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EXHIBIT 10.5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated
as of May 15, 1996, is among RentX Industries, Inc., a Delaware corporation
(the "Corporation"), Mesirow Capital Partners VI, an Illinois limited
partnership ("Mesirow"), The Edgewater Private Equity Fund II, L.P., a Delaware
limited partnership ("Edgewater," Mesirow, Edgewater and any other persons who
purchase shares of Preferred Stock pursuant to the Investment Agreement (as
each term is defined below) being collectively referred to as the "Investors")
and BACE Investments, LLC, a Colorado limited liability company ("Bace").
RECITALS
WHEREAS, the Investors are purchasing shares of convertible
Series A Preferred Stock, par value $1.00 per share (the "Preferred Stock")
convertible into shares of Class A Common Stock, par value $.01 per share
("Class A Common Stock"), of the Corporation and Bace is purchasing shares of
convertible Series B Preferred Stock, par value $1.00 per share, convertible
into shares of Class A Common Stock (all shares of Class A Common Stock into
which the Preferred Stock or the Series B Preferred are converted or may be
convertible from time to time being referred to as the "Purchased Shares") as
contemplated by that certain Investment Agreement dated as of May 15, 1996 (the
"Investment Agreement"), among the Corporation, the Investors, and Bace;
provided that certain registration rights are granted to the Investors; and
WHEREAS, the Corporation deems it desirable for the
Corporation to grant certain registration rights to the Investors in order to
induce the Investors to purchase the Preferred Stock pursuant to the terms of
the Investment Agreement and to Bace.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. Definitions. As used in this Agreement:
(a) "Commission" means the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(b) "Common Stock" means the common stock of the
Corporation of any class.
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(c) "Person" means a natural person, a partnership,
a corporation, a limited liability company, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization or a
governmental entity or any department, agency or political subdivision thereof.
(d) "Registrable Shares" means at any time (i) the
Purchased Shares (whether or not such shares have been issued or are issuable
or are issuable upon conversion of the Preferred Stock or the Series B
Preferred); (ii) any shares of Common Stock then outstanding which were issued
as, or were issued directly or indirectly upon the conversion or exercise of
other securities issued as, a dividend or other distribution with respect to or
in replacement of other Registrable Shares; and (iii) any shares of Common
Stock then issuable directly or indirectly upon the conversion or exercise of
other securities which were issued as a dividend or other distribution with
respect to or in replacement of other Registrable Shares; provided, that
Registrable Shares shall not include any shares (i) the sale of which has been
registered pursuant to the Securities Act and which shares have been sold
pursuant to such registration or (ii) which have been sold to the public
pursuant to Rule 144 of the Commission under the Securities Act. For purposes
of this Agreement, a Person will be deemed to be a holder of Registrable Shares
whenever such Person has the then existing right to acquire such Registrable
Shares (by exercise, conversion or otherwise), whether or not such acquisition
has actually been effected.
(e) "Registration Expenses" has the meaning ascribed
to it in Section 6 of this Agreement.
(f) "Securities Act" means the Securities Act of
1933, as amended, or any similar federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect from time to
time.
(g) "Securities Exchange Act" means the Securities
Exchange Act of 1934, as amended, or any similar federal statute, and the rules
and regulations of the Commission thereunder, all as the same shall be in
effect from time to time.
2. Demand Registrations.
(a) Requests for Registration. At any time after
May 15, 1999, the holders of at least 50% or more of the then outstanding
Registrable Shares at any time may request registration under the Securities
Act of all or part of their Registrable Shares for sale in the manner specified
in such request. Within ten days after receipt of any request pursuant to this
Section 2(a), the Corporation will give written notice of such request to all
other holders of Registrable Shares and will include in such registration all
Registrable Shares with respect to which the Corporation has received written
requests for inclusion therein within 15 days after the receipt of the
Corporation's notice. All registrations requested pursuant to this Section
2(a) are referred to herein as "Demand Registrations."
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(b) Number of Demand Registrations. The Corporation
shall be obligated to register Registrable Shares pursuant to a Demand
Registration on three occasions only; provided that a registration will not
count as a Demand Registration until it has become effective and unless the
holders of Registrable Shares requesting such Registration are able to register
and sell at least 90% of the Registrable Shares requested to be included in
such registration; provided that in any event the Corporation will pay all
Registration Expenses in connection with any registration requested hereunder;
provided, however, that a registration that is withdrawn at the request of the
holders of Registrable Shares who demanded such Demand Registration will count
as a Demand Registration unless the Company is reimbursed by holders of
Registrable Shares for all reasonable out-of-pocket expenses incurred by the
Company in connection with such registration. The Company shall not be
required to effect a Demand Registration if the number of shares requested to
be registered is less than 2% of the shares of Common Stock then outstanding.
(c) Priority on Demand Registrations. If a Demand
Registration is an underwritten public offering, the holders of a majority of
the Registrable Shares to be sold pursuant to such offering may designate the
managing underwriters for such offering; provided that the selection of such
managing underwriters is subject to the approval of the Corporation, which
approval may not be unreasonably withheld. If in such an underwritten public
offering the managing underwriters advise the Corporation in writing that in
their opinion the number of Registrable Shares and other securities requested
to be included exceeds the number of Registrable Shares and other securities
which can be sold in such offering, the Corporation will include in such
registration, prior to the inclusion of any securities which are not
Registrable Shares, the number of Registrable Shares requested to be included
which in the opinion of such underwriters can be sold, pro rata among the
respective holders on the basis of the number of Registrable Shares owned by
such holders, with further successive pro rata allocations among the holders of
Registrable Shares if any such holder of Registrable Shares has requested the
registration of less than all such Registrable Shares it is entitled to
register.
(d) Restrictions on Registrations. The Corporation
may postpone for up to four months the filing or the effectiveness of a
registration statement for a Demand Registration if the Corporation reasonably
believes that such Demand Registration will have a material adverse effect on
any proposal or plan by the Corporation or any of its subsidiaries to engage in
any acquisition of assets (other than in the ordinary course of business) or
any merger, consolidation, tender offer or other significant transaction;
provided that the Corporation shall have the right to so postpone such filing
or effectiveness only one time during any period of fourteen consecutive
months.
3. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Corporation
proposes to register any of its securities under the Securities Act (other than
a Demand Registration) and the registration form to be used may be used for the
registration of Registrable Shares (a "Piggyback
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Registration"), the Corporation will give prompt written notice to all holders
of Registrable Shares of its intention to effect such a registration (which
notice shall be given not less than 30 days prior to the date the registration
statement is to be filed) and will include in such registration all Registrable
Shares with respect to which the Corporation has received written requests for
inclusion therein within 15 days after the receipt of the Corporation's notice.
(b) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf of the
Corporation, and the managing underwriters advise the Corporation in writing
that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering, the
Corporation will include in such registration (i) first, the securities the
Corporation proposes to sell, (ii) second, the Registrable Shares requested to
be included in such registration which in such opinion of such underwriters can
be sold, pro rata among the holders of such Registrable Shares on the basis of
the number of Registrable Shares owned by such holders, with further successive
pro rata allocations among the holders of Registrable Shares if any such holder
of Registrable Shares had requested the registration of less than all such
Registrable Shares it is entitled to register, and (iii) third, other
securities requested to be included in such registration.
(c) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Corporation's securities, and the managing underwriters advise the
Corporation in writing that in their opinion the number of securities requested
to be included in such registration exceeds the number which can be sold in
such offering, the Corporation will include in such registration (i) first, the
securities requested to be included therein by the holders requesting such
registration, (ii) second, the Registrable Shares requested to be included in
such registration which in such opinion of such underwriters can be sold, pro
rata among the holders of such Registrable Shares on the basis of the number of
Registrable Shares owned or deemed to be owned by such holders, with further
successive pro rata allocations among the holders of Registrable Shares if any
such holder of Registrable Shares has requested the registration of less than
all such Registrable Shares it is entitled to register, and (iii) third, other
securities requested to be included in such registration.
(d) Other Registrations. If the Corporation has previously
received a request for a Demand Registration pursuant to Section 2 or has
previously filed a registration statement with respect to Registrable
Securities pursuant to this Section 3, and if such previous request or
registration has not been withdrawn or abandoned, the Corporation will not file
or cause to be effected any other registration of any of its equity securities
or securities convertible or exchangeable into or exercisable for its equity
securities under the Securities Act (except on Form S-8 or any successor form),
whether on its own behalf or at the request of any holder or holders of such
securities, until a period of 6 months has elapsed from the effective date of
such Demand Registration or previous registration, as the case may be.
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4. Holdback Agreements.
(a) Each of the holders of Registrable Shares agrees not to
effect any public sale or distribution of equity securities of the Corporation,
or any securities convertible into or exchangeable or exercisable for such
securities, during the seven days prior to and the 90-day period beginning on
the effective date of any underwritten Demand Registration (except as part of
such underwritten registration), unless the underwriters managing the
registered public offering otherwise agree.
(b) The Corporation agrees (i) not to effect any public sale
or distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 90-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to registrations
on Form S-8 or any successor form), unless the underwriters managing the
registered public offering otherwise agree, and (ii) use all reasonable efforts
to cause each holder of at least 1% (on a fully-diluted basis) of its equity
securities (other than equity securities acquired in a public trading market),
or any securities convertible into or exchangeable or exercisable for such
securities, purchased from the Corporation at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any public sale or distribution of any such securities during such period
(except as part of such underwritten registration, if otherwise permitted),
unless the underwriters managing the registered public offering otherwise
agree.
5. Registration Procedures. Whenever the holders of
Registrable Shares have requested that any Registrable Shares be registered
pursuant to this Agreement, the Corporation will use its best efforts to effect
the registration and the sale of such Registrable Shares in accordance with the
intended method of disposition thereof, and pursuant thereto the Corporation
will as expeditiously as possible:
(a) prepare and file with the Commission a registration
statement with respect to such Registrable Shares and use its best efforts to
cause such registration statement to become and remain effective for such
period as may be reasonably necessary to effect the sale of such securities,
not to exceed nine months;
(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 for a period of not less than nine months (or such longer period as
is necessary for the underwriters in an underwritten offering to sell unsold
allotments) and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition by
the sellers thereof set forth in such registration statement;
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(c) furnish to each seller of Registrable Shares and the
underwriters of the securities being registered such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus)
and such other documents as such seller or underwriters may reasonably request
in order to facilitate the disposition of the Registrable Shares owned by such
seller or the sale of such securities by such underwriters;
(d) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable Shares
owned by such seller (provided, however, that the Corporation will not be
required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this subsection or (ii)
consent to general service of process in any such jurisdiction);
(e) cause all such Registrable Shares to be listed or
authorized for quotation on each securities exchange or automated quotation
system on which similar securities issued by the Corporation are then listed or
quoted;
(f) provide a transfer agent and registrar for all such
Registrable Shares not later than the effective date of such registration
statement;
(g) 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 Shares being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Shares (including, without limitation,
effecting a stock split or a combination of shares);
(h) make available for inspection by the seller of
Registrable Shares, any underwriter participating in any disposition pursuant
to such registration statement, and any attorney, accountant or other agent
retained by any such seller or underwriter, all financial and other records,
pertinent corporate documents and properties of the Corporation, and cause the
Corporation's officers, directors, employees and independent accountants to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement;
(i) notify each seller of such Registrable Shares, promptly
after it shall receive notice thereof, of the time when such registration
statement has become effective or a supplement to any prospectus forming a part
of such registration statement has been filed;
(j) notify each seller of such Registrable Shares of any
request by the Commission for the amending or supplementing of such
registration statement or prospectus or for additional information;
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(k) prepare and file with the Commission, promptly upon the
request of any seller of such Registrable Shares, any amendments or supplements
to such registration statement or prospectus which, in the opinion of counsel
selected by the holders of a majority of the Registrable Shares being
registered, is required under the Securities Act or the rules and regulations
thereunder in connection with the distribution of Registrable Shares by such
seller;
(l) prepare and promptly file with the Commission and
promptly notify each seller of such Registrable Shares of the filing of such
amendment or supplement to such registration statement or prospectus as may be
necessary to correct any statements or omissions if, at the time when a
prospectus relating to such securities is required to be delivered under the
Securities Act, any event shall have occurred as the result of which any such
prospectus or any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances in which they
were made, not misleading;
(m) advise each seller of such Registrable Shares, promptly
after it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the Commission suspending the effectiveness of such
registration statement or the initiation or threatening of any proceeding for
such purpose and promptly use its best efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such stop order should be issued;
(n) at least forty-eight hours prior to the filing of any
registration statement or prospectus or any amendment or supplement to such
registration statement or prospectus, furnish a copy thereof to each seller of
such Registrable Shares and refrain from filing any such registration
statement, prospectus, amendment or supplement to which counsel selected by the
holders of a majority of the Registrable Shares being registered shall have
objected on the grounds that such amendment or supplement does not comply in
all material respects with the requirements of the Securities Act or the rules
and regulations thereunder, unless, in the case of an amendment or supplement,
in the opinion of counsel for the Corporation the filing of such amendment or
supplement is reasonably necessary to protect the Corporation from any
liabilities under any applicable federal or state law and such filing will not
violate applicable laws;
(o) at the request of any seller of such Registrable Shares
in connection with an underwritten offering, furnish on the date or dates
provided for in the underwriting agreement: (i) an opinion of counsel,
addressed to the underwriters and the sellers of Registrable Shares, covering
such matters as such underwriters and sellers may reasonably request and as are
customarily covered by the issuer's counsel in an underwritten offering; and
(ii) a letter or letters from the independent certified public accountants of
the Corporation addressed to the underwriters and the sellers of Registrable
Shares, covering such matters as such underwriters and sellers may reasonably
request and as are customarily covered in accountant's letters in connection
with an underwritten offering; and
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(p) otherwise use its best efforts to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement in accordance with the
intended method of disposition and to make generally available to its security
holders, as soon as reasonably practicable, an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(q) Each holder of Registrable Shares that sells Registrable
Shares pursuant to a registration under this Agreement agrees that in
connection with registration as follows:
(i) Such seller shall cooperate as reasonably
requested by the Corporation with the Corporation in
connection with the preparation of the registration statement,
and for so long as the Corporation is obligated to file and
keep effective the registration statement, shall provide to
the Corporation, in writing, for use in the registration
statement, all such information regarding such seller and its
plan of distribution of the Registrable Shares as may be
reasonably necessary to enable the Corporation to prepare the
registration statement and prospectus covering the Registrable
Shares, to maintain the currency and effectiveness thereof and
otherwise to comply with all applicable requirements of law in
connection therewith.
(ii) During such time as such seller may be engaged
in a distribution of the Registrable Shares, such seller shall
comply with Rules 10b-6 and 10b-7 promulgated under the
Securities Exchange Act and pursuant thereto it shall, among
other things; (x) not engage in any stabilization activity in
connection with the securities of the Corporation in
contravention of such rules; (y) distribute the Registrable
Shares under the registration statement solely in the manner
described in the registration statement; and (z) cease
distribution of such Registrable Shares pursuant to such
registration statement upon receipt of written notice from the
Corporation that the prospectus covering the Registrable
Shares contains any untrue statement of a material fact or
omits a material fact required to be stated therein or
necessary to make the statements therein not misleading.
6. Registration Expenses.
(a) All expenses incident to the Corporation's performance of
or compliance with this Agreement, including, without limitation, all
registration and filing fees, fees of transfer agents and registrars, fees and
expenses of compliance with securities or blue sky laws, fees of the National
Association of Securities Dealers, Inc., printing expenses, messenger and
delivery expenses, and fees and disbursements of counsel for the Corporation
and its independent certified public accountants, underwriters (excluding
discounts and commissions attributable to the Registrable Shares included in
such registration) and other Persons retained by the Corporation (all such
expenses being herein called "Registration Expenses"), will be borne by the
Corporation. In addition, the Corporation will pay its internal expenses
(including, without
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limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance obtained by the Corporation and
the expenses and fees for listing or authorizing for quotation the securities
to be registered on each securities exchange on which any shares of common
stock are then listed or quoted.
(b) In connection with each Demand Registration and Piggyback
Registration effected pursuant to this Agreement, the Corporation will
reimburse the holders of Registrable Shares covered by such registration for
the reasonable fees and disbursements of one counsel for the holders chosen by
the holders of a majority of such Registrable Shares.
7. Indemnification.
(a) The Corporation agrees to indemnify, to the fullest
extent permitted by law, each seller of Registrable Shares, its officers and
directors and each Person who controls such seller (within the meaning of the
Securities Act or the Exchange Act) against all losses, claims, damages,
liabilities and expenses (including, without limitation, attorneys' fees except
as limited by Section 7(c)) caused by any untrue or alleged untrue statement of
a material fact contained in any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
the same are caused by or contained in any information furnished in writing to
the Corporation by such seller expressly for use therein or by such seller's
failure to deliver a copy of the registration statement or prospectus or any
amendments or supplements thereto after the Corporation has furnished such
seller with a sufficient number of copies of the same. In connection with an
underwritten offering, the Corporation will indemnify such underwriters, their
officers and directors and each Person who controls such underwriters (within
the meaning of the Securities Act or the Exchange Act) to the same extent as
provided above with respect to the indemnification of the sellers of
Registrable Shares and in connection therewith the Corporation shall enter into
an underwriting agreement in customary form containing such provisions for
indemnification and contribution as shall be reasonably requested by the
underwriters. The reimbursements required by this Section 7(a) will be made by
periodic payments during the course of the investigation or defense, as and
when bills are received or expenses incurred.
(b) In connection with any registration statement in
which a seller of Registrable Shares is participating, each such seller will
furnish to the Corporation in writing such information and affidavits as the
Corporation reasonably requests for use in connection with any such
registration statement or prospectus and, to the fullest extent permitted by
law, will indemnify the Corporation, its directors and officers and each Person
who controls the Corporation (within the meaning of the Securities Act) against
any losses, claims, damages, liabilities and expenses (including, without
limitation, attorneys' fees except as limited by Section 7(c)) resulting from
any untrue statement of a material fact contained in the registration
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statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, but only to
the extent that such untrue statement or omission is contained in any
information or affidavit so furnished in writing by such seller; provided that
the obligation to indemnify will be several, not joint and several, among such
sellers of Registrable Shares, and the liability of each such seller of
Registrable Shares will be in proportion to; provided further that such
liability will be limited to, the net amount received by such seller from the
sale of Registrable Shares pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to give such
notice shall not limit the rights of such Person) and (ii) unless in such
indemnified party's reasonable judgment (with written advice of counsel) 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 (with written advice of counsel) 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.
(d) Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 7(a) or Section 7(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages, liabilities or expenses (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, liabilities or expenses (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and the indemnified party as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by
such indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the holders or any underwriters or all of them were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in this
Section 7(d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages, liabilities or expenses (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees
or expenses reasonably incurred by such
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indemnified party in connection with investigating or, except as provided in
Section 7(c), defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no holder shall be required to contribute an
amount greater than the dollar amount of the proceeds received by such holder
with respect to the sale of any Registrable Shares. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The holders' obligations in this
Section 7(d) to contribute shall be several in proportion to the amount of
Registrable Shares registered by them and not joint.
(e) The indemnification and contribution 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
transfer of securities. The Corporation also agrees to make such provisions as
are reasonably requested by any indemnified party for contribution to such
party in the event the Corporation's indemnification is unavailable for any
reason.
8. Compliance with Rule 144. In the event that the
Corporation (a) registers a class of securities under Section 12 of the
Exchange Act, (b) issues an offering circular meeting the requirements of
Regulation A under the Securities Act or (c) commences to file reports under
Section 13 or 15(d) of the Exchange Act, then the Corporation shall (i) make
and keep public information available, as those terms are understood and
defined in Rule 144 of the Commission, (ii) file with the Commission in a
timely manner all reports and other documents required of the Corporation under
the Securities Act and the Exchange Act and (iii) at the request of any holder
who proposes to sell securities in compliance with Rule 144, forthwith furnish
to such holder a written statement of compliance with the reporting
requirements of the Commission as set forth in Rule 144 as such rule may be
amended from time to time and make available to the public and such holders
such information as will enable the holders to make sales pursuant to Rule 144.
9. Participation in Underwritten Registrations. No
Person may participate in any registration hereunder which is underwritten
unless such Person (a) agrees to sell such Person's securities on the basis
provided in any underwriting arrangements approved by the Person or Persons
entitled hereunder to approve such arrangements and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents required under the terms of such underwriting arrangements.
10. No Inconsistent Agreements. The Corporation will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the holders of the Registrable Shares
in this Agreement.
11. Adjustments Affecting Registrable Shares. The
Corporation will not take any action, or permit any change to occur, with
respect to its securities which would adversely affect the ability of the
holders of Registrable Shares to include such Registrable Shares in a
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registration undertaken pursuant to this Agreement or which would adversely
affect the marketability of such Registrable Shares in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
12. Remedies. Any Person having rights under any
provision of this Agreement will be entitled to enforce such rights
specifically, to recover damages caused by reason of any breach of any
provision of this Agreement and to exercise all other rights granted by law.
13. Amendments and Waivers. Except as otherwise
expressly provided herein, the provisions of this Agreement may be amended or
waived at any time only by the written agreement of the Corporation and the
holders of 80 percent of the Registrable Shares; provided that any such
amendment or waiver shall apply equally to all holders of Registrable Shares
except to the extent a holder of Registrable Shares adversely affected by
unequal treatment otherwise consents. Any waiver, permit, consent or approval
of any kind or character on the part of any such holders of any provision or
condition of this Agreement must be made in writing and shall be effective only
to the extent specifically set forth in writing.
14. Successors and Assigns. Except as otherwise
expressly provided herein, all covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto,
whether so expressed or not. In addition and whether or not any express
assignment has been made, the provisions of this Agreement which are for the
benefit of purchasers or holders of Registrable Shares are also for the benefit
of, and enforceable by, any subsequent holder of Registrable Shares who
consents in writing to be bound by this Agreement. However, any successor,
assign or holder to have the benefits of this Agreement must at the request of
the Corporation agree to be bound by the terms hereof.
15. Other Registration Rights. Except for the
registration rights granted hereunder, the Corporation will not grant to any
Persons the right to request the Corporation to register any equity securities
of the Corporation, or any securities convertible or exchangeable into or
exercisable for such securities, without the written consent of the holders of
at least two-thirds of the Registrable Shares. Except for registrations
pursuant to registration rights granted to the holders of Registrable Shares
hereunder or registrations of securities by the Corporation, the Corporation
shall not register any equity securities of the Corporation, or any securities
convertible or exchangeable into or exercisable for such securities, without
the written consent of the holders of at least two-thirds of the Registrable
Shares. The Corporation will not include in any Demand Registration any
securities which are not Registrable Shares (for the purposes of Section 2),
without the written consent of the holders of at least a majority of the
Registrable Shares requesting such registration.
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16. Final Agreement. This Agreement constitutes the
final agreement of the parties concerning the matters referred to herein, and
supersedes all prior agreements and understandings.
17. Severability. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
18. Descriptive Heading. The descriptive headings of
this Agreement are inserted for convenience of reference only and do not
constitute a part of and shall not be utilized in interpreting this Agreement.
19. Notices. Any notices required or permitted to be
sent hereunder shall be delivered personally or mailed, certified mail, return
receipt requested, or delivered by overnight courier service to the following
addresses, or such other addresses as shall be given by notice delivered
hereunder, and shall be deemed to have been given upon delivery, if delivered
personally, three business days after mailing, if mailed, or one business day
after delivery to the courier, if delivered by overnight courier service:
If to the holders of Registrable Shares, to the addresses set
forth on the stock record books of the Corporation;
with a copy to (in the case of notices to holders other than
Bace and its transferees):
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxx
20. Governing Law. The validity, meaning and effect of
this Agreement shall be determined in accordance with the laws of the State of
Illinois applicable to contracts made and to be performed in that state.
21. Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute one
instrument. Each party shall receive a duplicate original of the counterpart
copy or copies executed by it and the Corporation.
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14
22. Attorneys' Fees. In the event of any action or suit
based upon or arising out of any actual or alleged breach by any party of any
representation, warranty or agreement in this Agreement, the prevailing party
shall be entitled to recover its reasonable attorneys' fees and expenses of
such action or suit from the other party, in addition to any other relief
ordered by the court.
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This Registration Agreement was executed on the date first set forth
above.
RENTX INDUSTRIES, INC.
By: /s/ XXXXX X. XXXXXXXX
------------------------------------
Xxxxx X. Xxxxxxxx
Vice President
MESIROW CAPITAL PARTNERS VI
By: Mesirow Private Equity
Investments, Inc.,
General Partner
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Xxxxxx X. Xxxxxx
Vice President
THE EDGEWATER PRIVATE EQUITY FUND,
II L.P.
By: Xxxxxx Management, Inc.
By: /s/ X.X. XXXXXX
------------------------------
Xxxxx X. Xxxxxx
President
BACE INVESTMENTS, LLC
By: /s/ XXXXX X. XXXXXXXX
------------------------------
Xxxxx X. Xxxxxxxx
Member
16
AMENDMENT NO. 1
TO
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
RENTX INDUSTRIES, INC.,
MESIROW CAPITAL PARTNERS VI,
THE EDGEWATER PRIVATE EQUITY FUND II, L.P.
AND
BACE INVESTMENTS, LLC
DATED AS OF MAY 15, 1996
This Amendment No. 1 to the Registration Rights Agreement
(this "Amendment"), dated as of June 26, 1997, is by and among RentX
Industries, Inc. ("RentX"), Mesirow Capital Partners VI ("Mesirow"), The
Edgewater Private Equity Fund II, L.P.("Edgewater"), BACE Investments, LLC
("Bace"), Trustees of Xxxxxxxx College ("Xxxxxxxx") and Inroads Capital
Partners, L.P. ("Inroads").
WHEREAS, RentX, Mesirow, Edgewater and Bace have entered into
that certain Registration Rights Agreement, dated as of May 15, 1996 (the
"Registration Rights Agreement");
WHEREAS, Xxxxxxxx, in addition to certain other persons,
became a party to the Registration Rights Agreement on May 29, 1996;
WHEREAS, Inroads became a party to the Registration Rights
Agreement on August 2, 1996;
WHEREAS, the parties hereto desire to enter into this
Amendment in order to amend certain provisions of the Registration Rights
Agreement; and
WHEREAS, the Registration Rights Agreement may be amended by
the consent of the parties hereto;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
respective parties hereto hereby agree as follows:
1. DEFINITIONS. Unless stated otherwise, capitalized
terms used in this Amendment shall have the meanings specified in the
Registration Rights Agreement.
17
2. AMENDMENT TO SECTION 1.1(D). Section 1.1(d) is
hereby amended to read in its entirety as follows:
"(d) "Registrable Shares" means at any time (i) the Purchased
Shares (whether or not such shares have been issued or are
issuable or are issuable upon conversion of the Preferred
Stock or the Series B Preferred); (ii) all shares of Class A
Common Stock into which Series C Preferred Stock, par value
$1.00 per share ("Series C Preferred"), are converted or may
be convertible from time to time (whether or not such shares
have been issued or are issuable or are issuable upon
conversion of the Series C Preferred); (iii) any shares of
Common Stock then outstanding which were issued as, or were
issued directly or indirectly upon the conversion or exercise
of other securities issued as, a dividend or other
distribution with respect to or in replacement of other
Registrable Shares; and (iv) any shares of Common Stock then
issuable directly or indirectly upon the conversion or
exercise of other securities which were issued as a dividend
or other distribution with respect to or in replacement of
other Registrable Shares; provided, that Registrable Shares
shall not include any shares (i) the sale of which has been
registered pursuant to the Securities Act and which shares
have been sold pursuant to such registration or (ii) which
have been sold to the public pursuant to Rule 144 of the
Commission under the Securities Act. For purposes of this
Agreement, a Person will be deemed to be a holder of
Registrable Shares whenever such Person has the then existing
right to acquire such Registrable Shares (by exercise,
conversion or otherwise), whether or not such acquisition has
actually been effected."
3. GOVERNING LAW. This Amendment shall be governed by
and construed in accordance with the internal laws of the State of Illinois
without regard to its conflicts of law doctrine.
4. COUNTERPARTS. This Amendment may be executed in
several counterparts, each of which will be deemed an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Amendment No. 1 to the Registration
Rights Agreement has been duly executed and delivered by the duly authorized
officers of the parties hereto as of the date first above written.
RENTX INDUSTRIES, INC.
By: /s/ XXXXXX X. XXXXXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President - CEO
BACE INVESTMENTS, LLC
By: /s/ XXXXXXX X. XXXXX
-------------------------------
Xxxxxxx X. Xxxxx
Member
MESIROW CAPITAL PARTNERS VI
By: Mesirow Financial Services,
Inc., General Partner
By: /s/ XXXXXX X. XXXXXX
---------------------------
Xxxxxx X. Xxxxxx
Vice President
THE EDGEWATER PRIVATE EQUITY
FUND II, L.P.
By: Xxxxxx Management, Inc.,
General Partner
By: /s/ X.X. XXXXXX
---------------------------
Xxxxx X. Xxxxxx
President
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TRUSTEES OF XXXXXXXX COLLEGE
By: /s/ X.X. XXXXXX
------------------------------
Xxxxx X. Xxxxxx
Authorized Agent
INROADS CAPITAL PARTNERS, L.P.
By: Inroads General Partners, L.P.
General Partner
By: /s/ XXXXXXXX X. XXXXXX
--------------------------
Xxxxxxxx X. Xxxxxx
General Partner
(Signature Page to Amendment No. 1 to
the Registration Rights Agreement)
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