AMENDMENT NO. 1 TO AMENDED AND
RESTATED
STOCKHOLDERS AGREEMENT
AMENDMENT NO. 1 (this “Amendment”),
dated as of August 24, 2009, to the Amended and Restated
Stockholders Agreement (the “Existing Stockholders
Agreement”), dated as of May 29, 2007, among (i) RSC
Holdings Inc., a Delaware corporation (the “Company”),
and (ii) each Stockholder party to the Existing Stockholders
Agreement. Capitalized terms used herein without definition shall
have the meanings set forth in the Existing Stockholders Agreement.
The Existing Stockholders Agreement, as amended hereby, is referred
to as the “Amended Stockholders Agreement.”
WHEREAS, the Existing Stockholders Agreement
provides that, pursuant to Section 6.8 thereof, the Existing
Stockholders Agreement may be amended 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;
WHEREAS, the Stockholders who are signatories to
this Amendment constitute (i) Stockholders holding in excess
of 50% of the then-outstanding Voting Securities of the
Stockholders and (ii) all of the Principal Investors who have
the right to designate at least one Investor Nominee pursuant to
Section 1.1(a) of the Existing Stockholders Agreement as of
the date hereof;
WHEREAS, in connection with Ripplewood’s
desire to provide their limited partners with liquidity in the
Company’s Shares, Ripplewood has indicated it wishes to
distribute approximately 26.6 million Shares to those limited
partners and would immediately after such distribution cause all of
the Ripplewood Nominees to resign from the Board; and
WHEREAS, the parties hereto wish to amend the
Existing Stockholders Agreement pursuant to Section 6.8
thereof to, among other things, allow the composition of the Board
to better reflect the shareholdings of the Stockholders;
NOW, THEREFORE, in consideration of the mutual
agreements contained herein, the parties hereto hereby agree as
follows:
1. Amendment and Restatement of
Section 1.1(a) of the Existing Stockholders Agreement .
Section 1.1(a) of the Existing Stockholders Agreement is
hereby amended and restated in its entirety to read as
follows:
(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 10 directors:
(A) four of whom shall be designated by Oak
Hill (such persons, the “ Oak Hill Nominees ” or
the “ Investor Nominees ”) (subject to reduction
pursuant to Section 1.5(a)(i));
(B) four of whom shall be Independent
Directors, each of which shall be designated by Majority Approval
(provided that the Board may opt not to fill one of these
positions); and
(C) 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), the Stockholders and the
Company shall take all Necessary Action to cause the Board to
include the following:
(A) three Oak Hill Nominees (subject to
reduction pursuant to Section 1.5(a)(ii));
(B) such number of Independent Directors as
shall be required to comply with Applicable Law (after giving
effect to applicable transition periods, if any), each of which
shall be designated by Majority Approval; and
(C) unless otherwise agreed by Majority
Approval, the CEO Nominee.
If, after giving effect to the foregoing
provisions of this Section 1.1(a)(ii), the composition 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 Oak Hill
Nominees and their resignation from the Board or Committees, or
both).”
2. Amendment of Section 1.1(b) of
the Existing Stockholders Agreement . The last sentence of
Section 1.1(b) of the Existing Stockholders Agreement is
hereby amended and restated in its entirety to read as follows:
“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 Oak
Hill Nominees is reduced pursuant to Section 1.1(a)(ii) or
Section 1.5, upon the resignation of an affected Oak Hill
Nominee from a class of the Board, the right set forth in
Section 1.1(d) to designate successor Oak Hill Nominees to
such class shall expire.”
3. Amendment and Restatement of
Section 1.5 of the Existing Stockholders Agreement .
Section 1.5 of the Existing Stockholders Agreement is hereby
amended and restated in its entirety to read as follows:
“1.5
Termination of Oak Hill’s Rights .
(a) Prior to a Controlled Company
Event . Notwithstanding anything to the contrary in this
Article I, prior to the occurrence of a Controlled Company
Event, the number of Oak Hill No
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