) of the total number of shares of Common Stock on a Diluted Basis
then held by the OEP Stockholders as a group, or as otherwise agreed in writing
by the OEP Stockholders as a group;


 


(b)          
the GW Stockholders,
it shall be by the affirmative vote of the holders representing more than fifty
percent (50%) of the total number of shares of Common Stock on a Diluted


 


13












 


Basis then held by the GW Stockholders as a group, or
as otherwise agreed in writing by the GW Stockholders as a group;


 


(c)          
the AB Stockholders,
it shall be by the affirmative vote of the holders representing more than fifty
percent (50%) of the total number of shares of Common Stock on a Diluted Basis
then held by the AB Stockholders as a group, or as otherwise agreed in writing
by the AB Stockholders as a group;


 


(d)          
the RD Stockholders,
it shall be by the affirmative vote of the holders representing more than fifty
percent (50%) of the total number of shares of Common Stock on a Diluted Basis
then held by the RD Stockholders as a group, or as otherwise agreed in writing
by the RD Stockholders as a group;


 


(e)          
the Management
Stockholders, it shall be by the affirmative vote of the holders representing
more than fifty percent (50%) of the total number of shares of Common Stock on
a Diluted Basis then held by the Management Stockholders as a group, or as
otherwise agreed in writing by the Management Stockholders as a group; or


 


(f)           
the Additional
Stockholders, it shall be by the affirmative vote of the holders representing
more than fifty percent (50%) of the total number of shares of Common Stock on
a Diluted Basis then held by the Additional Stockholders as a group, or as
otherwise agreed in writing by the Additional Stockholders as a group.


 


The Stockholders hereby agree, notwithstanding
anything to the contrary in any other agreement or at law or in equity, that
when any Stockholder takes any action under this Agreement or pursuant to the
Delaware General Corporation Law to give or withhold its consent in its
capacity as a Stockholder, such Stockholder shall have no duty (fiduciary or
other) to consider the interests of the Company or the other Stockholders, may
act exclusively in its own interest and shall have only the duty to act in good
faith; provided, however, that the foregoing shall in no way
affect the obligations of the parties hereto to comply with the provisions of
this Agreement.


 


5.5          
Inspection.
For so long as this Agreement shall remain in effect, this Agreement shall be
made available for inspection by any Stockholder at the principal executive
offices of the Company.


 


5.6          
Recapitalization, Exchanges, Etc., Affecting Shares. The provisions of this Agreement shall
apply, to the full extent set forth herein with respect to the Shares, to any
and all shares of the Company capital stock or any successor or assign of the
Company (whether by merger, consolidation, sale of assets, or otherwise,
including shares issued by a parent corporation in connection with a triangular
merger) which may be issued in respect of, in exchange for, or in substitution
of, any Shares and shall be appropriately adjusted for any stock dividends,
splits, reverse splits, combinations, reclassifications and the like occurring
after the date hereof.


 


5.7          
Waiver.
No waiver by any party of any term or condition of this Agreement, in one or
more instances, shall be valid unless in writing, and no such waiver shall be
deemed to be construed as a waiver of any subsequent breach or default of the
same or similar nature.


 


5.8          
Successors and Assigns. Except as otherwise expressly provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns (including, without limitation,
Transferees of Shares); provided, however, that (a) nothing
contained herein shall be construed as granting any GW Stockholder, AB
Stockholder, RD Stockholder, Management Stockholder or Additional Stockholder
the right to Transfer any Shares except in accordance


 


14












 


with this Agreement, (b) unless otherwise provided in
the terms of the Transfer, none of the provisions of this Agreement, other than
those set forth in Sections 2.1 and 2.2 to the extent those Sections require
compliance with the Securities Act, delivery of opinions of counsel and
placement of Securities Act (or state securities laws) legends or other
legends, shall apply to any Transfer of Shares (or to the Transferee thereof)
subsequent to a Transfer of those securities pursuant to a registered public
offering under the Securities Act made in accordance with the Securities Act,
and (c) notwithstanding any Transfer of Shares among any OEP Stockholder, GW
Stockholder, AB Stockholder, RD Stockholder, Management Stockholder or
Additional Stockholder, if permitted, any restrictions under this Agreement
that are applicable to the Transferor but not the Transferee shall not be
applicable to the Transferee or to the Shares in the hands of the Transferee
following any such Transfer.


 


5.9          
Remedies.
In the event of a breach by any party to this Agreement of its obligations
under this Agreement, any party injured by such breach, in addition to being
entitled to exercise all rights granted by law, including recovery of damages
and costs (including reasonable attorneys’ fees), will be entitled to specific
performance of its rights under this Agreement. The parties agree that the
provisions of this Agreement shall be specifically enforceable, it being agreed
by the parties that the remedy at law, including monetary damages, for breach
of any such provision will be inadequate compensation for any loss and that any
defense in any action for specific performance that a remedy at law would be
adequate is waived.


 


5.10        
Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(c) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (d) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.


 


5.11        
Headings.
The headings used in this Agreement have been inserted for convenience of
reference only and do not define or limit the provisions hereof.


 


5.12        
Further Assurances. Each party hereto shall cooperate and shall take
such further action and shall execute and deliver such further documents as may
be reasonably requested by any other party in order to carry out the provisions
and purposes of this Agreement.


 


5.13        
Gender.
Whenever the pronouns “he” or “his” are used herein they shall also be deemed
to mean “she” or “hers” or “it” or “its” whenever applicable. Words in the
singular shall be read and construed as though in the plural and words in the
plural shall be construed as though in the singular in all cases where they
would so apply.


 


5.14        
Counterparts. This Agreement may be executed in any number of counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same instrument.


 


5.15        
Notices.
All notices, requests and other communications hereunder must be in writing and
will be deemed to have been duly given only if delivered personally against
written receipt or by facsimile transmission or mailed by prepaid first class
mail, return receipt requested, or sent by overnight courier prepaid to the
parties at the following addresses or facsimile numbers:


 


15












 


	
  (a)

  	
  If to an OEP
  Stockholder, to:

  
	
   

  	
   

  
	
   

  	
  One Equity Partners LLC

  
	
   

  	
  One Bank One Plaza

  
	
   

  	
  Chicago, Illinois
  60670-0610

  
	
   

  	
  Facsimile:

  	
  (312) 732-7495

  
	
   

  	
  Attention:

  	
  Thomas J. Kichler

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  Morgan, Lewis &
  Bockius LLP

  
	
   

  	
  101 Park Avenue

  
	
   

  	
  New York, New York
  10178-0060

  
	
   

  	
  Facsimile:

  	
  (212) 309-6001

  
	
   

  	
  Attention:

  	
  Ira White, Esq.

  
	
   

  	
   

  
	
  (b)

  	
  If to any other
  Stockholder, to:

  
	
   

  	
   

  
	
   

  	
  The last known address
  of such Stockholder on the books and records of the Company;

  
	
   

  	
   

  
	
  (c)

  	
  If to the Company, to:

  
	
   

  	
   

  
	
   

  	
  Progress Rail Services
  Parent Corp.

  
	
   

  	
  c/o One Equity
  Partners LLC

  
	
   

  	
  One Bank One Plaza

  
	
   

  	
  Chicago, Illinois
  60670-0610

  
	
   

  	
  Facsimile:

  	
  (312) 732-7495

  
	
   

  	
  Attention:

  	
  Thomas J. Kichler

  
	
   

  	
   

  
	
   

  	
  with copies to:

  
	
   

  	
   

  
	
   

  	
  Morgan, Lewis &
  Bockius LLP

  
	
   

  	
  101 Park Avenue

  
	
   

  	
  New York, New York
  10178-0060

  
	
   

  	
  Facsimile:

  	
  (212) 309-6001

  
	
   

  	
  Attention:

  	
  Ira White, Esq.

  
	
   

  	
   

  
	
   

  	
  and

  
	
   

  	
   

  
	
   

  	
  the OEP Stockholders.

  



 


All such notices, requests and other communications
will (w) if delivered personally to the address as provided in this
Section 5.15 be deemed given upon delivery, (x) if delivered by facsimile
transmission to the facsimile number as provided in this Section 5.15 be deemed
given upon facsimile confirmation, and (y) if delivered by mail in the
manner described above to the address as provided in this Section 5.15 upon
receipt and (z) if delivered by overnight courier to the address as provided in
this Section 5.15, be deemed given upon receipt. Any party from time to time may
change its address, facsimile number or other information for the purpose of
notices to that party by giving notice specifying such change to the other
parties hereto.


 


5.16        
Consent to Jurisdiction and Service of Process.          EACH OF THE PARTIES HERETO CONSENTS TO
THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL


 


16












 


COURT LOCATED WITHIN THE STATE OF NEW YORK OR THE STATE OF DELAWARE AND
IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT
SHALL BE LITIGATED IN SUCH COURTS. EACH OF THE PARTIES HERETO ACCEPTS FOR
ITSELF AND IN CONNECTION WITH ITS RESPECTIVE PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES
ANY DEFENSE OF FORUM  NON  CONVENIENS, AND IRREVOCABLY AGREES
TO BE BOUND BY ANY FINAL AND NONAPPEALABLE JUDGMENT RENDERED THEREBY IN
CONNECTION WITH THIS AGREEMENT. EACH OF THE PARTIES HERETO FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF VIA OVERNIGHT
COURIER, TO SUCH PARTY AT THE ADDRESS SPECIFIED IN THIS AGREEMENT, SUCH SERVICE
TO BECOME EFFECTIVE FOURTEEN CALENDAR DAYS AFTER SUCH MAILING. NOTHING HEREIN
SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF EITHER PARTY HERETO TO SERVE
ANY SUCH LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER OR TO BRING ACTIONS,
SUITS OR PROCEEDINGS AGAINST THE OTHER PARTY HERETO IN SUCH OTHER
JURISDICTIONS, AND IN SUCH MANNER, AS MAY BE PERMITTED BY ANY APPLICABLE LAW.


 


[Signature Page to
Follow.]


 


17












 


IN WITNESS WHEREOF, the
parties hereto have executed and delivered this Agreement as of the date first
above written.


 


 


	
   

  	
  Company:

  
	
   

  	
   

  
	
   

  	
  PROGRESS RAIL SERVICES
  PARENT CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/
  William P. Ainsworth

  	
   

  
	
   

  	
   

  	
  Name:  William
  P. Ainsworth

  
	
   

  	
   

  	
  Title:  President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OEP:

  
	
   

  	
   

  
	
   

  	
  ONE EQUITY PARTNERS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/
  Thomas J. Kichler

  	
   

  
	
   

  	
   

  	
  Name:  Thomas
  J. Kichler

  
	
   

  	
   

  	
  Title:  Partner

  



 


[Signature Page to
Stockholders’ Agreement]


 












 


	
   

  	
  Other
  Stockholders:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
              /s/
  Gary L. Wilson

  	
   

  
	
   

  	
  Gary L. Wilson

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
              /s/
  Alfred D. Boyer

  	
   

  
	
   

  	
  Alfred D. Boyer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
              /s/
  Robert Day

  	
   

  
	
   

  	
  Robert Day

  



 


[Signature Page to
Stockholders’ Agreement]


 












 


Annex
I


 


	
  Stockholder

  	
   

  	
  Shares
  of Common Stock

  	
   

  	
  Shares
  of

  Series A Participating

  Preferred Stock

  	
   

  
	
  One Equity Partners LLC
  and its Permitted Transferees

  	
   

  	
  8,790,000

  	
  * 

  	
  1,111,112

  	
   

  
	
  Gary L. Wilson

  	
   

  	
  769,125

  	
   

  	
  97,222.2222

  	
   

  
	
  Alfred D. Boyer

  	
   

  	
  109,875

  	
   

  	
  13,888.8889

  	
   

  
	
  Robert Day

  	
   

  	
  1,758,000

  	
   

  	
  222,222.2222

  	
   

  
	
  Total

  	
   

  	
  11,427,000

  	
  * 

  	
  1,444,445.3333

  	
   

  



 






*Numbers shown for One
Equity Partners LLC and its Permitted Transferees and the total number of
shares of Common Stock outstanding reflect contemplated direct sales of shares
of Common Stock by One Equity Partners LLC to management and Lee M. Gardner. In
the event that contemplated direct sales to management and Mr. Gardner are not
effected, in whole or in part, the share numbers for OEP and Messrs. Wilson,
Boyer and Day will be appropriately readjusted.


 












 


Exhibit
A


 


Form
of Joinder Agreement


 


Progress Rail Services Parent Corp.


c/o One Equity Partners LLC


One Bank One Plaza


Chicago, Illinois 60670-0610


 


 


Attn:  Board of Directors


 


Gentlemen:


 


In consideration of the [transfer][issuance] to the
undersigned of
             
shares of Common Stock, par value $0.01 per share,] [Describe any other
security being transferred or issued] of Progress Rail Services Parent Corp., a
Delaware corporation (the “Company”), the undersigned [represents that it is a
Permitted Transferee of [Insert name of transferor] and]* agrees that, as of the
date written below, [he] [she] [it] shall become a party to that certain
Stockholders’ Agreement dated as of March 24, 2005, as such agreement may have
been or may be amended from time to time (the “Agreement”), among the Company
and the persons named therein, and [as a Permitted Transferee shall be fully
bound by, and subject to, all of the covenants, terms and conditions of the
Agreement that were applicable to the undersigned’s transferor,]* [shall be
fully bound by, and subject to, the provisions of the Agreement that are
applicable to — Describe and list exceptions, if applicable,]** as though an
original party thereto and shall be deemed a [GW Stockholder] [AB Stockholder]
[RD Stockholder] [Management Stockholder] [Additional Stockholder] [OEP Stockholder]
for purposes thereof.


 


	
   

  	
  TRANSFEREE:

  
	
   

  	
   

  
	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 






*             
Include if transferee
is a Permitted Transferee.


**           Describe.