Exhibit 10.9


 


MANAGEMENT RIGHTS AGREEMENT


 


THIS MANAGEMENT RIGHTS AGREEMENT (this “Agreement”) is effective as of June 3, 2005, by and among
Odyssey Investment Partners Fund III, L.P., a Delaware limited partnership (“OIP III”), Odyssey Investment Partners, LLC, a Delaware
limited liability company (“Odyssey LLC”), Iron
Merger Partnership, a Delaware partnership (“Iron Merger”),
Neff Corp., a Delaware corporation (“Neff Corp”) and
Neff Rental, Inc., a Florida corporation (“Neff Rental”).


 


RECITALS


 


WHEREAS, (i) Neff
Rental is wholly owned by Neff Corp; (ii) Iron Merger owns approximately 66.1%
of the Class A common stock of Neff Corp; and (iii) Iron Merger is
wholly owned by OIP III and Odyssey LLC as of the date hereof;


 


WHEREAS, Iron Merger,
Neff Corp and Neff Rental wish to set forth their understanding with regard to
the operations, control and management of Neff Corp and Neff Rental; and


 


WHEREAS, OIP III has
requested to be granted, and Iron Merger, Neff Corp and Neff Rental have agreed
to grant to OIP III, the right to review the books and records of Neff Corp and
Neff Rental and consult with management of Neff Corp and Neff Rental regarding
their operations.


 


AGREEMENT


 


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


 


1.                                       Certain
Definitions.  As used in this
Agreement, the following terms shall have the following respective meanings:


 


(a)                                  “Beneficial Ownership” means the power,
directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise, to (i) vote, or to direct the voting of, a
security; and (ii) dispose, or to direct the disposition of, such
security.  “Beneficially Owns” shall mean having Beneficial Ownership.


 


(b)                                 “Neff Corp Board” means the board of directors of Neff Corp.


 


(c)                                  “Neff Rental Board” means the board of directors of Neff
Rental.


 


(d)                                 “Voting Securities” shall mean with respect
to any entity, all debt or equity securities of such entity entitled to vote
for the board of directors, board of managers or other similar body elected or
appointed to manage the business of such entity.


 





















 


2.                                       Designation
and Election of Directors.


 


(a)                                  During
the term of this Agreement, OIP III shall be entitled to nominate one director
to serve as a member of the Neff Corp Board (the “Neff Corp
Nominee”) and one director to serve as a member of the Neff Rental
Board (the “Neff Rental Nominee”).


 


(b)                                 OIP
III hereby designates William H. Hopkins as the Neff Corp Nominee and as the Neff
Rental Nominee.


 


(c)                                  With
respect to the Neff Corp Nominee, Iron Merger agrees to (i) vote (at any
regular or special meeting of Neff Corp) or cause its direct and indirect
subsidiaries to vote all of the Voting Securities of Neff Corp then
Beneficially Owned by it (whether so Beneficially Owned as of the date hereof
or hereafter acquired) in favor of, or otherwise to consent to the election or
appointment of the Neff Corp Nominee to the Neff Corp Board; and (ii) take
all other actions necessary and appropriate (whether by vote or consent or
otherwise) to cause the election or appointment of the Neff Corp Nominee to the
Neff Corp Board.


 


(d)                                 With
respect to the Neff Rental Nominee, each of Iron Merger and Neff Corp agrees to
(i) vote (at any regular or special meeting of Neff Rental) or cause its
direct and indirect subsidiaries to vote all of the Voting Securities of Neff
Rental then Beneficially Owned by it (whether so Beneficially Owned as of the
date hereof or hereafter acquired) in favor of, or otherwise to consent to the
election or appointment of the Neff Rental Nominee to the Neff Rental Board;
and (ii) take all other actions necessary and appropriate (whether by vote
or consent or otherwise) to cause the election or appointment of the Neff
Rental Nominee to the Neff Rental Board.


 


(e)                                  If
the Neff Corp Nominee or Neff Rental Nominee shall be unable or unwilling to
serve prior to his or her election or appointment to the Neff Corp Board or Neff
Rental Board, as applicable, OIP III shall be entitled to nominate a
replacement who shall then be the respective Neff Corp Nominee or Neff Rental
Nominee for the purposes of this Agreement. 
If, following election or appointment to the Neff Corp Board or Neff
Rental Board, the Neff Corp Nominee or Neff Rental Nominee shall resign or be
removed for cause or be unable to serve by reason of death or disability, OIP
III shall, within 30 days of such event, notify the respective Neff Corp Board
or Neff Rental Board in writing of a replacement, and all parties hereto shall
take such steps as may be necessary to elect or appoint such replacement to the
Neff Corp Board or the Neff Rental Board to fill the unexpired term of the
respective Neff Corp Nominee or Neff Rental Nominee.


 


(f)                                    Each
party hereto agrees not to take any action without the written consent of OIP
III, which consent may be given or withheld in OIP III’s sole discretion, to
remove, whether or not for cause, the Neff Corp Nominee from the Neff Corp
Board or the Neff Rental Nominee from the Neff Rental Board following his or
her election thereto, including, without limitation, by decreasing the size of
the Neff Corp Board or the Neff Rental Board such that there are an
insufficient number of directors on the Neff Corp Board or the Neff Rental
Board to permit OIP III to exercise its rights to nominate the Neff Corp Nominee
to the Neff Corp Board or the Neff Rental Nominee to the Neff Rental Board
pursuant to this Section 2.


 


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3.                                       Proxy.


 


With respect to the Neff Corp Nominee and the
Neff Rental Nominee, for so long as this Agreement is in effect, if Neff Corp
or Iron Merger fails or refuses to vote or cause its subsidiary to vote the
Voting Securities as provided in Section 2 hereof, without further action
by Neff Corp or Iron Merger, OIP III shall have an irrevocable proxy to vote
such Voting Securities in accordance with this Agreement, and each of Neff Corp
and Iron Merger hereby grants to OIP III such irrevocable proxy.


 


4.                                       Information.


 


(a)                                  Neff
Corp and Neff Rental shall keep proper books of record and account in which
full and correct entries shall be made of all financial transactions and the
assets and business of Neff Corp and Neff Rental or their subsidiaries (as the
case may be) in accordance with GAAP, to the extent GAAP is applicable.  Neff Corp and Neff Rental shall provide OIP
III with reasonable access to the books and records of Neff Corp and Neff
Rental and their subsidiaries, including without limitation, financial data
(including projections) and operating data covering each of such entities,
their businesses, operation and financial performance (the “Books and Records”).  Neff Corp and Neff Rental shall, and shall
cause their subsidiaries to, provide OIP III with reasonable access to all
Books and Records during regular business hours and allow OIP III to make
copies and abstracts thereof.


 


(b)                                 OIP
III shall have the right to consult from time to time with management of Neff
Corp and Neff Rental and their subsidiaries at their respective place of
business regarding operating and financial matters.


 


5.                                       Acceptance
and Acknowledgment.


 


Neff Corp and Neff Rental hereby acknowledge
and agree to the rights granted to OIP III hereunder.


 


6.                                       Miscellaneous.


 


(a)                                  Each
party hereto agrees to execute and deliver such documents and take such further
actions as may be necessary or desirable to effect the purposes and objectives
of this Agreement.


 


(b)                                 This
Agreement may not be amended or modified except by a written instrument signed
by each of the parties hereto.  The
waiver by any party of such party’s rights under this Agreement in any
particular instance or instances, whether intentional or otherwise, shall not
be considered as a continuing waiver which would prevent subsequent enforcement
of such rights or of any other rights.


 


(c)                                  This
Agreement with respect to Neff Corp shall automatically terminate when OIP III
and all of its affiliates collectively no longer Beneficially Own any Voting
Securities of Neff Corp and this Agreement with respect to Neff Rental shall


 


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automatically terminate when OIP and all of
its affiliates collectively no longer Beneficially Own any Voting Securities of
Neff Rental.


 


(d)                                 All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if sent by recognized overnight delivery
service, return receipt requested, to the following parties at the following
addresses or to such other parties and at such other addresses as shall be
specified by like notices:


 


if to OIP III at:


 


Odyssey Investment Partners, LLC


c/o Odyssey Investment Partners, LLC


21550 Oxnard Street, Suite 570


Woodland Hills, CA 91367


Attn: William F. Hopkins


 


with a copy to:


Latham & Watkins L.L.P.


885 Third Avenue, Suite 1000


New York, NY 10002


Attn: Robert Kennedy, Esq.


 


if to Odyssey LLC at:


 


Odyssey Investment Partners, LLC


21550 Oxnard Street, Suite 570


Woodland Hills, CA 91367


Attn: William F. Hopkins


 


with a copy to:


Latham & Watkins L.L.P.


885 Third Avenue, Suite 1000


New York, NY 10002


Attn: Robert Kennedy, Esq.


 


if to Iron Merger, Neff Corp or Neff Rental at
their respective registered office.


 


with a copy to:


 


Latham & Watkins L.L.P.


885 Third Avenue, Suite 1000


New York, NY 10002


Attn: Robert Kennedy, Esq.


 


Notice so given shall be deemed to be given and received on the second
business day after sending by recognized overnight delivery service, return
receipt requested.


 


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(e)                                  The
parties acknowledge and agree that the breach of the provisions of this
Agreement by any party could not be adequately compensated with monetary
damages, and the parties hereto agree, accordingly, that injunctive relief and
specific performance shall be appropriate remedies to enforce the provisions of
this Agreement and waive any claim or defense that there is an adequate remedy
at law for such breach; provided, however, that nothing herein
shall limit the remedies herein, legal or equitable, otherwise available and
all remedies herein are in addition to any remedies available at law or
otherwise.


 


(f)                                    The
aforementioned rights are intended to satisfy the requirement of management
rights for purposes of qualifying OIP III’s investment through Iron Merger in
Neff Corp as a “venture capital investment” for purposes of the Department of
Labor “plan assets” regulation, 29 C.F.R. § 2510.3-101.  In the event the aforementioned rights are
not satisfactory for such purposes, the parties will reasonably cooperate in
good faith to agree upon mutually satisfactory management rights that will
satisfy such regulations.


 


(g)                                 If
any provision of this Agreement shall be held to be illegal, invalid or
unenforceable under any applicable law, then such contravention or invalidity
shall not invalidate the entire Agreement. 
Such provision shall be deemed to be modified to the extent necessary to
render it legal, valid and enforceable, and if no such modification shall
render it legal, valid and enforceable then this Agreement shall be construed
as if not containing the provision held to be invalid, and the rights and
obligations of the parties shall be construed and enforced accordingly.


 


(h)                                 This
Agreement shall inure to the benefit of, and be binding upon, the parties hereto,
their heirs, administrators, executors, successors and assigns.  OIP III may assign its rights and interest in
this Agreement to any of its affiliates without need for the consent of any
other party hereto, and each of such other parties agrees that it will
acknowledge such an assignment upon the request by OIP III.


 


(i)                                     The
headings of the sections and paragraphs of this Agreement have been inserted
for convenience of reference only and do not constitute a part of this
Agreement.


 


(j)                                     The parties agree that this Agreement shall
be governed by and construed in accordance with the laws of the state of
Delaware, excluding any laws thereof which would direct application of law of
another jurisdiction.


 


(k)                                  This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, with the same effect as if each party had
signed the same document.  All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.


 


(l)                                     When
the context requires, the gender of all words used herein shall include the
masculine, feminine and neuter and the number of all words shall include the
singular and plural.


 


[signature
pages follow]


 


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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.


 


 


	
   

  	
  ODYSSEY
  INVESTMENT PARTNERS FUND,

  III, L.P.

  
	
   

  	
   

  
	
   

  	
  By: ODYSSEY
  INVESTMENT PARTNERS,

  LLC, its manager

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ODYSSEY
  INVESTMENT PARTNERS, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  IRON MERGER
  PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  ODYSSEY INVESTMENT PARTNERS

  FUND III, LP, Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  ODYSSEY INVESTMENT PARTNERS

  LLC, its manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  ODYSSEY INVESTMENT PARTNERS

  LLC, its Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
				



 


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  NEFF CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NEFF RENTAL, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


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