exv4w7



 





Exhibit 4.7




 





RSC HOLDINGS INC.




AMENDED AND RESTATED

STOCKHOLDERS AGREEMENT




Dated as of May 29, 2007




 





 









 





Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE I
	 	GOVERNANCE AND MANAGEMENT OF THE COMPANY	 	 	2	 
	1.1
	 	Board of Directors/Committees	 	 	2	 
	1.2
	 	Director Fees and Expenses	 	 	4	 
	1.3
	 	Approvals	 	 	4	 
	1.4
	 	Certain Actions/Voting Proxy	 	 	5	 
	1.5
	 	Termination of Rights	 	 	5	 
	1.6
	 	Information/Access	 	 	6	 
	 
	 	 	 	 	 	 
	ARTICLE II
	 	TRANSFERS/CERTAIN COVENANTS	 	 	8	 
	2.1
	 	Transfer Restrictions	 	 	8	 
	2.2
	 	Tag-Along Rights	 	 	8	 
	2.3
	 	[Reserved.]	 	 	11	 
	2.4
	 	Legend	 	 	11	 
	 
	 	 	 	 	 	 
	ARTICLE III
	 	RESERVED	 	 	12	 
	 
	 	 	 	 	 	 
	ARTICLE IV
	 	REGISTRATION RIGHTS	 	 	12	 
	4.1
	 	Piggyback Registration Rights	 	 	12	 
	4.2
	 	Demand Registrations	 	 	14	 
	4.3
	 	Registration Procedures	 	 	16	 
	4.4
	 	Registration Expenses; Indemnification	 	 	20	 
	 
	 	 	 	 	 	 
	ARTICLE V
	 	DEFINITIONS	 	 	24	 
	5.1
	 	Certain Definitions	 	 	24	 
	5.2
	 	Terms Generally	 	 	31	 
	 
	 	 	 	 	 	 
	ARTICLE VI
	 	MISCELLANEOUS	 	 	31	 
	6.1
	 	Termination	 	 	31	 
	6.2
	 	Effective Time	 	 	31	 
	6.3
	 	Confidentiality	 	 	32	 
	6.4
	 	Compliance	 	 	32	 
	6.5
	 	Restrictions on Other Agreements; Conflicts	 	 	32	 
	6.6
	 	Further Assurances	 	 	33	 
	6.7
	 	No Recourse; No Stockholder Duties	 	 	33	 
	6.8
	 	Amendment; Waivers, etc	 	 	34	 
	6.9
	 	Assignment	 	 	34	 
	6.10
	 	Binding Effect	 	 	34	 
	6.11
	 	No Third Party Beneficiaries	 	 	34	 
	6.12
	 	Notices	 	 	34	 
	6.13
	 	Severability	 	 	36	 
	6.14
	 	Headings	 	 	36	 
	6.15
	 	Entire Agreement	 	 	36	 
	6.16
	 	Governing Law	 	 	36	 






i









 





Table of Contents

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	6.17
	 	Consent to Jurisdiction	 	 	37	 
	6.18
	 	Waiver of Jury Trial	 	 	37	 
	6.19
	 	Enforcement	 	 	37	 
	6.20
	 	Counterparts; Facsimile Signatures	 	 	37	 






ii









 





     AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, dated as of May 29, 2007, among (i) RSC
Holdings Inc., a Delaware corporation (the “Company”), (ii) each Stockholder listed
in the signature pages hereof and each other Stockholder that, immediately prior to the Effective
Time, is a party to the Original Agreement and (iii) any other Stockholder that may become
a party to this Agreement after the date and pursuant to the terms hereof. Capitalized terms used
herein without definition shall have the meanings set forth in Section 5.1.



W I T N E S S E T H:




     WHEREAS, pursuant to a Recapitalization Agreement, dated as of October 6, 2006 (the
“Recapitalization Agreement”), among Atlas Copco AB, a company organized under the laws of
Sweden, the Company, Atlas Copco Finance S.à.r.l., a company organized under the laws of Luxembourg
(“ACF”), RSC Acquisition LLC, a Delaware limited liability company (“Ripplewood
1”), RSC Acquisition II LLC, a Delaware limited liability company (“Ripplewood 2”),
OHCP II RSC, LLC, a Delaware limited liability company (“Oak Hill 1”), OHCMP II RSC, LLC, a
Delaware limited liability company (“Oak Hill 2”) and OHCP II RSC COI, LLC, a Delaware
limited liability company (“Oak Hill 3” and, together with Ripplewood 1, Ripplewood 2, Oak
Hill 1 and Oak Hill 2, the “Investors”, and each of them an “Investor”), the
Investors purchased 20,471 Shares, representing 85.47% of the total outstanding common stock of the
Company, and ACF retained 3,480 Shares, representing 14.53% of the total outstanding common stock
of the Company (such transaction, the “Acquisition”);



     WHEREAS, following the Closing, each Share was reclassified into 100 Shares and following such
reclassification, certain employees of the Company and its Subsidiaries, or trusts for the benefit
of such employees, purchased 26,366.30 Shares, representing approximately 1% of the total
outstanding common stock of the Company;



     WHEREAS, in connection with the Acquisition, the Company entered into a Stockholders
Agreement, dated as of November 27, 2006, with its stockholders as of that date (the “Original
Agreement”);



     WHEREAS, concurrently with the effectiveness of this Agreement, the Company has consummated an
initial Public Offering of its common stock (the “IPO”); and



     WHEREAS, the Principal Investors, acting pursuant to Section 6.8 of the Original Agreement,
desire to amend and restate the Original Agreement as provided herein to set forth the respective
rights and obligations of the parties to this Agreement following the IPO.



     NOW, THEREFORE, in consideration of the mutual agreements contained herein, the parties hereto
hereby agree as follows:



 









 





ARTICLE I

GOVERNANCE AND MANAGEMENT OF THE COMPANY





	1.1	 	Board of Directors/Committees.
	 
	(a)	 	Board Nominees.





          (i) Prior to a Controlled Company Event. Subject to Section 1.5 and any
rights of the holders of shares of any class or series of preferred stock of the Company to
elect additional members to the board of directors of the Company (the “Board”),
and prior to a Controlled Company Event, the Stockholders and the Company shall take all
Necessary Action to cause the Board to be comprised of up to thirteen directors:



          (A) four of whom shall be designated by Ripplewood (such persons, the “Ripplewood
Nominees”);



          (B) four of whom shall be designated by Oak Hill (such persons, the “Oak Hill
Nominees”, and collectively with the Ripplewood Nominees, the “Investor
Nominees”);



          (C) one of whom shall be Mark Cohen;



          (D) three of whom shall be Independent Directors, each of which shall be designated by
Majority Approval; and



          (E) unless otherwise agreed by Majority Approval, one of whom shall be the Chief
Executive Officer (the “CEO Nominee”).



          (ii) Following a Controlled Company Event. If, following a Controlled Company
Event and after giving effect to Section 1.5, the membership of the Board as designated in
accordance with Section 1.1(a)(i) would not comply with the requirements of Applicable Law
(after giving effect to applicable transition periods, if any), (A) the number of
Ripplewood Nominees and Oak Hill Nominees shall each be reduced by two (but in no event
reduced to less than one except as provided in Section 1.5), (B) each Principal
Investor shall cause two of its Investor Nominees to resign, and (C) the directors
remaining in office shall elect Independent Directors to fill each of the vacancies created
by such resignations. If, after giving effect to the foregoing, the membership of the
Board would still not comply with the requirements of Applicable Law (after giving effect
to applicable transition periods, if any), the Company and the Stockholders will take all
Necessary Action to cause the Company to comply with Applicable Law with respect to the
composition of the Board (which may include the election of additional Independent
Directors as members of the Board and Committees,



 









 






either as a result of an increase in the membership of the Board or the pro rata
reduction in the number of Investor Nominees and their resignation from the Board or
Committees, or both).



               (b) Classified Board. The certificate of incorporation and the by-laws of the Company
shall provide that the directors of the Company, subject to any rights of the holders of shares of
any class or series of preferred stock of the Company, shall be classified with respect to the time
for which they severally hold office into three classes, as nearly equal in number as possible.
One class’s (“Class I”) term will expire at the first annual meeting of the stockholders
following the date hereof, another class’s (“Class II”) term will expire at the second
annual meeting of the stockholders following the date hereof and another class’s (“Class
III”) term will expire at the third annual meeting of stockholders following the date hereof;
provided that the term of each director shall continue until the election and qualification
of a successor and be subject to such director’s earlier death, resignation or removal.
Thereafter, at each annual meeting of stockholders of the Corporation, subject to any rights of the
holders of shares of any class or series of preferred stock of the Company, the successors of the
directors whose term expires at that meeting shall be elected to hold office for a term expiring at
the annual meeting of stockholders held in the third year following the year of their election.
The Investor Nominees shall be allocated among the three classes of the Board as follows:
(i) one Ripplewood Nominee shall be allocated to each of Class I and Class II and two
Ripplewood Nominees shall be allocated to Class III; and (ii) one Oak Hill Nominee shall be
allocated to each of Class I and Class II and two Oak Hill Nominees shall be allocated to Class
III; provided that if the number of Investor Nominees is reduced pursuant to Section
1.1(a)(ii) or Section 1.5, upon the resignation of an affected Investor Nominee from a class of the
Board, the right set forth in Section 1.1(d) to designate successor Investor Nominees to such class
shall expire.



               (c) Committees. The by-laws of the Company shall provide for an executive and
governance committee, a compensation committee, an audit committee and such other committees as the
Board may determine (collectively, the “Committees”); provided that, following a
Controlled Company Event, the executive and governance committee shall be renamed the executive
committee and the Committees shall include a nominating and governance committee. Each of the
audit committee and the compensation committee shall consist of at least three directors and each
other Committee shall consist of at least two directors and, subject to Section 1.5, each Principal
Investor shall have the right to designate one member thereof from among the Investor Nominees and
Independent Directors; provided that (i) the membership of each Committee shall
meet the requirements of Applicable Law (after giving effect to applicable transition periods, if
any), and (ii) each Committee shall have such additional members as the Board may
determine, which determination, if made after a Controlled Company Event, shall be made on the
recommendation of the nominating and governance committee. Each



 









 




Committee shall have such powers and responsibilities as the Board may from time to time
authorize.




     (d) Removal and Replacement of Directors. If any Principal Investor provides written
notice to any other Stockholder of such Principal Investor’s determination that there is cause to
remove one or more Investor Nominee of such Principal Investor from the Board and that such
Principal Investor desires to remove such Investor Nominee(s), such Stockholder shall take all
Necessary Action reasonably requested by such Principal Investor to effect such removal. If a
vacancy is created on the Board or a Committee as a result of the death, disability, retirement,
resignation or removal of any Investor Nominee, then the Principal Investor that designated such
Investor Nominee shall have the right to designate such person’s replacement, subject to the final
sentence of Section 1.1(b).



     (e) RSC Board. The Company shall cause the board of directors of RSC Equipment
Rental, Inc., an Arizona corporation and wholly-owned subsidiary of the Company, to at all times be
comprised of the same persons that comprise the Board.



     1.2 Director Fees and Expenses.



     (a) Fees. The Company shall pay to the directors such fees as may be determined by
the Board. No director who is also an employee of the Company or any Company Subsidiary shall be
paid any fee for serving as a director or member of any Committee.



     (b) Expenses. The Company shall cause each non-employee director serving on the
Board, any Committees or any Company Subsidiary board to be reimbursed for all reasonable
out-of-pocket costs and expenses incurred by him or her in connection with such service, including
reasonable travel, lodging and meal expenses.



     1.3 Approvals.



     (a) General. Except as required by Applicable Law, all actions requiring the approval
of the Board shall require the approval of a majority of the directors present at any duly convened
Board meeting or by unanimous written consent of the directors without a meeting, in each case in
accordance with the provisions of the Delaware General Corporation Law and the by-laws of the
Company.



     (b) Quorum/Notice. A quorum for meetings of the Board shall consist of a majority of
the total authorized membership of the Board; provided that, prior to a Controlled Company
Event, such majority includes at least one Investor Nominee of each of the Principal Investors
entitled to designate an Investor Nominee. If a quorum is not achieved at any duly called meeting,
such meeting may be postponed to a time no earlier than 48 hours after written notice of such
postponement has been given to the directors,



 









 




and, at any such postponed meeting, a quorum shall consist of a majority of the total
authorized membership of the Board. Meetings of the Board may be called by the Chairman of the
Board or by any other director at any time; provided that at least 48 hours’ written notice
of such meeting has been provided to the directors or notice thereof has been waived by each
director.




     1.4 Certain Actions/Voting Proxy.



     (a) Each Stockholder shall take all Necessary Action to cause the election, removal and
replacement of directors and members of Committees in the manner contemplated in, and otherwise
give the fullest effect possible to the provisions of this Article I.



     (b) [Reserved.]



     (c) Each Stockholder (other than the Principal Investors) (i) that is a Permitted
Transferee of a Principal Investor hereby irrevocably grants to and appoints the Principal Investor
that is an Affiliate of such Stockholder and (ii) that is not a Person described in clause
(i) hereby irrevocably grants to and appoints the Principal Investors collectively (to act by
unanimous consent) such Stockholder’s proxy and attorney-in-fact (with full power of substitution),
for and in the name, place and stead of such Stockholder, to vote or act by written consent with
respect to such Stockholder’s Voting Securities, and to grant a consent, proxy or approval in
respect of such Voting Securities, in the event that such Stockholder fails at any time to vote or
act by written consent with respect to any of its Voting Securities in the manner agreed by such
Stockholder in this Agreement, in each case in accordance with such Stockholder’s agreements
contained in this Section 1.4 and any other provision of this Agreement. Each Stockholder (other
than the Principal Investors) hereby affirms that the irrevocable proxy set forth in this Section
1.4(c) will be valid for the term of this Agreement and is given to secure the performance of the
obligations of such Stockholder under this Agreement. Each such Stockholder hereby further affirms
that each proxy hereby granted shall be irrevocable and shall be deemed coupled with an interest
and shall extend for the term of this Agreement, or, if earlier, until the last date permitted by
Applicable Law. For the avoidance of doubt, except as expressly contemplated by this Section 1.4,
none of the Stockholders has granted a proxy to any Person to exercise the rights of any such
Stockholder under this Agreement.



     1.5 Termination of Rights. (a) Notwithstanding anything to the contrary in this
Article I, if, at any time, any Principal Investor, together with members of its Principal Investor
Group, shall cease to own a number of Shares equal to at least:




     (i) 35% of the Shares owned by such Principal Investor and members of its Principal
Investor Group on the Closing Date (its “Original Shares”), (A) the number
of directors such Principal Investor shall have the right to nominate pursuant to Section
1.1(a) shall be reduced by three, (B) such Principal Investor



 









 






shall cause three of its Investor Nominees to resign, and (C) the directors
remaining in office shall decrease the size of the Board to eliminate such vacancies; and




     (ii) 10% of its Original Shares, (A) such Principal Investor shall cease to
have the right to designate any directors pursuant to Section 1.1(a) or any right to
designate members of Committees pursuant to Section 1.1(c), (B) such Principal
Investor shall cause its Investor Nominees and Committee designees to resign, and
(C) the directors remaining in office shall decrease the size of the Board to
eliminate such vacancy.



     (b) Notwithstanding anything to the contrary in this Article I, (i) if, at any time,
(A) ACF shall cease to own at least 7.5% of the total Shares outstanding or (B)
Mark Cohen shall be or become a member of a Competitor, ACF shall cause Mark Cohen to resign as a
member of the Board, and (ii) upon the expiration of Mark Cohen’s first term as a member of
the Board or, if earlier, upon the resignation of Mark Cohen as a member of the Board pursuant to
clause (i) of this Section 1.5(b) or otherwise or his earlier death or removal for cause from the
Board, the directors remaining in office shall decrease the size of the Board to eliminate such
vacancy.



     1.6 Information/Access.



     (a) Information. The Company shall provide each Stockholder or its designated
representative with:




     (i) promptly upon completion after the end of each fiscal quarter of the Company for
the first three fiscal quarters of a fiscal year, the consolidated balance sheet of the
Company and its Subsidiaries as at the end of such quarter and the consolidated statements
of income, cash flows and changes in stockholders’ equity for such quarter and the portion
of the fiscal year then ended of the Company and its Subsidiaries;




     (ii) promptly upon completion after the end of each fiscal year of the Company, the
consolidated balance sheet of the Company and its Subsidiaries as at the end of each such
fiscal year and the consolidated statements of income, cash flows and changes in
stockholders’ equity for such year of the Company and its Subsidiaries, accompanied by the
report of independent certified public accountants of recognized national standing; and




     (iii) to the extent the Company or any of its Subsidiaries is required by Applicable
Law or pursuant to the terms of any outstanding indebtedness of the Company to prepare such
reports, any annual reports, quarterly reports and other periodic reports (without
exhibits) pursuant to Section 13 or 15(d) of the



 









 






Exchange Act, actually prepared by the Company or such Subsidiary promptly after
filing.



     (b) Access. The Company shall, and shall cause its Subsidiaries, officers, directors
and employees to, (i) afford the officers, employees, auditors and other agents of each
Stockholder that is a member of a Principal Investor Group, for so long as such Stockholder is,
together with the other members of its Principal Investor Group and such Principal Investor Group’s
Permitted Transferees, the holder of an aggregate amount of Shares that have an aggregate Fair
Market Value in excess of $100 million, during normal business hours and upon reasonable notice
reasonable access at all reasonable times to its officers, employees, auditors, properties,
offices, plants and other facilities and to all books and records, and (ii) afford such
Stockholder the opportunity to consult with its officers from time to time regarding the Company’s
and its Subsidiaries’ affairs, finances and accounts as each such Stockholder may reasonably
request upon reasonable notice.



     (c) Additional Information. Each of the Stockholders agrees that, from the date of
this Agreement and for so long as it shall own any Equity Securities, it will furnish the Company
such necessary information and reasonable assistance as the Company may reasonably request in
connection with the (i) consummation of the transactions contemplated by this Agreement and
(ii) the preparation and filing of any reports, filings, applications, consents or
authorizations with any Regulatory Entity under any Applicable Law. Each Stockholder proposing to
make a Transfer pursuant to Article II and the Company shall provide the other with any information
reasonably requested in order for each of them to determine whether the proposed Transfer would be
a Prohibited Transaction.



     (d) Corporate Opportunities. Except as otherwise provided in the second sentence of
this Section 1.6(d), (i) neither Principal Investor, nor ACF, nor any stockholder, member,
manager, partner or Affiliate of such Principal Investor or ACF, or their respective officers,
directors, employees or agents (any of the foregoing, a “Stockholder Group Member”) shall
have any duty to communicate or present an investment or business opportunity or prospective
economic advantage to the Company or any of its Subsidiaries in which the Company or one of its
Subsidiaries may, but for the provisions of this Section 1.6(d), have an interest or expectancy
(“Corporate Opportunity”), and (ii) neither Principal Investor, nor ACF, nor any
Stockholder Group Member (even if also an officer or director of the Company) will be deemed to
have breached any fiduciary or other duty or obligation to the Company by reason of the fact that
any such Person pursues or acquires a Corporate Opportunity for itself or its Affiliates or
directs, sells, assigns or transfers such Corporate Opportunity to another Person or does not
communicate information regarding such Corporate Opportunity to the Company. The Company, on
behalf of itself and its Subsidiaries, renounces any interest in a Corporate Opportunity and any
expectancy that a Corporate Opportunity will



 









 




be offered to the Company; provided that the Company does not renounce any interest or
expectancy it may have in any Corporate Opportunity that is offered to a director of the Company
whether or not such individual is also a director or officer of a Stockholder, if such opportunity
is expressly and demonstratively offered to such Person in his or her capacity as a director of the
Company and the Stockholders recognize that the Company reserves such rights.




ARTICLE II

TRANSFERS/CERTAIN COVENANTS




     2.1 Transfer Restrictions.



     (a) [Reserved.]



     (b) Notwithstanding anything to the contrary in this Agreement, no Stockholder shall Transfer
any Equity Securities (whether or not the proposed Transferee is a Permitted Transferee or such
Transfer would otherwise be permitted by Section 2.1(a)) (i) to any Competitor or
(ii) if any such Transfer would constitute a Prohibited Transaction, unless, in any such
case, such Transfer is approved by the Board.



     (c) Any Transferee (including any Permitted Transferee) that after the date of this Agreement
acquires Equity Securities, other than in connection with a Public Offering or brokers transactions
(within the meaning of Section 4(4) of the Securities Act) pursuant to Rule 144, shall, as a
condition precedent to the Transfer of such Equity Securities to such Transferee, (i)
become a party to this Agreement by completing and executing a signature page hereto (including the
address of such party), (ii) execute all such other agreements or documents as may
reasonably be requested by the Company (which may include such representations and warranties made
by the Transferee to the Company as shall be reasonably requested by the Company), (iii)
ensure with the Transferring Stockholders that any merger control or other regulatory
authorizations needed in connection with such Transfer are duly obtained, and (iv) deliver
such signature page and, if applicable, other agreements and documents to the Company at its
address specified in Section 6.12. Such Person shall, upon its satisfaction of such conditions and
acquisition of Equity Securities, be a Stockholder for all purposes of this Agreement.



     (d) Any Transfer or attempted Transfer of Equity Securities in violation of any provision of
this Agreement shall be void.



     2.2 Tag-Along Rights.



     (a) In the event of a proposed Transfer of Shares by a Stockholder (a “Transferring
Stockholder”) other than (y) to a Permitted Transferee or (z) in connection
with a Public Offering or brokers transactions (within the meaning of Section 4(4) of the



 









 




Securities Act) pursuant to Rule 144, each Stockholder (other than the Transferring
Stockholder) shall have the right to participate on the same terms and conditions and for the same
per Share consideration as the Transferring Stockholder in the Transfer in the manner set forth in
this Section 2.2. Prior to any such Transfer, the Transferring Stockholder shall deliver to the
Company prompt written notice (the “Transfer Notice”), which the Company will forward to
the Stockholders (other than the Transferring Stockholder, the “Tag-Along Participants”)
within 5 days of receipt thereof, which notice shall state (i) the name of the proposed
Transferee, (ii) the number of Shares proposed to be Transferred (the “Transferred
Securities”) and the percentage (the “Tag Percentage”) that such number of Shares
constitute of the total number of Shares owned by such Transferring Stockholder, (iii) the
proposed purchase price therefore, including a description of any non-cash consideration
sufficiently detailed to permit the determination of the Fair Market Value thereof, and
(iv) the other material terms and conditions of the proposed Transfer, including the
proposed Transfer date (which date may not be less than 35 days after delivery to the Tag-Along
Participants of the Transfer Notice). Such notice shall be accompanied by a written offer from the
proposed Transferee to purchase the Transferred Securities, which offer may be conditioned upon the
consummation of the sale by the Transferring Stockholder, or the most recent drafts of the purchase
and sale documentation between the Transferring Stockholder and the Transferee which shall make
provision for the participation of the Tag-Along Participants in such sale consistent with this
Section 2.2.




     (b) Each Tag-Along Participant may elect to participate in the proposed Transfer to the
proposed Transferee identified in the Transfer Notice by giving written notice to the Company and
to the Transferring Stockholder within the 15 day period after the delivery of the Transfer Notice
to such Tag-Along Participant, which notice shall state that such Tag-Along Participant elects to
exercise its tag-along rights under this Section 2.2 and shall state the maximum number of shares
sought to be Transferred (which number may not exceed the product of (i) all such Shares
owned by such Tag-Along Participant plus the number of Shares owned by any Affiliate Tag-Along
Assignor of such Tag-Along Participant, multiplied by (ii) the Tag Percentage). As used in
this Agreement, the term “Affiliate Tag-Along Assignor” with respect to any Stockholder
shall mean an Affiliate of such Stockholder or, in the case of any member of a Principal Investor
Group, any other member of such Principal Investor Group that, in each case, shall have waived, by
means of written notice to the Company and the Transferring Stockholder, its tag-along rights
pursuant to this Section 2.2 with respect to the applicable Transfer in favor of such Stockholder.
Each Tag-Along Participant shall be deemed to have waived its right of tag-along with respect to
the Transferred Securities hereunder if it fails to give notice within the prescribed time period.
The proposed Transferee of Transferred Securities will not be obligated to purchase a number of
Shares exceeding that set forth in the Transfer Notice, and in the event such Transferee elects to
purchase less than all of the additional Shares sought to be Transferred by the Tag-Along
Participants, the number of Shares to be Transferred by the Transferring Stockholder and



 









 




each such Tag-Along Participant shall be reduced so that each such Stockholder is entitled to
sell its Pro Rata Portion of the number of Shares the proposed Transferee elects to purchase (which
in no event may be less than the number of Transferred Securities set forth in the Transfer
Notice).




     (c) Each Tag-Along Participant, if it is exercising its tag-along rights hereunder, shall
deliver to the Transferring Stockholder at the closing of the Transfer of the Transferring
Stockholder’s Transferred Securities to the Transferee certificates representing the Transferred
Securities to be Transferred by such holder, duly endorsed for transfer or accompanied by stock
powers duly executed, in either case executed in blank or in favor of the applicable purchaser
against payment of the aggregate purchase price therefor by wire transfer of immediately available
funds and/or any applicable non-cash consideration. Each Stockholder participating in a sale
pursuant to this Section 2.2 shall receive consideration in the same form and per share amount
after deduction of such Stockholder’s proportionate share of the related expenses. Each
Stockholder participating in a sale pursuant to this Section 2.2 shall agree to make or agree to
the same customary representations, covenants, indemnities and agreements as the Transferring
Stockholder so long as they are made severally and not jointly and the liabilities thereunder are
borne on a pro rata basis based on the consideration to be received by each Stockholder;
provided, that any general indemnity given by the Transferring Stockholder, applicable to
liabilities not specific to the Transferring Stockholder, to the Transferee in connection with such
sale shall be apportioned among the Stockholders participating in a sale pursuant to this Section
2.2 according to the consideration received by each such Stockholder and shall not exceed such
Stockholder’s net proceeds from the sale; provided, further, that any
representation relating specifically to a Stockholder and/or its ownership of the Equity Securities
to be Transferred shall be made only by that Stockholder. The fees and expenses incurred in
connection with a sale under this Section 2.2 and for the benefit of all Stockholders (it being
understood that costs incurred by or on behalf of a Stockholder for his, her or its sole benefit
will not be considered to be for the benefit of all Stockholders), to the extent not paid or
reimbursed by the Company or the Transferee or acquiring Person, shall be shared by all the
Stockholders on a pro rata basis, based on the consideration received by each Stockholder in
respect of its Equity Securities to be Transferred; provided that no Stockholder shall be
obligated to make any out-of-pocket expenditure in connection with such fees and expenses prior to
the consummation of the transaction consummated pursuant to this Section 2.2 (excluding de minimis
expenditures). The proposed Transfer date may be extended beyond the date described in the
Transfer Notice to the extent necessary to obtain required approvals of Regulatory Entities and
other required approvals and the Company and the Stockholders shall use their respective
commercially reasonable efforts to obtain such approvals.



     (d) If the Transferring Stockholder sells or otherwise Transfers to the Transferee any of its
Shares in breach of this Section 2.2, then each Tag-Along



 









 




Participant shall have the right to sell to each Transferring Stockholder, and each
Transferring Stockholder undertakes to purchase from each Tag-Along Participant, the number of
Shares that such Tag-Along Participant would have had the right to sell to the Transferee pursuant
to this Section 2.2, for a per Share amount and form of consideration and upon the terms and
conditions on which the Transferee bought such Shares from the Transferring Stockholder, but
without any indemnity being granted by any Tag-Along Participant to the Transferring Stockholder;
provided that nothing contained in this Section 2.2(d) shall preclude any Stockholder from
seeking alternative remedies against any such Transferring Stockholder as a result of its breach of
this Section 2.2.




     2.3 [Reserved.]



     2.4 Legend.



     (a) All certificates representing the Equity Securities held by each Stockholder shall bear a
legend substantially in the following form:




“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
STOCKHOLDERS AGREEMENT (A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY). NO TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED
BY THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT AND (A) PURSUANT TO A
REGISTRATION STATEMENT EFFECTIVE UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION
THEREUNDER. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS
CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SUCH
STOCKHOLDERS AGREEMENT.”



     (b) Upon the permitted sale of any Equity Securities pursuant to (i) an effective
registration statement under the Securities Act or pursuant to Rule 144 or (ii) another
exemption from registration under the Securities Act or upon the termination of this Agreement, the
certificates representing such Equity Securities shall be replaced, at the expense of the Company,
with certificates or instruments not bearing the legends required by this Section 2.4;
provided that the Company may condition such replacement of certificates under clause (ii)
upon the receipt of an opinion of securities counsel reasonably satisfactory to the Company.



 









 





ARTICLE III

RESERVED




ARTICLE IV

REGISTRATION RIGHTS




     4.1 Piggyback Registration Rights.



     (a) If the Company at any time proposes to register any shares of Common Stock under the
Securities Act, whether or not for sale for its own account (other than (i) in connection
with a Demand Registration under Section 4.2 in which all Stockholders have the “piggyback” rights
contemplated in Section 4.2(a)(ii), (ii) relating solely to employee benefit plans or
(iii) relating solely to the sale of debt or convertible debt instruments) and the
registration form to be filed may also be used for the registration of Registrable Securities, the
Company shall promptly notify the Stockholders of its intention to effect such registration. Upon
the receipt of a written request of any Stockholder made within 20 days after such notice (which
request shall specify the Registrable Securities intended to be disposed of by such Stockholder),
the Company will, subject to the other provisions of this Section 4.1, include in such registration
all Registrable Securities with respect to which the Company has received a written request for
inclusion (a “Piggyback Registration”). Each such request shall also contain an
undertaking from the applicable Stockholder to provide all such information and material and to
take all actions as may be reasonably required by the Company in order to permit the Company to
comply with all applicable federal and state securities laws.



     (b) Underwritten Registration. If the registration referred to in Section 4.1(a) is
proposed to be underwritten, the Company will so advise the Stockholders as a part of the written
notice given pursuant to Section 4.1(a). In such event, the right of any Stockholder to
registration pursuant to this Section 4.1 will be conditioned upon such Stockholder’s participation
in such underwriting and the inclusion of such Stockholder’s Registrable Securities in the
underwriting, and each such Stockholder will (together with the Company and the other Stockholders
distributing their securities through such underwriting) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such underwriting by the Company.
If any Stockholder disapproves of the terms of the underwriting, such Stockholder may elect to
withdraw therefrom by written notice to the Company, the managing underwriter and the other
Stockholders.



     (c) Piggyback Registration Expenses. The Company will pay all Registration Expenses
in connection with any Piggyback Registration, whether or not any registration or prospectus
becomes effective or final.



     (d) Priority on Primary Registrations. If a Piggyback Registration relates to an
underwritten primary offering on behalf of the Company, and the managing



 









 




underwriters advise the Company that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold without adversely affecting the
marketability of such offering, the Company will include in such registration or prospectus only
such number of securities that in the opinion of such underwriters can be sold without adversely
affecting the marketability of the offering, which securities will be so included in the following
order of priority: (i) first, the securities the Company proposes to sell,
(ii) second, the Registrable Securities requested to be included in such
registration, pro rata among the Stockholders of such Registrable Securities on the basis of the
number of Registrable Securities so requested to be included therein owned by each such
Stockholder, and (iii) third, other securities requested to be included in such
registration.




     (e) Priority on Secondary Registrations. If a Piggyback Registration relates to an
underwritten secondary registration on behalf of other holders of the Company’s securities other
than a registration pursuant to Section 4.2, and the managing underwriters advise the Company that
in their opinion the number of securities requested to be included in such registration exceeds the
number which can be sold without adversely affecting the marketability of the offering, the Company
will include in such registration only such number of securities that in the opinion of such
underwriters can be sold without adversely affecting the marketability of the offering, which
securities will be so included in the following order of priority: (i) first, the
securities requested to be included therein by the holders requesting such registration and the
Registrable Securities requested to be included in such registration, pro rata among the holders of
such securities and Registrable Securities on the basis of the number of securities so requested to
be included therein owned by each such holder, and (ii) second, other securities
requested to be included in such registration.



     (f) Notwithstanding the foregoing, if at any time after giving written notice to the
Stockholders of its intention to register any shares of Common Stock pursuant to subsection (a) of
this Section 4.1 and prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to register such Securities,
the Company may, at its election, give written notice of such determination to each Stockholder and
thereupon shall be relieved of its obligation to register Registrable Securities as part of such
terminated registration (but not from its obligation to pay expenses in connection therewith as
provided above). If a registration pursuant to this Section 4.1 involves an underwritten public
offering and a Stockholder requests to be included in such registration, such Stockholder may
elect, in writing prior to the effective date of the registration statement filed in connection
with such registration, not to participate in such registration.



     (g) Each Stockholder agrees not to sell or offer for public sale or distribution, including
pursuant to Rule 144, any of such Stockholder’s Common Stock within 15 days prior to or 90 days
after the effective date of any registration (except as part of such



 









 




registration) with respect to which piggyback registration rights are available pursuant to
this Section 4.1.




     4.2 Demand Registrations.



     (a) Request for Registration. At any time and from time to time, any of the Principal
Investors and ACF, so long as such Person holds at least 5% of the total Shares outstanding at such
time (each an “Initiating Holder”) may request in writing that the Company effect pursuant
to this Section 4.2 the registration (a “Demand Registration”) of all or any part of such
Initiating Holders’ Registrable Securities under the Securities Act, which request shall specify
the Registrable Securities so requested to be registered, the proposed amounts thereof, and the
intended method of disposition by the Initiating Holders. Promptly after its receipt of such
request, the Company shall give written notice of such requested registration to all Stockholders,
and thereupon the Company will use its best efforts to effect the registration under the Securities
Act of:




     (i) the Registrable Securities that the Company has been so requested to register, for
disposition in accordance with the intended method of disposition stated in such request,
and




     (ii) all other Registrable Securities owned by Stockholders, the holders of which
shall have made a written request to the Company for registration thereof (which request
shall specify such Registrable Securities and the proposed amounts thereof) within 30 days
after the receipt of such written notice from the Company.



     (b) Limitations on Registrations. The registration rights granted to Initiating
Holders pursuant to this Section 4.2 are subject to the following limitations:




     (i) the Initiating Holders shall determine the method of distribution of the
Securities to be registered in a Demand Registration and if an underwritten offering, shall
select the managing underwriter of such offering. If the offering is underwritten, the
right of any Stockholder to registration pursuant to this Section 4.2 will be conditioned
upon such Stockholder’s participation in such underwriting and the inclusion of such
Stockholder’s Registrable Securities in the underwriting (unless otherwise agreed by the
Initiating Holders), and each such Stockholder will (together with the Company and the
other Stockholder distributing their Securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters selected for
such underwriting. If any Stockholder disapproves of the terms of the underwriting, such
Stockholder may elect to withdraw therefrom by written notice to the Company, the managing
underwriter and the Initiating Holders;



 









 






     (ii) the Company shall not be obligated to file a registration statement under this
Section 4.2 unless (i) the total number of shares of Registrable Securities
requested to be included in such offering by the Initiating Holders and all other
securities holders who have requested to participate in such offering equals or exceeds
2.5% of the number of shares of Common Stock outstanding on a fully diluted basis or
(ii) the aggregate gross offering price of such offering is at least $250,000,000;
and




     (iii) the Company shall be entitled to postpone for a reasonable time not exceeding
180 days at any one time, and not to exceed 360 days in any 720-day period, the filing of
any registration statement under this Section 4.2 if, at the time it receives a request for
a Demand Registration pursuant thereto, the Board shall determine in good faith that
(A) such offering will interfere with a pending financing, merger, sale of assets,
recapitalization or other similar corporation action which the Company is actively pursuing
and is material to the business of the Company or (B) the contemplated sale of
Shares pursuant to such registration statement would have a negative impact on the market
for the Common Stock.



     (c) Short-Form Registrations. The Company will use its commercially reasonable
efforts to qualify for registration on Form S-3 or any comparable or successor form or forms or any
similar short-form registration (“Short-Form Registrations”), and to that end the Company
will register (whether or not required by law to do so) the Common Stock under the Exchange Act in
accordance with the provisions of that Act following the effective date of the first registration
of any securities of the Company on Form S-1 or any comparable or successor form or forms. The
Principal Investors and ACF will be entitled to request at any time and from time to time an
unlimited number of Short-Form Registrations, provided that the Company will not be
obligated to effect any registration pursuant to Sections 4.2(a) and 4.2(c) more than once in any
one year. Promptly after its receipt of any request for a Short-Form Registration, the Company
will, if eligible for a Short-Form Registration, give written notice of such request to all other
Stockholders, and will use its best efforts to register, in accordance with the provisions of this
Agreement, all Registrable Securities that any Stockholder has requested in writing to be
registered by no later than the 15th day after the date of such notice. The Company will pay all
Registration Expenses incurred in connection with any Short-Form Registration.



     (d) Priority on Demand Registrations. If the managing underwriter advises the Company
that in its opinion the number of Registrable Securities (and, if permitted hereunder, other
securities requested to be included in such offering) exceeds the number of securities that can be
sold in such offering without adversely affecting the marketability of the offering, the Company
will include in such offering only such number of securities that in the opinion of such
underwriters can be sold without adversely affecting the marketability of the offering, which
securities will be so included in the following order of priority: (i) first, Registrable
Securities, pro rata among the



 









 




respective holders thereof on the basis of the aggregate number of Registrable Securities
owned by each such holder, and (ii) second, any other securities of the Company that have
been requested to be so included.




     (e) Each Stockholder agrees not to sell or offer for public sale or distribution including,
pursuant to Rule 144, any of such Stockholder’s Common Stock within 15 days prior to or 90 days
after the effective date of any Demand Registration (except as part of such registration).



     (f) The Company agrees not to effect any sale or distribution of any of its equity securities
or of any security convertible into or exchangeable or exercisable for any equity security of the
Company (other than such sale or distribution of such securities in connection with any merger or
consolidation by the Company or any subsidiary of the Company or the acquisition by the Company or
a subsidiary of the Company of the capital stock or substantially all the assets of any other
Person or in connection with an employee stock ownership or other benefit plan) during the 15 days
prior to, and during the 90 day period which begins on, the effective date of a registration
statement filed in connection with a Demand Registration or a Piggyback Registration (except as
part of any such registration).



     4.3 Registration Procedures. If and whenever the Company is required to use its best
efforts to effect the registration of any Registrable Securities under the Securities Act as
provided in this Agreement, the Company will promptly and expeditiously:



     (a) prepare and file with the Securities and Exchange Commission (the “Commission”) a
Registration Statement with respect to such Registrable Securities, make all required filings with
the NASD, and use its best efforts to cause such Registration Statement to become effective;



     (b) prepare and file with the Commission such amendments and supplements to such Registration
Statement and the prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the Securities Act with
respect to the disposition of all Securities covered by such registration statement until such time
as all of such Securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration statement, but in no
event for a period of more than six months after such registration statement becomes effective;



     (c) at least five business days before filing with the Commission, furnish to counsel (if any)
to the selling Stockholders such registration copies of all documents proposed to be filed with the
Commission in connection with such registration, which documents will be subject to the review of
such counsel;



 









 





     (d) furnish to each seller of Securities such number of conformed copies of such registration
statement and of each amendment and supplement thereto (in each case including all exhibits and
other documents filed therewith, except that the Company shall not be obligated to furnish any
seller of Securities with more than two copies of such exhibits), such number of copies of the
prospectus comprised in such registration statement (including each preliminary prospectus and any
summary prospectus), in conformity with the requirements of the Securities Act, and such other
documents, as such seller may reasonably request in order to facilitate the disposition of the
Securities owned by such seller;



     (e) use its best efforts to register or qualify all Securities covered by such registration
statement under the Securities or blue sky laws of such jurisdictions as each seller shall request,
and do any and all other acts and things which may be necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Securities owned by such seller, except
that the Company shall not for any such purpose be required to qualify generally to do business as
a foreign corporation in any jurisdiction wherein it is not so qualified, or to consent to general
service of process in any such jurisdiction;



     (f) in connection with an underwritten offering only, use its best efforts to furnish to each
seller copies of




     (i) an opinion of counsel for the Company, dated the effective date of the
registration statement, and




     (ii) a “comfort” letter signed by the independent public accountants who have
certified the Company’s financial statements included in the registration statement,



each covering substantially the same matters with respect to the registration statement (and the
prospectus included therein) and, in the case of such accountants’ letter, with respect to events
subsequent to the date of such financial statements, as are customarily covered in opinions of
issuer’s counsel and in accountant’s letters delivered to the underwriters in underwritten public
offerings of securities;



     (g) notify each seller of any Securities covered by such registration statement, at any time
when a prospectus relating thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing, and at the request of any such seller prepare and
furnish to such seller a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the purchasers of such
Securities, such prospectus shall not



 









 




include an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the light of the
circumstances then existing;




     (h) otherwise use its best efforts to comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least 12 months, but not more than 18 months,
beginning with the first month after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;



     (i) prepare and file with the Commission such amendments and supplements to such Registration
Statement as may be necessary to keep such Registration Statement effective for a period of either
(i) not less than six months or, if such Registration Statement relates to an underwritten
offering, such longer period as in the opinion of counsel for the underwriters a prospectus is
required by law to be delivered in connection with sales of Registrable Securities by an
underwriter or dealer or (ii) such shorter period as will terminate when all of the
securities covered by such Registration Statement have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in such Registration
Statement (but in any event not before the expiration of any longer period required under the
Securities Act), and to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement until such time as all of such
securities have been disposed of in accordance with the intended methods of disposition by the
seller or sellers thereof set forth in such Registration Statement;



     (j) use its best efforts to cause all Registrable Securities covered by such Registration
Statement to be registered with or approved by such other governmental agencies, authorities or
self-regulatory bodies as may be necessary or reasonably advisable in light of the business and
operations of the Company to enable the seller or sellers thereof to consummate the disposition of
such Registrable Securities in accordance with the intended method or methods of disposition
thereof;



     (k) notify each seller of any Registrable Securities covered by such Registration Statement
(i) when the prospectus or any prospectus supplement or post-effective amendment has been
filed and, with respect to such Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the Commission for amendments or
supplements to such registration statement or to amend or to supplement such prospectus or for
additional information, and (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of such registration statement or the initiation of any proceedings
for any of such purposes;



 









 





     (l) use its best efforts to cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then listed or, if no
similar securities issued by the Company are then listed on any securities exchange, use its best
efforts to cause all such Registrable Securities to be listed on the New York Stock Exchange or
NASDAQ (as determined in connection with the IPO);



     (m) provide a transfer agent and registrar for all such Registrable Securities not later than
the effective date of such registration statement;



     (n) enter into such customary agreements (including underwriting agreements in customary form)
and take all such other actions as the holders of a majority of the Registrable Securities being
sold or the underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including, without limitation, effecting a stock split
or a combination of shares);



     (o) in the event of the issuance of any stop order suspending the effectiveness of a
registration statement, or of any order suspending or preventing the use of any related prospectus
or suspending the qualification of any Securities included in such registration statement for sale
in any jurisdiction, the Company will use its commercially reasonable efforts promptly to obtain
the withdrawal of such order.



     The Company may require each seller of any Securities as to which any registration is being
effected to furnish the Company such information regarding such seller and the distribution of such
Securities as the Company may from time to time reasonably request in writing in order to permit
the Company to comply with all applicable federal and state securities laws.



     The Company shall make available for inspection by any seller of Securities as to which any
registration is being effected, any underwriter participating in any disposition pursuant to the
related registration statement, and any attorney, accountant or other agent retained by any such
seller or any such underwriter (collectively, the “Inspectors”), all financial and other
records, pertinent corporate documents and properties of the Company and its subsidiaries, if any,
as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and
shall cause the Company’s and its subsidiaries’ officers, directors and employees to supply all
information and respond to all inquiries reasonably requested by any such Inspector in connection
with such registration statement.



     Each Stockholder hereby agrees that upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4.3(g), such holder will promptly
discontinue such holder’s disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such holder’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 4.3(g), and, if so directed by the
Company, will deliver to the Company (at the



 









 




Company’s expense) all copies, other than permanent file copies, then in such holder’s
possession of the prospectus covering such Registrable Securities current at the time of receipt of
such notice. In the event the Company shall give such notice, the period mentioned in Section
4.3(b) shall be extended by the number of days during the period from and including the date when
each seller of any Registrable Securities covered by such Registration Statement shall have
received such notice to but not including the date when each such seller receives copies of the
supplemented or amended prospectus contemplated by Section 4.3(g).




     (p) Other Registration Rights. Except as provided in this Agreement, the Company will
not grant to any holder or prospective holder of any Securities of the Company registration rights
with respect to such Securities that are senior to or otherwise have priority over the rights
granted hereunder.



     4.4 Registration Expenses; Indemnification.



     (a) Registration Expenses.




     (i) Except as otherwise provided for herein, all expenses incidental to the Company’s
performance of or compliance with this Agreement, including, without limitation, all
registration and filing fees, fees and expenses of compliance with securities or blue sky
laws, word processing, duplicating and printing expenses, messenger and delivery expenses,
and fees and disbursements of counsel for the Company and all independent certified public
accountants, underwriters and other Persons retained by the Company (all such expenses,
“Registration Expenses”), will be borne as provided in this Agreement, except that
the Company will, in any event, pay its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or accounting
duties), the expenses of any annual audit or quarterly review, the expenses of any
liability insurance and the expenses and fees for listing the securities to be registered
on each securities exchange on which similar securities issued by the Company are then
listed or on the New York Stock Exchange or NASDAQ. All Selling Expenses will be borne by
the holders of the securities so registered pro rata on the basis of the number of their
shares so registered.




     (ii) In connection with each Demand Registration and each Piggyback Registration, the
Company will reimburse the holders of Registrable Securities covered by such registration
or qualification for the reasonable fees and disbursements of one United States counsel,
who will be chosen by the Initiating Holder in the case of a Demand Registration or a
Short-Form Registration.




     (iii) To the extent Registration Expenses are not required to be paid by the Company,
each holder of securities included in any registration or qualification hereunder will pay
those Registration Expenses allocable to the



 









 






registration or qualification of such holder’s securities so included, and any
Registration Expenses not so allocable will be borne by all sellers of securities included
in such registration in proportion to the aggregate selling price of the securities to be
so registered or qualified.



     (b) Indemnification.




     (i) The Company agrees to indemnify and hold harmless, and hereby does indemnify and
hold harmless, each holder of Registrable Securities, its affiliates and their respective
officers, directors and partners and each Person who controls such holder of Registrable
Securities (within the meaning of the Securities Act) against, and pay and reimburse such
holder of Registrable Securities, affiliate, director, officer or partner or controlling
person for any losses, claims, damages, liabilities, joint or several, to which such holder
of Registrable Securities or any such affiliate, director, officer or partner or
controlling person may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon (i) any untrue or
alleged untrue statement of material fact contained in any Registration Statement,
prospectus or preliminary prospectus or any amendment thereof or supplement thereto,
(ii) any omission or alleged omission of a material fact from a Registration
Statement, or any amendment thereof, required to be stated therein or necessary to make the
statements therein not misleading, (iii) any omission or alleged omission of
material fact from a prospectus or preliminary prospectus, or any amendment thereof or
supplement thereto, necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (iv) any violation by
the Company of any rule or regulation promulgated under the Securities Act or any state
securities laws applicable to the Company and relating to action or inaction required of
the Company in connection with any such registration, and the Company will pay and
reimburse such holder of Registrable Securities and each such affiliate, director, officer,
partner and controlling person for any legal or any other expenses actually and reasonably
incurred by them in connection with investigating, defending or settling any such loss,
claim, liability, action or proceeding, provided that the Company will not be
liable in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement, or omission or alleged omission, made in such
Registration Statement, any such prospectus or preliminary prospectus or any amendment or
supplement thereto, or in any application, in reliance upon, and in conformity with,
written information prepared and furnished to the Company by such holder of Registrable
Securities expressly for use therein. In connection with an underwritten offering, the
Company, if requested, will indemnify such underwriters, their officers and




 









 






directors and each Person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to the indemnification of
the holder of Registrable Securities.




     (ii) In connection with any Registration Statement in which a holder of Registrable
Securities is participating, each such holder of Registrable Securities will furnish to the
Company in writing such information and affidavits as the Company reasonably requests for
use in connection with any such Registration Statement or prospectus and, will indemnify
and hold harmless the Company, its directors and officers, each underwriter and each other
Person who controls the Company (within the meaning of the Securities Act) and each such
underwriter against any losses, claims, damages, liabilities, joint or several, to which
such holder of Registrable Securities or any such director or officer, any such underwriter
or controlling person may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon (i) any untrue or
alleged untrue statement of material fact contained in the Registration Statement,
prospectus or preliminary prospectus or any amendment thereof or supplement thereto or in
any application, (ii) any omission or alleged omission of a material fact from a
Registration Statement, or any amendment thereof, required to be stated therein or
necessary to make the statements therein not misleading or (iii) any omission or
alleged omission of material fact from a prospectus or preliminary prospectus, or any
amendment thereof or supplement thereto, necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading, but only to
the extent that such untrue statement or omission is made in such Registration Statement,
any such prospectus or preliminary prospectus or any amendment or supplement thereto, or in
any application, in reliance upon and in conformity with written information prepared and
furnished to the Company by such holder of Registrable Securities expressly for use
therein, and such holder of Registrable Securities will reimburse the Company and each such
director, officer, underwriter and controlling Person for any legal or any other expenses
actually and reasonably incurred by them in connection with investigating, defending or
settling any such loss, claim, liability, action or proceeding, provided that the
obligation to indemnify and hold harmless will be individual and several to each holder of
Registrable Securities and will be limited to the net amount of proceeds received by such
holder of Registrable Securities from the sale of Registrable Securities pursuant to such
Registration Statement.




     (iii) Any Person entitled to indemnification hereunder will (A) give prompt
written notice to the indemnifying party of any claim with respect to which it seeks
indemnification and (B) unless in such indemnified party’s reasonable judgment a
conflict of interest between such indemnified and



 









 







indemnifying parties may exist with respect to such claim, permit such indemnifying
party to assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party will not be subject
to any liability for any settlement made by the indemnified party without its consent (but
such consent will not be unreasonably withheld). An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim will not be obligated to pay the fees
and expenses of more than one counsel for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable judgment of any indemnified
party a conflict of interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim.




     (iv) The indemnification provided for under this Agreement will remain in full force
and effect regardless of any investigation made by or on behalf of the indemnified party or
any officer, director or controlling Person of such indemnified party and will survive the
registration and sale of any securities by any Person entitled to any indemnification
hereunder and the expiration or termination of this Agreement.




     (v) If the indemnification provided for in this Section 4.4(b) is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect to any loss,
liability, claim, damage or expense referred to therein, then the indemnifying party, in
lieu of indemnifying such indemnified party thereunder, will contribute to the amount paid
or payable by such indemnified party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other hand in
connection with the statements or omissions which resulted in such loss, liability, claim,
damage or expense as well as any other relevant equitable considerations. The relevant
fault of the indemnifying party and the indemnified party will be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission.
Notwithstanding the foregoing, the amount any holder of Registrable Securities will be
obligated to contribute pursuant to this Section 4.4(b)(v) will be limited to an amount
equal to the proceeds to such holder of Registrable Securities of the Restricted Securities
sold pursuant to the registration statement which gives rise to such obligation to
contribute (less the aggregate amount of any damages which the holder of Registrable
Securities has otherwise been required to pay in respect of such loss, claim, damage,
liability or



 









 







action or any substantially similar loss, claim, damage, liability or action arising
from the sale of such Restricted Securities).



ARTICLE V



DEFINITIONS




     5.1 Certain Definitions.



     “ACF” has the meaning set forth in the Recitals.



     “Acquisition” has the meaning set forth in the Recitals.



     “Affiliate” means, with respect to any Person, (i) any Person directly or
indirectly Controlling, Controlled by or under common Control with such Person, (ii) any
Person directly or indirectly owning or Controlling 10% or more of any class of outstanding voting
securities of such Person or (iii) any officer, director, general partner or trustee of any
such Person described in clause (i) or (ii).



     “Affiliate Tag-Along Assignor” has the meaning set forth in Section 2.2(b).



     “Agreement” means this Stockholders Agreement, as amended from time to time in
accordance with Section 6.8.



     “Applicable Law” means all applicable provisions of (i) constitutions,
treaties, statutes, laws (including the common law), rules, regulations, ordinances, codes or
orders of any Regulatory Entity, (ii) any consents or approvals of any Regulatory Entity
and (iii) any orders, decisions, injunctions, judgments, awards, decrees of or agreements
with any Regulatory Entity.



     “Board” has the meaning set forth in Section 1.1(a)(i).



     “Business Day” means a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required to close.



     “CEO Nominee” has the meaning set forth in Section 1.1(a)(i)(E).



     “Chief Executive Officer” means the chief executive officer of the Company.



     “Class I,” “Class II” and “Class III” have the meanings set forth in
Section 1.1(b).



     “Closing” means the closing of the Acquisition.



     “Closing Date” means the date of the Closing.



     “Code” means the U.S. Internal Revenue Code of 1986, as amended.



 









 





     “Commission” has the meaning set forth in Section 4.3(a).



     “Committees” has the meaning set forth in Section 1.1(c).



     “Common Stock” means the common stock, without par value, of the Company and any
securities issued in respect thereof, or in substitution therefor, in connection with any stock
split, dividend or combination, or any reclassification, recapitalization, merger, consolidation,
exchange or other similar reorganization.



     “Company” has the meaning set forth in the Preamble.



     “Competitor” means a Person, or another Person that controls or is controlled by a
Person engaged in the renting of construction, industrial and materials handling equipment used for
similar purposes as the equipment rented by the Company (and any Subsidiaries thereof) to its
customers as of the date of determination and who had total revenue in such business in excess of
$25 million for its most recently completed fiscal year in the geographic areas in which the
Company and its Subsidiaries are conducting business on such date; provided that for
purposes of this Agreement no Affiliate of ACF whose activities would be or would have been
permitted by Section 7.6(a) of the Recapitalization Agreement during the 2-year period commencing
on November 27, 2006 shall be deemed a Competitor.



     “Control” means the power to direct the affairs of a Person by reason of ownership of
voting securities, by contract or otherwise.



     “Controlled Affiliate” means, with respect to any Person, any Person directly or
indirectly Controlled by such Person; provided that the limited partners and non-managing
members of any Person that is an investment fund shall in no event be deemed Controlled Affiliates
of such fund.



     “Controlled Company Event” means the first date on which the Company ceases to qualify
as a “controlled company” as defined from time to time under the New York Stock Exchange’s
corporate governance listing standards.



     “Corporate Opportunity” has the meaning set forth in Section 1.6(d).



     “Demand Registration” has the meaning set forth in Section 4.2(a).



     “Effective Time” has the meaning set forth in Section 6.2.



     “Equity Securities” means any and all shares of Common Stock of the Company,
securities of the Company convertible into, or exchangeable or exercisable for, such shares, and
options, warrants or other rights to acquire such shares.



 









 





     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time, and the rules and regulations promulgated thereunder.



     “Fair Market Value” means with respect to any non-cash asset or consideration, the
fair market value of such non-cash asset or consideration as determined in good faith by the Board.



     “Group” has the meaning assigned to such term in Section 13(d)(3) of the Exchange Act.



     “Independent Director” means an “independent director” as such term is defined from
time to time in the New York Stock Exchange’s corporate governance listing standards.



     “Information” means all information about the Company or any of its Subsidiaries that
is or has been furnished to any Stockholder or any of its Representatives by or on behalf of the
Company or any of its Subsidiaries, or any of their respective Representatives, and any other
information supplied by the Company, any Subsidiary of the Company or any Stockholder in connection
with the Acquisition (whether written or oral or in electronic or other form), together with all
written or electronically stored documentation prepared by such Stockholder or its Representatives
based on or reflecting, in whole or in part, any such information; provided that the term
“Information” does not include any information that (x) is or becomes generally available
to the public through no action or omission by any Stockholder or its Representatives or
(y) is or becomes available to such Stockholder on a nonconfidential basis from a source,
other than the Company or any of its subsidiaries, or any of their respective Representatives, that
to the best of such Stockholder’s knowledge, after reasonable inquiry, is not prohibited from
disclosing such portions to such Stockholder by a contractual, legal or fiduciary obligation.



     “Initiating Holder” has the meaning set forth in Section 4.2(a).



     “Inspectors” has the meaning set forth in Section 4.3(o).



     “Investor” has the meaning set forth in the Recitals.



     “Investor Nominees” has the meaning set forth in Section 1.1(a)(i)(B).



     “IPO” has the meaning set forth in the Recitals.



 









 





     “Majority Approval” means the prior approval of one or more Principal Investors
having, singly or in the aggregate, the right to designate a majority of the Investor Nominees
pursuant to Section 1.1(a) at the time such approval is required.



     “NASD” means the National Association of Securities Dealers, Inc.



     “Necessary Action” means, with respect to a specified result, all actions (to the
extent permitted by Applicable Law) necessary to cause such result, including (i) voting or
providing written consent or proxy with respect to Voting Securities, (ii) calling and
attending meetings in person or by proxy for purposes of obtaining a quorum and causing the
adoption of stockholders’ resolutions and amendments to the Company’s certificate of incorporation
or by-laws, (iii) causing members of the Board (to the extent such members were nominated
or designated by the Person obligated to undertake the Necessary Action, and subject to any
fiduciary duties that such members may have as directors of the Company) to act in a certain manner
or causing them to be removed in the event they do not act in such a manner, (iv) executing
agreements and instruments and (v) making, or causing to be made, with Regulatory Entities
all filings, registrations or similar actions that are required to achieve such result.



     “Oak Hill” means Oak Hill 1, Oak Hill 2 and Oak Hill 3, acting together.



     “Oak Hill Nominees” has the meaning set forth in Section 1.1(a)(i)(B).



     “Original Agreement” has the meaning set forth in the Recitals.



     “Original Shares” has the meaning set forth in Section 1.5(a)(i).



     “Permitted Transferee” means as to any Stockholder: (i) the owners of such
Stockholder in connection with any liquidation of, or a distribution with respect to an equity
interest in, such Stockholder (including but not limited to any distribution by a Stockholder to
its limited partners); (ii) any Affiliate of such Stockholder; or (iii) any investor in any
Affiliate of such Stockholder (so long as such Affiliate remains an Affiliate of such Stockholder
after any investment by such investor); provided, that in no event shall (x) any
“portfolio company” of any Stockholder or any entity Controlled by any “portfolio company” of any
Stockholder or (y) any Competitor constitute a “Permitted Transferee”. The Company and its
Subsidiaries may be Permitted Transferees. Any Stockholder shall also be a Permitted Transferee of
the Permitted Transferees of itself.



     “Person” means any individual, corporation, limited liability company, limited or
general partnership, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivisions thereof or any Group comprised of
two or more of the foregoing.



 









 





     “Piggyback Registration” has the meaning set forth in Section 4.1(a).



     “Plan Assets” means assets of one or more employee benefit plans and are subject to
Part IV of Title I of ERISA.



     “Principal Investor Group” means, with respect to any Principal Investor, such
Principal Investor and its Affiliates.



     “Principal Investors” means Ripplewood and Oak Hill.



     “Prohibited Transaction” means any Transfer of Equity Securities to a Person which
(v) violates or causes a default or similar event (other than a violation, default or event
caused by or constituting a “change of control”), under any of the Company’s or any of its
Subsidiaries’ material debt agreements, indentures and other agreements or instruments evidencing
material indebtedness of the Company or any of its Subsidiaries, as such agreements, indentures and
instruments may be amended or modified from time to time in accordance with their terms,
(w) violates applicable securities laws or the Hart-Scott-Rodino Antitrust Improvements Act
of 1976 or would cause the Company to be in violation of any Applicable Law, (x) would
result in the assets of the Company constituting Plan Assets, or (y) would cause the
Company to be Controlled by or under common Control with an “investment company” for purposes of
the Investment Company Act of 1940, as amended.



     “Pro Rata Portion” means, with respect to the Transferring Stockholder or any
Tag-Along Participant, with respect to any proposed Transfer, on the applicable Transfer date, the
number of Shares equal to the product of (i) the total number of Shares to be Transferred
to the proposed Transferee and (ii) the fraction determined by dividing (A) the
total number of Shares owned by such Transferring Stockholder or Tag-Along Participant (as
applicable) as of such date plus the number of Shares owned by all Affiliate Tag-Along Assignors of
such Person by (B) the total number of Shares owned by the Transferring Stockholder and all
Tag-Along Participants and their respective Affiliate Tag-Along Assignors as of such date.



     “Public Offering” means an offering of Common Stock pursuant to a registration
statement filed in accordance with the Securities Act.



     “Registrable Securities” shall mean (i) any shares of Common Stock, or
(ii) any equity securities issued or issuable directly or indirectly with respect to the
securities referred to in the foregoing clause (i) by way of conversion or exchange thereof or
share dividend or share split or in connection with a combination of shares, recapitalization,
reclassification, merger, amalgamation, arrangement, consolidation or other reorganization. As to
any particular securities constituting Registrable Securities, such securities will cease to be
Registrable Securities when (x) they have been effectively registered or qualified for sale
by prospectus filed under the Securities Act and disposed



 









 







of in accordance with the Registration Statement covering therein, or (y) they have
been sold to the public through a broker, dealer or market maker pursuant to Rule 144 or other
exemption from registration under the Securities Act. For purposes of this Agreement, a Person
will be deemed to be a holder of Registrable Securities whenever such Person has the right to
acquire directly or indirectly such Registrable Securities (upon conversion or exercise in
connection with a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition has actually been
effected. “register,” “registered” and “registration” refers to a
registration effected by preparing and filing a Registration Statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such Registration
Statement, and compliance with applicable state securities laws of such states in which
Stockholders notify the Company of their intention to offer Registrable Securities.



     “Registration Expenses” has the meaning set forth in Section 4.4(a)(i).



     “Registration Statement” means the prospectus and other documents filed with the
Commission to effect a registration under the Securities Act.



     “Regulatory Entity” means any federal, state, local or foreign court, legislative,
executive or regulatory authority or agency, including (without limitation) any exchange upon which
equity securities of the Company are listed.



     “Regulatory Problem” shall mean (i) a reasonable likelihood that all or any
part of a Stockholder’s assets would be deemed to be “plan assets” for purposes of ERISA or
(ii) a change in the statute or regulation that authorizes or governs the investment by an
equityholder of a Stockholder in such Stockholder that makes investing in the Stockholder illegal
for such equityholder.



     “Representatives” means with respect to any Person, any of such Person’s, or its
Affiliates’, directors, officers, employees, general partners, Affiliates, direct or indirect
shareholders, members or limited partners, attorneys, accountants, financial and other advisers,
and other agents and representatives, including in the case of any Principal Investor any person
nominated to the Board or a Committee by such Principal Investor.



     “Ripplewood” means Ripplewood 1 and Ripplewood 2, acting together.



     “Ripplewood Nominees” has the meaning set forth in Section 1.1(a)(i)(A).



     “Rule 144” means Rule 144 under the Securities Act (or any successor rule).



     “Securities Act” means the Securities Act of 1933, as amended from time to time, and
the rules and regulations promulgated thereunder.



 









 





     “Selling Expenses” means all underwriting discounts, selling commissions and transfer
taxes applicable to the sale of Registrable Securities hereunder.



     “Shares” means issued and outstanding shares of Common Stock (as adjusted for stock
splits, stock dividends, reclassifications, recapitalizations and similar transactions).



     “Short-Form Registrations” has the meaning set forth in Section 4.2(c).



     “Stockholder Group Member” has the meaning set forth in Section 1.6(d).



     “Stockholders” means (i) the stockholders of the Company that are parties to
this Agreement and (ii) any other holder of any Equity Securities that becomes a party to
this Agreement after the date and pursuant to the terms hereof; provided that any Person
shall cease to be a stockholder if it no longer is the holder of any Equity Securities; and
provided further that for purposes of Sections 1.6(a) and 6.5(a), the term
Stockholder shall not include any holder of any Equity Securities who is an employee or former
employee of the Company or any of its Subsidiaries that is a party to one or more subscription or
similar agreements with the Company.



     “Subsidiary” means each Person in which a Person owns or controls, directly or
indirectly, capital stock or other equity interests representing more than 50% of the outstanding
capital stock or other equity interests.



     “Tag-Along Participants” has the meaning set forth in Section 2.2(a).



     “Tag Percentage” has the meaning set forth in Section 2.2(a).



     “Transfer” means, directly or indirectly, to sell, transfer, assign, pledge, encumber,
hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any
contract, option or other arrangement or understanding with respect to the sale, transfer,
assignment, pledge, encumbrance, hypothecation or similar disposition of, any Equity Securities
owned by a Person or any interest (including but not limited to a beneficial interest) in any
Equity Securities owned by a Person.



     “Transferee” means any Person to whom any Stockholder or any Transferee thereof
Transfers Equity Securities of the Company in accordance with the terms hereof.



     “Transfer Notice” has the meaning set forth in Section 2.2(a).



     “Transferred Securities” has the meaning set forth in Section 2.2(a).



     “Transferring Stockholder” has the meaning set forth in Section 2.2(a).



     “Unaffiliated Person” means, with respect to any Stockholder, any other Person that is
not an Affiliate of such Stockholder.



 









 





     “Unanimous Investor Approval” means the prior approval of each Principal Investor that
has the right to designate at least one Investor Nominee pursuant to Section 1.1(a) at the time
such approval is required.



     “Voting Securities” means, at any time, shares of any class of Equity Securities of
the Company, which are then entitled to vote generally in the election of directors.



     5.2 Terms Generally. The words “hereby”, “herein”, “hereof”, “hereunder” and words of
similar import refer to this Agreement as a whole (including the Exhibits and Annexes hereto) and
not merely to the specific section, paragraph or clause in which such word appears. All references
herein to Preamble, Recitals, Articles, Sections, Exhibits and Annexes and Schedules shall be
deemed references to Preamble, Recitals, Articles and Sections of, and Exhibits and Annexes to,
this Agreement unless the context shall otherwise require. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without limitation”. The definitions
given for terms in this Article V and elsewhere in this Agreement shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. References herein to any
agreement or letter shall be deemed references to such agreement or letter as it may be amended,
restated or otherwise revised from time to time.



ARTICLE VI



MISCELLANEOUS




     6.1 Termination. Subject to the early termination of any provision as a result of an
amendment to this Agreement agreed to by the Company and the Stockholders as provided under Section
6.8:



     (a) the provisions of Article I shall, with respect to each Stockholder, terminate as provided
in Section 1.5;



     (b) the provisions of Article II shall terminate upon the Principal Investors ceasing to own
(in the aggregate) at least 5% of the Voting Securities of the Company; and



     (c) all other provisions of this Agreement shall survive its termination.



Nothing in this Agreement shall relieve any party from any liability for the breach of any
obligations set forth in this Agreement.



     6.2 Effective Time. This Agreement shall be effective upon the execution hereof by
Stockholders holding in excess of 50% of the then-outstanding Voting Securities (including
Unanimous Investor Approval) (such execution constituting



 









 







approval of any amendments contained herein to the Original Agreement) and the consummation of
the IPO (the time of such effectiveness, the “Effective Time”).



     6.3 Confidentiality. Each party hereto agrees to, and shall cause its Representatives
to, keep confidential and not divulge any Information, and to use, and cause its Representatives to
use, such Information only in connection with the Acquisition and the operation of the Company and
its Subsidiaries; provided that nothing herein shall prevent any party hereto from
disclosing such Information (a) upon the order of any court or administrative agency,
(b) upon the request or demand of any regulatory agency or authority having jurisdiction
over such party, (c) to the extent required by law or stock exchange rule or compelled by
legal process or required or requested pursuant to subpoena, interrogatories or other discovery
requests, (d) to the extent necessary in connection with the exercise of any remedy
hereunder, (e) to such party’s Representatives that in the reasonable judgment of such
party need to know such Information and have agreed to abide by the terms of this Section 6.3 or
(f) to any potential Permitted Transferee or Unaffiliated Person transferee in connection
with a proposed Transfer of Equity Securities from such Stockholder as long as such transferee
agrees to be bound by the provisions of this Section 6.3 as if a Stockholder, provided
further that, in the case of clause (a), (b) or (c), such party shall notify the other
parties hereto of the proposed disclosure as far in advance of such disclosure as practicable and
use reasonable efforts to ensure that any Information so disclosed is accorded confidential
treatment, when and if available.



     6.4 Compliance.



     (a) The Stockholders shall not approve the retention by the Company or any of its Subsidiaries
of, and shall cause the Company and its Subsidiaries not to retain, the independent accountants of
any Principal Investor (or of any Principal Investor’s ultimate parent entity) for non-audit
services without the prior written consent of such Principal Investor. If required by the
Sarbanes-Oxley Act of 2002, as amended, so as not to impair the independence of the auditor of any
Principal Investor, the Stockholders shall cause the Company and its Subsidiaries to discontinue
and restrict certain relationships (as set forth in such Act) between the Company and its
Subsidiaries and the auditor of such Principal Investor.



     (b) The Stockholders shall cooperate in good faith to procure that the Company take such
necessary action and exercise all necessary powers so that the Company and its Subsidiaries are
compliant with the provisions of the Sarbanes-Oxley Act of 2002, as amended, and all other
applicable securities laws and listing exchange requirements.



     6.5 Restrictions on Other Agreements; Conflicts.



 









 





     (a) Following the date hereof, no Stockholder shall enter into or agree to be bound by any
stockholder agreements or arrangements of any kind with any Person other than the Company with
respect to any Equity Securities except agreements with respect to any sale or other transfer of
Equity Securities permitted hereby or other matters as expressly permitted hereunder. A Principal
Investor may enter into any stockholder agreement or arrangements with a member of its or any other
Principal Investor Group.



     (b) Each of the parties covenants and agrees to vote their Voting Securities and to take any
other action reasonably requested by the Company or any Stockholder to amend the Company’s by-laws
or certificate of incorporation so as to avoid any conflict with the provisions hereof.



     6.6 Further Assurances. Each party hereto shall do and perform or cause to be done
and performed all such further acts and things, and shall execute and deliver all such further
agreements, certificates, instruments and documents, as any other party hereto reasonably may
request in order to carry out the provisions of this Agreement and the consummation of the
transactions contemplated hereby.



     6.7 No Recourse; No Stockholder Duties.



     (a) Notwithstanding anything to the contrary in this Agreement, the Company and each
Stockholder agrees and acknowledges that no recourse under this Agreement or any documents or
instruments delivered in connection with this Agreement, shall be had against any current or future
director, officer, employee, general or limited partner or member of any Stockholder or of any
Affiliate or assignee thereof, whether by the enforcement of any assessment or by any legal or
equitable proceeding, or by virtue of any statute, regulation or other Applicable Law, it being
expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed
on or otherwise be incurred by any current or future officer, agent or employee of any Stockholder
or any current or future member of any Stockholder or any current or future director, officer,
employee, partner or member of any Stockholder or of any Affiliate or assignee thereof, as such for
any obligation of any Stockholder under this Agreement or any documents or instruments delivered in
connection with this Agreement for any claim based on, in respect of or by reason of such
obligations or their creation.



     (b) The Stockholders 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 to give or
withhold its consent, or when any Stockholder takes any action under this Agreement to give or
withhold its consent, such Stockholder shall have no duty (fiduciary or other) to consider the
interests of the Company or the other Stockholders and may act exclusively in its own interest and
shall have no duty to act in good faith; provided that the foregoing shall in no way affect
the obligations of the parties hereto to comply with the provisions of this Agreement.



 









 





     6.8 Amendment; Waivers, etc. This Agreement may be amended, and the Company and any
Stockholder may take any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if any such amendment, action or omission to act, has been approved by
Stockholders holding in excess of 50% of the then-outstanding Voting Securities of the Stockholders
including Unanimous Investor Approval, provided that this Agreement may not be amended in a
manner adversely affecting the rights or obligations of any Stockholder which does not adversely
affect the rights or obligations of all similarly situated Stockholders in the same manner without
the consent of such Stockholder. The failure of any party to enforce any of the provisions of this
Agreement shall in no way be construed as a waiver of such provisions and shall not affect the
right of such party thereafter to enforce each and every provision of this Agreement in accordance
with its terms. Any Stockholder may waive (in writing) the benefit of any provision of this
Agreement with respect to itself for any purpose. Any such waiver shall constitute a waiver only
with respect to the specific matter described in such writing and shall in no way impair the
rights of the Stockholder granting such waiver in any other respect or at any other time.



     6.9 Assignment. Neither this Agreement nor any right or obligation arising under this
Agreement may be assigned by any party without the prior written consent of the other parties,
provided that (a) any Principal Investor may assign all or a portion of its rights and
obligations hereunder to any Person that is or becomes a Stockholder and (b) ACF may assign its
rights under Section 4.2 (and related rights under Sections 4.3 and 4.4) to any transferee of 40%
or more of the number of Shares owned by ACF on the Closing Date.



     6.10 Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, successors and permitted assigns.



     6.11 No Third Party Beneficiaries. Except as contemplated in Sections 4.4(b) and 6.7,
nothing in this Agreement shall confer any rights upon any Person other than the parties hereto and
each such party’s respective heirs, successors and permitted assigns.



     6.12 Notices. All notices, requests, demands, waivers and other communications
required or permitted to be given under this Agreement shall be in writing and shall be deemed to
have been duly given if (a) delivered personally, (b) mailed, certified or
registered mail with postage prepaid, (c) sent by reputable overnight courier or
(d) sent by fax (provided a confirmation copy is sent by one of the other methods set forth
above), as follows (or to such other address as the party entitled to notice shall hereafter
designate in accordance with the terms hereof):



          If to the Company, to it at:



RSC Holdings Inc.

6929 E. Greenway Parkway




 









 







Scottsdale, Arizona 85254

Attn: Erik Olsson

Facsimile: (480) 368-4280




          with a copy (which shall not constitute notice) to:



Ripplewood Holdings, L.L.C.

One Rockefeller Plaza, 32nd Floor

New York, NY 10020

Attn: Christopher P. Minnetian, Esq.

(212) 218-2778 (telecopier)

(212) 582-6700 (telephone)

cminnetian@ripplewood.com (email)



and



Oak Hill Capital Management, L.L.C.

65 E. 55th Street, 36th Floor

New York, NY 10022

Attn: John R. Monsky, Esq.

(212) 758-3572 (telecopier)

(212) 326-1590 (telephone)

jmonsky@oakhillcapital.com (email)



and



Debevoise & Plimpton LLP

919 Third Avenue

New York, NY 10022-3902

Attn: Jeffrey J. Rosen, Esq.

(212) 909-6836 (telecopier)

(212) 909-6000 (telephone)

jrosen@debevoise.com (email)




          If to ACF, to it at:



c/o Atlas Copco AB

SE-105 23

Stockholm, Sweden

Attn: Håkan Osvald

011-46-8-743-8037 (telecopier)

011-46-8-743-8000 (telephone)

hakan.osvald@se.atlascopco.com (email)




 









 








          with a copy (which shall not constitute notice) to:



Pillsbury Winthrop Shaw Pittman LLP

1540 Broadway

New York, New York 10036

Attn: Stephen R. Rusmisel, Esq.

Donovan W. Burke, Esq.

(212) 858-1500 (telecopier)

(212) 858-1000 (telephone)

stephen.rusmisel@pillsburylaw.com (email)

donovan.burke@pillsburylaw.com (email)



If to any other Stockholder, to its address set forth on the signature page of such Stockholder to
this Agreement with a copy (which shall not constitute notice) to any party so indicated thereon.
All such notices, requests, demands, waivers and other communications shall be deemed to have been
received (w) if by personal delivery, on the day delivered, (x) if by certified or
registered mail, on the fifth Business Day after the mailing thereof, (y) if by overnight
courier, on the day delivered, or (z) if by fax, on the day delivered.




     6.13 Severability. Any term or provision of this Agreement which is invalid, illegal
or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity, illegality or unenforceability without rendering invalid, illegal or
unenforceable the remaining terms and provisions of this Agreement or affecting the validity,
illegality or enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision
shall be interpreted to be only so broad as is enforceable. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate
in good faith to modify this Agreement so as to effect the original intent of the Parties as
closely as possible in a mutually acceptable manner in order that the transactions contemplated
herein are consummated as originally contemplated to the fullest extent possible.



     6.14 Headings. The headings contained in this Agreement are for purposes of
convenience only and shall not affect the meaning or interpretation of this Agreement.



     6.15 Entire Agreement. This Agreement constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the parties with respect to
the subject matter hereof.



     6.16 Governing Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York (regardless of the laws that might



 









 







otherwise govern under applicable principles or rules of conflicts of law to the extent such
principles or rules are not mandatorily applicable by statute and would require the application of
the laws of another jurisdiction).



     6.17 Consent to Jurisdiction. Each party irrevocably submits to the exclusive
jurisdiction of (a) the Supreme Court of the State of New York, New York County, and
(b) the United States District Court for the Southern District of New York, for the
purposes of any suit, action or other proceeding arising out of this Agreement or any transaction
contemplated hereby (and agrees not to commence any such suit, action or other proceeding except in
such courts). Each party further agrees that service of any process, summons, notice or document
by U.S. registered mail to such party’s respective address set forth or referred to in Section 6.12
shall be effective service of process for any such suit, action or other proceeding. Each party
irrevocably and unconditionally waives any objection to the laying of venue of any such suit,
action or other proceeding in (i) the Supreme Court of the State of New York, New York
County, and (ii) the United States District Court for the Southern District of New York,
that any such suit, action or other proceeding brought in any such court has been brought in an
inconvenient forum.



     6.18 Waiver of Jury Trial. Each party hereby waives, to the fullest extent permitted
by Applicable Law, any right it may have to a trial by jury in respect of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby. Each party
(a) certifies and acknowledges that no representative, agent or attorney of any other party
has represented, expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver, and (b) acknowledges that it understands
and has considered the implications of this waiver and makes this waiver voluntarily, and that it
and the other parties have been induced to enter into the Agreement by, among other things, the
mutual waivers and certifications in this Section 6.18.



     6.19 Enforcement. Each party hereto acknowledges that money damages would not be an
adequate remedy in the event that any of the covenants or agreements in this Agreement are not
performed in accordance with its terms, and it is therefore agreed that in addition to and without
limiting any other remedy or right it may have, the non-breaching party will have the right to an
injunction, temporary restraining order or other equitable relief in any court of competent
jurisdiction enjoining any such breach and enforcing specifically the terms and provisions hereof.
In the event that the Company or one or more Principal Investors shall file suit to enforce the
covenants contained in this Agreement (or obtain any other remedy in respect of any breach
thereof), the prevailing party in the suit shall be entitled to recover, in addition to all other
damages to which it may be entitled, the costs incurred by such party in conducting the suit,
including, without limitation, reasonable attorney’s fees and expenses.



     6.20 Counterparts; Facsimile Signatures. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. This Agreement may be executed by facsimile signature(s).



 









 





     IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement by their authorized
representatives as of the date first above written.



	 	 	 	 	 
	 	RSC HOLDINGS INC.

 	 
	 	By:  	/s/ Kevin Groman
 	 
	 	 	Name:  	Kevin Groman 	 
	 	 	Title:  	SVP – General Counsel 	 



 









 






	 	 	 	 	 
	 	RSC ACQUISITION LLC

 	 
	 	By:  	                                         Ripplewood Partners II, L.P.
 	 
	 	 	its Sole Member 	 
	 	 	 	 
	 	By:  	                                         Ripplewood Partners II GP, L.P.
 	 
	 	 	its General Partner 	 
	 	 	 	 
	 	By:  	                                         RP II GP, LLC
 	 
	 	 	its General Partner 	 
	 	 	 	 
	 	By:  	                                         /s/ Christopher P. Minnetian
 	 
	 	 	Name:  	Christopher P. Minnetian 	 
	 	 	Title:  	Secretary 	 
	 
	 	RSC ACQUISITION II LLC

 	 
	 	By:  	RP II GP, LLC
 	 
	 	 	its Manager 	 
	 	 	 	 
	 	By:  	                                         /s/ Christopher P. Minnetian
 	 
	 	 	Name:  	Christopher P. Minnetian 	 
	 	 	Title:  	Secretary 	 
	 



 









 





	 	 	 	 	 
	 	OHCP II RSC, LLC

 	 
	 	By:  	Oak Hill Capital Parters II, L.P.
 	 
	 	 	its Sole Member 	 
	 	 	 	 
	 	By:  	                                         OHCP Gen Par II, L.P.
 	 
	 	 	its General Partner 	 
	 	 	 	 
	 	By:  	                                         OHCP MGP II, L.L.C.
 	 
	 	 	its General Partner 	 
	 	 	 	 
	 	By:  	                                         /s/ John R. Monsky
 	 
	 	 	Name:  	John R. Monsky 	 
	 	 	Title:  	Vice President 	 
	 
	 	OHCMP II RSC, LLC

 	 
	 	By:  	Oak Hill Capital Management Partners II, L.P.
 	 
	 	 	its Sole Member 	 
	 	 	 	 
	 	By:  	                                      OHCP Gen Par II, L.P.
 	 
	 	 	its General Partner 	 
	 	 	 	 
	 	By:  	                                         OHCP MGP II, L.L.C.
 	 
	 	 	its General Partner 	 
	 	 	 	 
	 	By:  	                                         /s/ John R. Monsky
 	 
	 	 	Name:  	John R. Monsky 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 
	 	OHCP II RSC COI, LLC

 	 
	 	By:  	                                         OHCP Gen Par II, L.P.
 	 
	 	 	its Sole Member 	 
	 	 	 	 
	 	By:  	                                         OHCP MGP II, L.L.C.
 	 
	 	 	its General Partner 	 
	 	 	 	 
	 	By:  	                                         /s/ John R. Monsky
 	 
	 	 	Name:  	John R. Monsky 	 
	 	 	Title:  	Vice President