EXHIBIT B
NATIONSRENT, INC.
SERIES B CONVERTIBLE PREFERRED STOCK, $.01 Par Value
PREFERRED STOCK PURCHASE AGREEMENT
PREFERRED STOCK PURCHASE AGREEMENT ("Agreement") dated August 2, 2000, by
and among NationsRent, Inc., a Delaware corporation (the "Company"), and those
purchasers whose names are set forth in Exhibit A (collectively the
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"Purchasers").
RECITALS
WHEREAS, the Company proposes that the Company issue to the Purchasers and
the Purchasers agree to purchase, shares of the Company's Convertible Preferred
Stock, Series B, par value $.01 per share, upon the terms and subject to the
conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
1. Authorization of Stock. The Company will authorize the issue and sale
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of 100,000 shares (the "Shares", such term to include any such shares issued in
substitution therefor pursuant to Section 8) of its Series B Convertible
Preferred Stock, $.01 par value, to be designated as its "Series B Convertible
Preferred Stock" (the "Stock" or the "Preferred Stock"). The relative rights,
preferences and limitations of the Stock, including, without limitation, the
right to convert Shares into shares of the Company's common stock, par value
$.01 per share (the "Common Stock"), will be as set forth in the form of the
Certificate of Designation of the Stock of the Company attached as Exhibit B
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hereto (the "Certificate of Designation"). Certain capitalized terms used in
this Agreement are defined in Section 9; references to a "Schedule" or an
"Exhibit" are, unless otherwise specified, to a Schedule or an Exhibit attached
to this Agreement and references to a "Section" are, unless otherwise specified,
to one of the Sections of this Agreement.
2. Sale and Purchase of Stock.
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2.1 Subject to the terms and conditions herein set forth, the Company
agrees that it will issue to the Purchasers at the First Closing an aggregate of
52,000 shares of Preferred Stock (the "First Preferred Shares") for a purchase
price of $1,000 per share or an aggregate of $52,000,000 (the "First Purchase
Price"). Each Purchaser agrees that it will purchase at the First Closing the
number of shares of Preferred Stock set forth in the first column beside its
name on Exhibit A, for a purchase price of $1,000 per share, and the Company
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agrees that it will issue the shares to the Purchasers at such Closing in such
numbers.
2.2 Subject to the terms and conditions herein set forth, the
Company agrees that it will issue to the Purchasers at the Second Closing an
aggregate of 48,000 shares of Preferred Stock (the "Second Preferred Shares" and
together with the First Preferred Shares, the "Shares") for a purchase price of
$1,000 per share or an aggregate of $48,000,000 (the "Second Purchase Price" and
together with the First Purchase Price, the "Purchase Price"). Each Purchaser
agrees that it will purchase at the Second Closing the number of shares of
Preferred Stock set forth in the second column beside its name on Exhibit A, for
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a purchase price of $1,000 per share, and the Company agrees that it will issue
the shares to the Purchasers at such Closing in such numbers.
3. Closings; Payment of Purchase Price.
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3.1 The sale of the First Preferred Shares to be purchased by the
Purchasers shall take place at the offices of Akerman, Senterfitt & Xxxxxx,
P.A., 000 Xxxx Xxx Xxxx Xxxxxxxxx, 00xx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000,
at 10:00 a.m., local time, at a closing (the "First Closing") on August 2, 2000,
provided the conditions to closing set forth in Section 4 (other than Section
4.13 which shall be satisfied at the Second Closing) have been satisfied or
waived by the party entitled to waive such condition or on such other Business
Day thereafter or prior to such date as may be agreed upon by the Company and
the Purchasers.
3.2 The sale of the Second Preferred Shares to be purchased by the
Purchasers shall take place at the offices of Akerman, Senterfitt & Xxxxxx,
P.A., 000 Xxxx Xxx Xxxx Xxxxxxxxx, 00xx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 at
10:00 a.m., local time, at a closing (the "Second Closing" and together with the
First Closing, the "Closings") on the third Business Day after the conditions to
the Second Closing set forth in Section 4 have been satisfied or waived by the
party entitled to waive such conditions or on such other Business Day thereafter
or prior to such date as may be agreed upon by the Company and the Purchasers.
3.3 The names in which the Company will register the shares of the
Stock to be purchased at the Closings are as set forth in Exhibit A. At each of
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the Closings, the Company will deliver to each Purchaser the Shares to be
purchased by such Purchaser in the form of a single certificate (or such greater
number of certificates representing such Shares as such Purchaser may request)
dated the date of the Closing, and each Purchaser, severally and not jointly,
agrees to deliver to the Company or its order cash in immediately available
funds in the amount of the purchase price for the Shares being purchased by such
Purchaser to an account designated by the Company. If at a Closing the Company
shall fail to tender to the Purchasers the Shares to be purchased by the
Purchasers, as provided above in this Section 3, or any of the conditions
specified in the first paragraph of Section 4 shall not have been fulfilled,
each Purchaser shall, at its election, be relieved of all further obligations
under this Agreement, without thereby waiving any other rights such Purchaser
may have by reason of such failure or such nonfulfillment; provided, however,
that if the First Closing has already occurred, then only the obligation to
proceed with the Second Closing may be relieved, and all other obligations of
the parties hereunder shall remain in effect with respect to the Shares issued
to the Purchasers at the First Closing. If at a Closing, (i) any of the
Purchasers shall fail to tender to the Company the purchase price for the
Shares, as provided above in this Section 3, other than on account of any of the
conditions specified in the first paragraph of Section 4 not having been
fulfilled or on account of the breach by the Company of any of its obligations
under this Agreement, or (ii) if the representations and warranties of any of
the Purchasers contained in Section 6 shall not be true and correct, then the
Company shall, at its election, be relieved of all further obligations under
this Agreement, without thereby waiving any other rights the Company may have by
reason of such failure; provided, however, that if the First Closing has already
occurred, then only the obligation to proceed with the Second Closing may be
relieved, and all other obligations of the parties hereunder shall remain in
effect with respect to the Shares issued to the Purchasers at the First Closing.
If the stockholders of the Company vote on but do not approve the issue and sale
of the Shares to the Purchasers, then the Company shall, at its election, be
relieved of
the obligation to proceed with the Second Closing, in which case all other
obligations of the parties hereunder shall remain in effect with respect to the
Shares issued to the Purchasers at the First Closing.
4. Conditions to Each Closing. Each of the Purchasers' obligation to
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purchase and pay for the Shares to be sold to such Purchaser at each Closing is
subject to the fulfillment, prior to or concurrently with such Closing, of the
following conditions. The obligation of each Purchaser to purchase the First
Preferred Shares at the First Closing shall be subject to the satisfaction or
waiver of all of the conditions set forth below except for the condition in
Section 4.13. The Company's obligation to issue and sell the Shares to the
Purchasers at the First Closing is subject to (i) NR Holdings Limited, a Cayman
Islands company, and NR Investments Limited, a Cayman Islands company, having
executed and delivered to the Company voting agreements in the form of Exhibit C
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and (ii) DB Capital Investors, L.P. and X.X. Xxxxxx Capital Corporation filing a
notification within the meaning of such term in the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the regulations thereunder, 16 C.F.R.
Parts 000-000 (xxx "XXX Xxx"), in connection with this Agreement and any
applicable waiting period under the HSR Act relating to this Agreement having
expired or been terminated. The obligation of each Purchaser to purchase the
Second Preferred Shares at the Second Closing shall be subject to the
satisfaction or waiver of the conditions set forth in Sections 4.1, 4.2, 4.3 and
4.13.
4.1 Representations and Warranties. The representations and
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warranties of the Company contained in Section 5.6 of this Agreement shall be
true and correct when made and at the time of the Closing, except that any
inaccuracy in a number of shares of Common Stock that does not exceed 100,000
shares shall not be deemed to be a breach of the representations contained in
Section 5.6. The other representations and warranties of the Company contained
in this Agreement shall be true and correct when made and at the time of the
Closing, except as affected by the consummation of the transactions contemplated
by this Agreement, and except where the failure of such representations and
warranties to be so true and correct (without giving effect to any limitation as
to "materiality" or "Material Adverse Effect" set forth therein) would not
individually or in the aggregate have a Material Adverse Effect.
4.2 Performance. The Company shall have performed and complied
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with all agreements and conditions contained in this Agreement required to be
performed or complied with by it prior to or at the Closing.
4.3 Compliance Certificate. The Company shall have delivered to the
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Purchasers an Officers' Certificate, dated the date of the Closing, certifying
that the conditions specified in Sections 4.1 and 4.2 have been fulfilled.
4.4 Opinion of Counsel. The Purchasers shall have received the
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favorable opinion of Akerman, Senterfitt & Xxxxxx, P.A., counsel for the
Company, substantially in the form set forth in Exhibit D and dated the date of
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the Closing.
4.5 Certificate of Designation. The Certificate of Designation shall
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have been duly filed under the laws of the State of Delaware, and the Amended
and Restated Certificate of
Incorporation of the Company, as amended by the Certificate of Designation,
shall be in full force and effect, and shall not have been otherwise amended or
modified.
4.6 Registration Rights Agreement. The Purchasers shall have
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received a fully executed counterpart of the Registration Rights Agreement
substantially in the form set out in Exhibit E (the "Registration Rights
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Agreement"), such agreement shall be in full force and effect and no term or
condition thereof shall have been amended, modified or waived.
4.7 No Actions Pending. There shall be no suit, action,
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investigation, inquiry or other proceeding by any Governmental Authority or any
other Person or any other legal or administrative proceeding pending or to the
knowledge of the Company threatened which questions the validity or legality of
the transactions contemplated by this Agreement, or seeks damages in connection
therewith.
4.8 Compliance with Securities Laws. The offering and sale by the
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Company, at or prior to the Closing, of the Shares pursuant to this Agreement
shall have been made in compliance with all applicable requirements of federal
and state securities laws and the Purchasers shall have received evidence
thereof in form and substance reasonably satisfactory to the Purchasers.
4.9 Proceedings and Documents. All corporate and other proceedings in
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connection with the transactions contemplated by this Agreement and all
documents and instruments incident to such transactions shall be reasonably
satisfactory to the Purchasers, and the Purchasers shall have received all such
counterpart originals or certified or other copies of such documents as the
Purchasers or their counsel may reasonably request.
4.10 Reservation of Common Stock. The shares of Common Stock initially
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issuable upon conversion of the Stock shall have been duly authorized and
reserved for issuance upon conversion of the Stock.
4.11 Amended Credit Agreement. The Company, Deutsche Bank Securities,
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Inc., FleetBoston Xxxxxxxxx Xxxxxxxx, Inc. and the other lending institutions
and parties thereto shall have executed the Fifth Amended and Restated Revolving
Credit and Term Loan Agreement substantially in the form of the draft furnished
by the Company to the Purchasers on July 24, 2000, with such changes that the
Company, Deutsche Bank Securities, Inc. and FleetBoston Xxxxxxxxx Xxxxxxxx, Inc.
may have agreed upon, which, to the extent such changes are material, shall be
reasonably satisfactory to each of the Purchasers, and such agreement shall be
in full force and effect.
4.12 Voting Agreements. Persons having aggregate voting power with
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respect to a majority of the voting power of the outstanding shares of Common
Stock shall have executed and delivered to the Purchasers voting agreements in
the form of Exhibit C (along with the voting agreements executed pursuant to the
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first paragraph of Section 4, the "Voting Agreements") and such agreements shall
not have been rescinded, amended or modified and shall be in full force and
effect.
4.13 Stockholder Approval. In connection with the Second Closing only,
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the stockholders of the Company shall have approved the transactions
contemplated hereby in accordance with the requirements of the New York Stock
Exchange.
4.14 HSR Filing. The Company shall have filed a notification within
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the meaning of such term in the HSR Act in connection with this Agreement and
any applicable waiting period under the HSR Act relating to this Agreement shall
have expired or been terminated.
4.15 Second Quarter Results. The Purchasers shall be reasonably
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satisfied that the Company's results for the quarter ended June 30, 2000 when
publicly announced will be consistent with the estimated results previously
disclosed to the Purchasers' representatives.
4.16 Satisfaction of Preemptive Rights. The holders of the Company's
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Series A Convertible Preferred Stock and NR2 Holdings Limited shall have
executed a letter entitled Acknowledgment of Satisfaction of Preemptive Rights
in the form of Exhibit F.
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5. Representations and Warranties of the Company. The Company hereby
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represents and warrants that:
5.1 Organization, Standing, etc. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own and operate
its properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into and perform all of its obligations under this Agreement
and the Registration Rights Agreement, to issue and sell the Shares to be issued
and sold at the Closing (except that the issue and sale of the Second Preferred
Shares shall require the approval of the stockholders of the Company) and to
carry out the transactions contemplated hereby or thereby.
5.2 Subsidiaries. Schedule 5.2 lists as to each Subsidiary of the
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Company on the date of this Agreement (a) its name, (b) the jurisdiction of its
incorporation or organization and (c) the percentage of its issued and
outstanding shares or other ownership interests owned by the Company or by
another Subsidiary of the Company (specifying such other Subsidiary), as the
case may be. Each Subsidiary of the Company is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to own and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted. All the outstanding shares of capital stock of each
Subsidiary of the Company are validly issued, fully paid and nonassessable, and
all such shares indicated in Schedule 5.2 as owned by the Company or by a
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Subsidiary of the Company are so owned beneficially and of record by the Company
or by such Subsidiary, as the case may be, free and clear of any Lien except as
indicated in Schedule 5.2.
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5.3 Qualification. Each of the Company and its Subsidiaries is
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duly qualified and in good standing as a foreign corporation authorized to do
business in each jurisdiction (other than the jurisdiction of its incorporation)
in which the nature of its activities or the character of the properties it owns
or leases makes such qualification necessary and in which the failure so to
qualify
would have a Material Adverse Effect. A "Material Adverse Effect" shall mean any
effect that is or is reasonably likely to be materially adverse to the
properties, business, results of operations or financial condition of the
Company and its Subsidiaries taken as a whole.
5.4 Business; Financial Statements. The Company has delivered to the
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Purchasers complete and correct copies of the audited consolidated balance
sheets of the Company and its Subsidiaries as of December 31, 1999 and December
31, 1998, and the related audited consolidated statements of income,
stockholders' equity and cash flows of the Company and its Subsidiaries for the
years ended December 31, 1999 and 1998. Such audited financial statements are
hereinafter referred to as the "Financial Statements." The Financial Statements
are accompanied by the report of Xxxxxx Xxxxxxxx LLP, which states that the
Financial Statements present fairly, in all material respects, the consolidated
financial position of the Company and its Subsidiaries as of December 31, 1999
and 1998, and the results of their operations and their cash flows for the years
ended December 31, 1999 and 1998 in conformity with GAAP, and that the audit by
such accountants of the Financial Statements has been made in accordance with
generally accepted auditing standards. The Company has also delivered to the
Purchasers complete and correct copies of the unaudited consolidated balance
sheet of the Company and its Subsidiaries as of March 31, 2000, and the related
unaudited consolidated statement of income, stockholders' equity and cash flows
of the Company and its Subsidiaries for the three month period ended on such
date. Such unaudited financial statements are hereinafter referred to as the
"Unaudited Statements." The Financial Statements and the Unaudited Statements
have been prepared in accordance with GAAP consistently applied throughout the
periods involved (except as otherwise specified therein) and present fairly the
financial position of the Company and its Subsidiaries as of the respective
dates specified, and the results of their operations and their cash flows for
the respective periods specified. The Company's results for the quarter ended
June 30, 2000 will be consistent with the estimated results previously disclosed
to the Purchasers' representatives.
5.5 Changes, etc. Since December 31, 1999, except as disclosed in
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Commission Documents and except as set forth on Schedule 5.5, neither the
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Company nor any of the Subsidiaries has sustained any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree which would be material to the Company and the Subsidiaries
taken as a whole, otherwise than as reserved for as disclosed in the Company's
financial statements; and except as disclosed in Commission Documents and except
as set forth on Schedule 5.5, there has not been any change in the capital stock
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of the Company or increase in the long-term debt (other than accretion or
scheduled repayments thereof) of the Company and the Subsidiaries taken as a
whole, or any change which has had a Material Adverse Effect.
5.6 Capital Stock and Related Matters. The authorized capital stock
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of the Company consists of 250,000,000 shares of Common Stock and 5,000,000
shares of Preferred Stock, $.01 par value per share. As of the date hereof,
there are (i) 100,000 shares of Series A Convertible Preferred Stock issued and
outstanding, (ii) 58,352,704 shares of Common Stock issued and outstanding,
(iii) 14,285,714 shares of Common Stock issuable upon conversion of the Series A
Convertible Preferred Stock, (iv) 18,960,074 shares of Common Stock issuable
upon the exercise of outstanding stock options and warrants and upon the
conversion or exchange of outstanding
convertible or exchangeable securities, excluding the Series A Convertible
Preferred Stock, (v) an aggregate of 10,000,000 shares of Common Stock reserved
for issuance under the Company's Second Amended and Restated 1998 Stock Option
Plan, of which 3,676,263 shares remain available for the grant of options and
(vi) 367,500 shares of capital stock of the Company held in the treasury of the
Company. All issued and outstanding shares of Common Stock and Series A
Convertible Preferred Stock have been duly authorized and are validly issued,
fully paid, nonassessable and free of preemptive rights. The Shares, when issued
to the Purchasers in accordance with this Agreement, will be duly authorized,
validly issued, fully paid, nonassessable and free of preemptive rights (except
that the Series A Convertible Preferred Stock's preemptive rights will have been
exercised as set forth in Exhibit F). Except as set forth above and on Schedule
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5.6, as of the date hereof, there are no outstanding securities convertible into
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or exchangeable for any shares of capital stock of the Company or any of its
Subsidiaries, or any outstanding rights (either preemptive or other) to
subscribe for or to purchase, or any outstanding options for the purchase of, or
any agreements providing for the issuance (contingent or otherwise) of, or any
outstanding calls, commitments or claims of any character relating to, any
capital stock of the Company or any of its Subsidiaries or any stock or
securities convertible into or exchangeable for any capital stock of the Company
or any of its Subsidiaries. Except as set forth on Schedule 5.6, as of the date
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hereof, neither the Company nor any of its Subsidiaries is subject to any
obligation (contingent or otherwise) to repurchase or otherwise acquire or
retire any shares of its capital stock or any convertible securities, rights or
options of the type described in the preceding sentence. Neither the Company
nor any of its Subsidiaries is a party to, or has knowledge of, any agreement
restricting the transfer of any shares of the Company's capital stock which
would affect the transferability of the Common Stock issuable upon conversion of
the Stock. Except as set forth on Schedule 5.6, as of the date hereof, the
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Company is not a party to or bound by any agreement or commitment pursuant to
which the Company is or could be required to register any securities under the
Securities Act of 1933.
5.7 Tax Returns and Payments. The Company and each of the
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Subsidiaries have filed all material federal, state, local and foreign income,
payroll, franchise and other tax returns required to be filed (after giving
effect to extensions) and have paid all taxes shown as due thereon, all such tax
returns are true, complete and accurate in all material respects, and there is
no tax deficiency that has been, or to the knowledge of the Company is likely to
be, asserted against the Company, any of the Subsidiaries or any of their
properties or assets that would result in a Material Adverse Effect, except for
taxes that are being contested in good faith by appropriate proceedings and with
respect to which the Company has established adequate reserves in accordance
with United States generally accepted accounting principles.
5.8 Indebtedness of the Company. Schedule 5.8 correctly describes all
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secured and unsecured Indebtedness of the Company and its Subsidiaries (other
than intercompany items) outstanding, or for which the Company or one of its
Subsidiaries has commitments, which is individually in excess of $5,000,000
("Significant Indebtedness") (excluding operating leases), as of the date set
forth on Schedule 5.8. Neither the Company nor any of its Subsidiaries is in
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default with respect to any Indebtedness or any instrument or agreement relating
thereto, nor has any event occurred (i) that with the giving of notice or the
lapse of time or both would constitute a default thereunder, or (ii) that has
given or that with the giving of notice or the lapse of time or both would give
rise to a right of termination, amendment, cancellation or acceleration of any
right or obligation
of the Company or any of its Subsidiaries thereunder, or to a loss of any
material benefit to which the Company or any of its Subsidiaries is entitled
thereunder, except for any default, termination, amendment, cancellation,
acceleration or loss of material benefit related to Indebtedness other than
Significant Indebtedness as would not, either in any case or in the aggregate,
have a Material Adverse Effect.
5.9 Title to Properties; Liens. The Company and each of the
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Subsidiaries have good and marketable title to all real property (other than
property which is leased) material to the conduct of the business of the Company
and the Subsidiaries, taken as a whole, and good and marketable title to all
personal property (other than property which is leased) material to the conduct
of the business of the Company and the Subsidiaries, taken as a whole, in each
case free and clear of all liens, encumbrances and defects except such as are
described on Schedule 5.9 or such as do not in the aggregate have a Material
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Adverse Effect; and any real property and buildings held under lease by the
Company and the Subsidiaries, material to the conduct of the business of the
Company and the Subsidiaries, taken as a whole, are held by them under valid,
subsisting and enforceable leases with such exceptions as are described on
Schedule 5.9 and except for such other exceptions as do not have a Material
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Adverse Effect.
5.10 Litigation, etc. There is no action, proceeding or investigation
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pending or (to the knowledge of the Company) threatened (or any basis therefor
known to the Company) which questions the validity of this Agreement, the Shares
or any action taken or to be taken pursuant to this Agreement, the Shares or the
Registration Rights Agreement. Other than as set forth on Schedule 5.10 and as
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disclosed in Commission Documents, there are no legal or governmental
proceedings pending to which the Company or any of the Subsidiaries is a party
or of which any property of the Company or the Subsidiaries is the subject,
which if determined adversely to the Company or any of the Subsidiaries, would
individually or in the aggregate have a Material Adverse Effect; and, to the
Company's knowledge, no such proceedings which would in the aggregate have a
Material Adverse Effect are threatened or contemplated by governmental
authorities or threatened by others.
5.11 Compliance with Other Instruments, etc. Neither the Company nor
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any of its Subsidiaries is in violation of any term of its certificate or
articles of incorporation, by-laws or other organizational document, and neither
the Company nor any of its Subsidiaries is in violation of any term of any
agreement or instrument to which it is a party or by which it is bound or any
term of any applicable law, ordinance, rule or regulation of any Governmental
Authority or any term of any applicable order, judgment or decree of any court,
arbitrator or Governmental Authority, the consequences of which violation could
reasonably be expected to have a Material Adverse Effect. Except as set forth
on Schedule 5.11, the compliance by the Company with all of the provisions of
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this Agreement and the Registration Rights Agreement, the execution, delivery
and performance by the Company of this Agreement and the Registration Rights
Agreement, the issuance by the Company of the Common Stock upon the conversion
of the Shares, and the compliance with the terms of the Certificate of
Designation will not conflict with or result in a breach or violation of any of
the terms and provisions of, or constitute a default (or an event that with the
giving of notice or the lapse of time or both would constitute a default) under,
or give rise to a right of termination, amendment, cancellation or acceleration
of any right or obligation of the Company or any of its
Subsidiaries under, or give rise to a loss of any material benefit to which the
Company or any of its Subsidiaries is entitled under, or require any consent,
approval or authorization under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the Subsidiaries is
bound or to which any of the property or assets of the Company or any of the
Subsidiaries is subject, or constitute a Repayment Event thereunder, nor will
such actions result in any violation of the provisions of the certificate or
articles of incorporation or bylaws of the Company or any of the Subsidiaries or
any statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of the Subsidiaries or any
of their properties except in each case as would not, individually or in the
aggregate have a Material Adverse Effect. Except as set forth on Schedule 5.11,
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the execution, delivery and performance by the Company of this Agreement and the
transactions contemplated hereby will not subject the Company to or accelerate
any obligation to make payments to any Person.
5.12 Governmental Consents, etc. Except with respect to any filings,
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approvals or authorizations required under the HSR Act, no consent, approval or
authorization of, or declaration or filing with, any Governmental Authority on
the part of the Company is required for the valid execution and delivery of this
Agreement, the valid offer, issue, sale and delivery of the Shares pursuant to
this Agreement or the valid issue and delivery of shares of Common Stock
issuable upon conversion of the Stock. Except for (a) applicable state
securities or blue sky laws, and (b) consents, approvals, filings or notices
that will be given or made at or prior to the time of the Closing, neither the
Company nor any of its Subsidiaries is required to obtain any consent, approval
or authorization of, or to make any declaration or filing with, any Governmental
Authority as a condition to the valid execution, delivery or performance of the
Registration Rights Agreement or the consummation of the transactions
contemplated thereby.
5.13 Offering of Securities. Neither the Company nor any Person
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acting on its behalf has offered the Stock or any similar securities of the
Company to, or solicited any offers to buy any thereof from, or otherwise
approached or negotiated with respect thereto with, any Person or Persons other
than the Purchasers in such manner as would subject the offering, issuance or
sale of any of the Stock to the provisions of Section 5 of the Securities Act.
Neither the Company nor any Person acting on behalf of the Company has taken or
will take any action which would subject the offering, issuance or sale of any
of the Stock to the provisions of Section 5 of the Securities Act.
5.14 Certain Fees. Except for fees payable to the Purchasers or
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their designees pursuant to Section 10 of this Agreement, no broker's or
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finder's fees or commissions will be payable by the Company with respect to the
transactions contemplated by this Agreement and the Registration Rights
Agreement, and the Company hereby agrees to indemnify the Purchasers against and
agrees that it will hold the Purchasers harmless from any claim, demand or
liability for broker's or finder's fees alleged to have been incurred at the
instance of the Company or any Person acting on behalf of or at the request of
the Company or any agent of the Company in connection with any of the
transactions contemplated by this Agreement and the Registration Rights
Agreement, and from any expenses, including reasonable legal fees, arising in
connection with any such claim, demand or liability.
5.15 Investment Company Act. The Company is not an "investment
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company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
5.16 Disclosure. None of the Company's Annual Report on Form 10-K
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for the year ended December 31, 1999, each document filed by the Company with
the Securities and Exchange Commission pursuant to the Securities Exchange Act
of 1934 (the "Exchange Act") since the Annual Report on Form 10-K for the year
ended December 31, 1999 or the Company's Registration Statement on Form S-3
filed with the Securities and Exchange Commission on October 7, 1999, contains
(in each case, as of its date) any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements contained
therein, in light of the circumstances under which they are made, not
misleading.
5.17 Enforceability. This Agreement and the Registration Rights
--------------
Agreement have been duly authorized and when validly executed and delivered by
the Company (assuming the due authorization, execution and delivery thereof by
the other parties thereto) will constitute the valid and binding obligations of
the Company, enforceable in accordance with their respective terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws relating to or affecting enforcement of
creditors' rights generally, or by general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
5.18 Integration. Neither the Company nor any affiliate (as such
-----------
term is defined in Rule 501(b) under the Securities Act) has, directly or
through any agent, sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the Securities Act) which
is or will be integrated with the sale of the Shares, in a manner that would
require the registration of the Shares under the Securities Act.
5.19 Manipulation. Except as set forth on Schedule 5.19, prior to
------------ -------------
the date hereof, neither the Company nor any of its Affiliates has taken any
action which is designed to or which has constituted or which might have been
expected to cause or result in stabilization or manipulation of the price of any
security of the Company in connection with the sale of the Shares.
5.20 Intellectual Property. The Company and the Subsidiaries own or
---------------------
possess, or can acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to carry on the
business now operated by them, and neither the Company nor any of the
Subsidiaries has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company or any of
the Subsidiaries therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly
or in the aggregate, would result in a Material Adverse Effect.
5.21 Government Licenses. The Company and the Subsidiaries possess
-------------------
such permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, except where the failure to so possess such
Government Licenses would not, singly or in the aggregate, have a Material
Adverse Effect; the Company and the Subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have, singly or
in the aggregate, a Material Adverse Effect; and neither the Company nor any of
the Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
5.22 Environmental Laws. Except as described on Schedule 5.22 or
------------------ -------------
except as would not, singly or in the aggregate, result in a Material Adverse
Effect: (a) neither the Company nor any of the Subsidiaries is in violation of
any federal, state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (b) neither the Company nor any of the Subsidiaries is
lacking any permits, authorizations and approvals required under any applicable
Environmental Laws or are in violation of the requirements of such Environmental
Laws, (c) there are no pending or, to the best knowledge of the Company,
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of the Subsidiaries and (d) to the knowledge of the Company there
are no events or circumstances that might reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against or affecting the
Company or any of the Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
5.23 Insurance. Neither the Company nor any Subsidiary has received
---------
notice from any insurer providing insurance coverage for the Company and the
Subsidiaries or agent of such insurer that capital improvements or other
expenditures will have to be made in order to continue present insurance
coverage, except such as could not reasonably be expected, singularly or in the
aggregate, to have a Material Adverse Effect.
5.24 Internal Controls. The Company and the Subsidiaries maintain
-----------------
a system of internal accounting controls sufficient to provide reasonable
assurances that (a) transactions are
executed in accordance with management's general or specific authorization; (b)
transactions are recorded as necessary (i) to permit preparation of financial
statements in conformity with generally accepted accounting principles and (ii)
to maintain accountability for assets; (c) access to assets is permitted only in
accordance with management's general or specific authorization; and (d) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
material differences; except as described on Schedule 5.24 and except where the
-------------
failure to so maintain such system could not reasonably be expected, singularly
or in the aggregate, to have a Material Adverse Effect.
5.25 ERISA. Neither the Company nor any of the Subsidiaries has
-----
violated any provisions of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or the rules and regulations promulgated thereunder,
except for such violations which, singly or in the aggregate, would not have a
Material Adverse Effect. If any plan subject to ERISA is adopted, the execution
and delivery of this Agreement and the sale of the Shares will not involve any
non-exempt prohibited transaction within the meaning of Section 406 of ERISA or
Section 4975 of the Internal Revenue Code of 1986, as amended.
5.26 No Liabilities. Neither the Company nor any of its
--------------
Subsidiaries has any liabilities or obligations (direct or indirect, contingent
or absolute, matured or unmatured) of any nature whatsoever, whether arising out
of contract, tort, statute or otherwise ("Liabilities"), except (i) as reflected
in the notes to the Financial Statements for the year ended December 31, 1999
and not heretofore discharged, (ii) as reflected or reserved against in the
unaudited balance sheet of the Company at March 31, 2000 included in the
Company's Form 10-Q for the quarter ended March 31, 2000 and not heretofore
discharged, (iii) Liabilities incurred in the ordinary course of business since
March 31, 2000, (iv) contractual liabilities incurred in the ordinary course of
business, (v) Liabilities incurred in connection with any acquisition of another
business entity made by the Company after the date hereof, (vi) other
Liabilities that do not, singly or in the aggregate, have a Material Adverse
Effect, (vii) as disclosed in Commission Documents or (viii) as set forth in
Schedule 5.26.
-------------
6. Representations and Warranties of the Purchasers. Each Purchaser
------------------------------------------------
hereby severally and not jointly represents and warrants as to itself and not as
to the other Purchasers as follows:
6.1 Investment Representations.
--------------------------
(a) Each Purchaser understands that neither the Shares nor any
Common Stock issuable upon conversion, if any, of the Shares have been
registered under the Securities Act and that the certificates for the
Shares and such Common Stock will bear a legend to that effect, based in
part upon its representations contained in this Agreement.
(b) NR2 Holdings Limited is acquiring the Shares for its own
account and/or for the account of Affiliates of Investcorp S.A.
("Investcorp") and certain other international investors with whom
Investcorp has administrative relationships and who have acquired or may
acquire equity interests in such Purchaser. Each other Purchaser is
acquiring the Shares for its account and/or for the account of its
Affiliates. None of the Purchasers is acquiring the Shares with a view
toward distribution in a manner which would
violate the Securities Act. None of the Purchasers, nor Investcorp, nor any
Person acting on their behalf has taken or will take any action in
connection with the transactions contemplated by this Agreement or the
offering, sale or issuance of any equity interests in any Purchaser which
would subject the offering, issuance or sale of the Shares to the
provisions of Section 5 of the Securities Act.
(c) NR2 Holdings Limited represents that by reason of the
business or financial experience of Investcorp and its Affiliates, and the
business or financial experience of each of the other international
investors who have acquired or may acquire equity interests in such
Purchaser, such Purchaser and its shareholders have the capacity to protect
their own interests in connection with the transaction contemplated in this
Agreement. Each other Purchaser represents that by reason of its and its
Affiliates' business or financial experience, such Purchaser and its
shareholders, if any, have the capacity to protect their own interests in
connection with the transaction contemplated in this Agreement.
(d) Each Purchaser has been given access to all Company
documents, records, and other information, and has had adequate opportunity
to ask questions of, and receive answers from, the Company's officers,
employees, agents, accountants, and representatives, concerning the
Company's business, operations, financial condition, assets, liabilities,
and other matters considered by it as relevant to its investment in the
Shares.
6.2 No Brokers. Each Purchaser represents and warrants to the
----------
Company that no broker's or finder's fees or commissions will be payable by such
Purchaser with respect to the transactions contemplated by this Agreement and
the Registration Rights Agreement, and each Purchaser hereby agrees to indemnify
and hold the Company harmless from any claim, demand or liability for broker's
or finder's fees alleged to have been incurred at the instance of such
Purchaser, its Affiliates or agents or any Person acting on behalf of or at the
request of such Purchaser, its Affiliates or agents.
6.3 Compliance with Laws. Each Purchaser will comply with all filing
--------------------
and other reporting obligations under Sections 13 and 16(a) of the Exchange Act
which shall be applicable to such Purchaser with respect to the Shares and to
the Common Stock issuable or issued on conversion of the Shares, it being
understood that this Section shall be deemed satisfied if such Purchaser acts in
good faith and with the advice of legal counsel with respect to such filings and
reporting.
6.4 Power and Authority; Enforceability. Each of the Purchasers has
-----------------------------------
all requisite power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. Each of the Purchasers has taken all actions necessary to
authorize its execution and delivery of this Agreement, the performance of its
obligations hereunder and the consummation of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by each of the
Purchasers and constitutes a legal, valid and binding obligation of it,
enforceable against it in accordance with its terms (except as enforceability
may be limited by applicable bankruptcy, insolvency or similar laws). Each
Purchaser has sufficient financial means and ability to deliver the purchase
price for the Shares to be purchased by it at each Closing.
6.5 HSR Act. NR2 Holdings Limited warrants and represents that it
-------
is not required to file a notification within the meaning of such term in the
HSR Act, at any time in connection with its execution and delivery of this
Agreement and the conclusion of the transactions contemplated hereby.
6.6 No Other Representations; No Limitation. Each Purchaser
---------------------------------------
acknowledges that, in connection with the acquisition of the Shares, no
representations or warranties of any type or description have been made to such
Purchaser by any Person with regard to the Company, any of its Subsidiaries, any
of their respective businesses, properties or prospects or the acquisition of
the Shares contemplated herein, other than the representations and warranties
set forth in Section 5. Nothing in this Section 6 shall limit the
representations and warranties of the Company set forth in Section 5 or the
rights of the Purchasers to rely thereon.
7. Affirmative Covenants. The Company covenants that from and after the
---------------------
date of this Agreement through the Closing and thereafter, but, in the cases of
Sections 7.1, 7.2 and 7.10, only so long as the holders of Shares are entitled
under the Certificate of Designation to elect as a class at least one member of
the Company's Board of Directors:
7.1 Exchange Act and Securities Act Filings. The Company will
---------------------------------------
deliver to each Purchaser which, together with its Affiliates (or together with
Investcorp and their respective Affiliates in the case of NR2 Holdings Limited),
have voting and dispositive power with respect to at least 20,000 shares of
Preferred Stock, within three Business Days of their filing with the Securities
and Exchange Commission, all Commission Documents filed by it with the
Securities and Exchange Commission.
7.2 Certificates; Other Information. The Company will deliver to
-------------------------------
each Purchaser which, together with its Affiliates (or together with Investcorp
and their respective Affiliates in the case of NR2 Holdings Limited), have
voting and dispositive power with respect to at least 20,000 shares of Preferred
Stock: (a) promptly upon receipt thereof, copies of all final reports submitted
to the Company or any of its Subsidiaries by independent certified public
accountants in connection with each annual, interim or (but only if the holders
of the Shares are then entitled under the Certificate of Designation to elect as
a class at least one member of the Company's Board of Directors) special audit
of the books of the Company or any of its Subsidiaries made by such accountants,
including, without limitation, any final comment letter submitted by such
accountants to management in connection with their annual audit; (b) promptly
upon their becoming available, copies of all financial statements, reports,
notices and proxy statements sent or made available generally by the Company to
all of its security holders in their capacity as such or by any Subsidiary of
the Company to its security holders; (c) the monthly financial package of
information of the Company internally prepared by the Company for distribution
to its senior management, within five (5) Business Days after such information
has been distributed internally in final form; and (d) such additional
information available from the Company as such Purchaser may reasonably request
from time to time.
7.3 Books and Records. The Company will, and will cause each of
-----------------
its Subsidiaries to keep proper books of record and account in which entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities.
7.4 Reservation of Common Stock. The Company will at all times
---------------------------
reserve and keep available, solely for issuance and delivery upon conversion of
the Stock, the number of shares of Common Stock from time to time issuable upon
conversion of all shares of the Stock at the time outstanding. All shares of
Common Stock issuable upon conversion of the Stock shall be duly authorized and,
when issued upon such conversion, shall be validly issued, fully paid and non-
assessable.
7.5 Availability of Information. The Company will comply with the
---------------------------
reporting requirements of Sections 13 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and will comply with all other public
information reporting requirements of the Securities and Exchange Commission
(including Rule 144 promulgated by the Securities and Exchange Commission under
the Securities Act) from time to time in effect and relating to the availability
of an exemption from the Securities Act for the sale of any Restricted
Securities. The Company will also reasonably cooperate with each holder of any
Restricted Securities in supplying such information as may be necessary for such
holder to complete and file any information reporting forms presently or
hereafter required by the Securities and Exchange Commission as a condition to
the availability of an exemption from the Securities Act for the sale of any
Restricted Securities.
7.6 Stockholder Approval. As soon as practicable following the
--------------------
date hereof, the Company will take all action necessary in accordance with the
Exchange Act, Delaware law and its certificate of incorporation and by-laws to
obtain the approval of its stockholders of the transactions contemplated hereby
in accordance with the requirements of the New York Stock Exchange (the
"Stockholder Approval"). Each Purchaser covenants that it shall cooperate and
assist the Company as reasonably required to obtain such stockholder approval
and that it shall vote to approve the transactions contemplated hereby.
7.7 No Conversion Price Adjustment Events Prior to Second Closing.
-------------------------------------------------------------
The Company shall not take any action prior to the consummation of the Second
Closing which would entitle the holders of the Shares to an adjustment of the
conversion price of the Shares pursuant to the Certificate of Designation.
7.8 Appointment of Purchaser Designees to the Board.
-----------------------------------------------
(a) Promptly following the First Closing, the Company's Board of
Directors will increase the size of the Company's Board of Directors from
eight to ten and will appoint Xxxxxx X. Xxxxx, as the designee of DB
Capital Investors, L.P. pursuant to the voting agreement contained in the
Preferred Stockholders Agreement among the Purchasers and the holders of
the Series A Convertible Preferred Stock of the Company dated the date
hereof (the "Purchasers' Voting Agreement") and Xxxxx Xxxxx as the designee
of X.X. Xxxxxx Capital Corporation pursuant to the Purchasers' Voting
Agreement to the Company's
Board of Directors to fill the vacancies created thereby, to serve until
the next annual meeting of the stockholders of the Company and until their
successors are elected. In the event that either of the foregoing directors
or any other director elected by the holders of the Shares (the "Series B
Directors") is unable to attend a meeting of the Company's Board of
Directors, then the Purchaser or Purchasers who designated such director
pursuant to the Purchasers' Voting Agreement shall have the right to have a
representative selected by it or them attend such meeting as a guest
without voting rights in place of the director unable to attend such
meeting; provided, however, that any such representative shall be
reasonably acceptable to the Company, that such representative shall have
signed a confidentiality agreement in a form reasonably satisfactory to the
Company concerning Company information provided in connection with such
meeting and that such a Purchasers' representative shall not attend any two
board of directors meetings in succession. At all times during which the
holders of the Preferred Stock are entitled to elect at least one member of
the Company's Board of Directors, the Certificate of Incorporation or
Bylaws of the Company will provide for indemnification of the Company's
directors to the fullest extent permitted under Delaware law. The
Purchasers shall have the right to designate two directors to the Company's
Board of Directors for the period following the First Closing to the date
of the earlier to occur of either the Second Closing or the termination of
this Agreement in accordance with its terms, provided the Purchasers,
Investcorp and their Affiliates have voting or dispositive power with
respect to at least 52,000 Shares. If at the end of such period the
Purchasers, Investcorp and their Affiliates do not have voting or
dispositive power with respect to at least 66,000 Shares, then the two
directors previously designated by the Purchasers may be removed by vote of
the Board of Directors, after which the holders of the Preferred Stock may
elect one director if they are entitled to do so pursuant to clause
7(ii)(ii) or 7(ii)(iii) of the Certificate of Designation.
(b) In the event that any of the directors elected by NR
Holdings Limited and NR Investments Limited pursuant the Certificate of
Designation, as amended, for the Series A Convertible Preferred Stock (the
"Series A Directors") is unable to attend a meeting of the Company's Board
of Directors, then NR2 Holdings Limited shall have the right to have a
representative selected by it attend such meeting as a guest without voting
rights in place of the director or directors unable to attend such meeting;
provided, however, that any such representative shall be reasonably
acceptable to the Company, that such representative shall have signed a
confidentiality agreement in a form reasonably satisfactory to the Company
concerning Company information provided in connection with such meeting and
that such a Purchasers' representative shall not attend any two board of
directors meetings in succession.
7.9 Conduct of Business Pending First Closing. The Company will not
-----------------------------------------
take any action prior to the First Closing without the consent of the Purchasers
if such action would require the consent or vote of the Purchasers or the
holders of the Stock pursuant to this Agreement, the Certificate of Designation
or the Registration Rights Agreement if taken after the First Closing.
7.10 Executive Committee. The Company agrees that it will not
-------------------
rescind, amend or modify the resolution adopted on July 20, 1999 modifying the
authority of the Executive Committee without the unanimous consent of the
members of the Company's Board of Directors.
7.11 Voting Agreements. The Company agrees that it will not permit any
-----------------
shares of Common Stock that are subject to a Voting Agreement to be transferred,
prior to the time the Stockholder Approval is obtained, unless the transferee
has executed and delivered a Voting Agreement to the Purchasers. The Company
further agrees that it will cause all shares that are subject to a Voting
Agreement to be voted pursuant to the proxies given thereby in accordance with
the instructions set forth therein.
7.12 Preferred Stockholders Agreement. The Company agrees that it will
--------------------------------
place on the certificates representing shares of capital stock of the Company
that are subject to the Preferred Stockholders Agreement the legend required by
such agreement.
8. Registration, Transfer and Substitution of Certificates for Stock.
-----------------------------------------------------------------
8.1 Stock Register; Ownership of Stock.
----------------------------------
(a) The Company will keep at its principal office a register in
which the Company will provide for the registration of the Stock and the
registration of transfers or conversion of the Stock. The Company may
treat the Person in whose name any of the Shares or shares issued upon
conversion of any of the Stock are registered on such register as the owner
thereof and the Company shall not be affected by any notice to the
contrary. All references in this Agreement to a "holder" of any Shares or
shares issued upon conversion of any of the Stock shall mean the Person in
whose name such Shares or shares issued upon conversion of any of the Stock
are at the time registered on such register.
(b) Upon the surrender of any certificate for Stock, properly
endorsed, for registration of transfer or for conversion at the office of
the Company maintained pursuant to subdivision (a) of this Section 8.1, the
Company at its expense will (subject to compliance with Section 8.2 hereof,
if applicable) execute and deliver to or upon the order of the holder
thereof (i) a new certificate or certificates for the same aggregate number
of Shares of Stock less the number of Shares of Stock being converted or
transferred, if any, in the name of such holder or as such holder (upon
payment by such holder of any applicable transfer taxes) may direct, (ii) a
certificate or certificates for the number of shares of Common Stock to be
issued upon conversion of the Shares of Stock so surrendered, if
applicable, in the name of such holder or as such holder (upon payment by
such holder of any applicable transfer taxes) may direct, and (iii) a new
certificate or certificates for the number of Shares of Stock transferred,
if applicable, in the name of the transferee (upon payment by such holder
of any applicable transfer taxes).
8.2 Replacement of Certificates. Upon receipt of evidence
---------------------------
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of any certificate representing shares of Stock or Common Stock
issued upon the conversion of Shares of Stock and, in the case of any such loss,
theft or destruction of any certificate representing shares of Stock or Common
Stock issued upon the conversion of Shares of Stock held by a Person other than
the Purchasers, upon delivery of
indemnity reasonably satisfactory to the Company in form and amount or, in the
case of any such mutilation, upon surrender of such certificate representing
shares of Stock or Common Stock issued upon the conversion of Shares of Stock
for cancellation at the office of the Company maintained pursuant to subdivision
(a) of Section 8.1 hereof, the Company at its expense will execute and deliver,
in lieu thereof, a new certificate representing shares of Stock or Common Stock
of like tenor.
8.3 Restrictive Legends. Except as otherwise permitted by this
-------------------
Section 8, each certificate for Stock (including each certificate for Stock
issued upon the transfer of any certificate for Stock) shall be stamped or
otherwise imprinted with a legend in substantially the following form:
"The shares represented by this Certificate and any shares
of Common Stock issuable upon conversion of any such shares
have not been registered under the Securities Act of 1933
and may not be transferred in the absence of such
registration or an exemption therefrom under such Act. Such
shares and any such shares of Common Stock may be
transferred only in compliance with the conditions specified
in the Preferred Stock Purchase Agreement dated August 2,
2000 between NationsRent, Inc. (the "Company") and the
purchasers identified therein. A complete and correct copy
of such Agreement is available for inspection at the
principal office of the Company and will be furnished
without charge to the holder of such shares upon written
request."
Except as otherwise permitted by this Section 8, each certificate for Common
Stock issued upon the conversion of any of the Stock, and each certificate
issued upon the transfer of any such Common Stock, shall be stamped or otherwise
imprinted with a legend in substantially the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 and may not be
transferred in the absence of such registration or an
exemption therefrom under such Act. Such shares may be
transferred only in compliance with the conditions specified
in the Preferred Stock Purchase Agreement dated August 2,
2000 between NationsRent, Inc. (the "Company") and the
purchasers identified therein. A complete and correct copy
of such Agreement is available for inspection at the
principal office of the Company and will be furnished
without charge to the holder of such shares upon written
request."
8.4 Notice of Proposed Transfer; Opinions of Counsel. Prior to any
------------------------------------------------
transfer of any Restricted Securities which are not registered under an
effective registration statement under the Securities Act, the holder thereof
will give written notice to the Company of such holder's intention to effect
such transfer and to comply in all other respects with this Section 8.4. Each
such notice shall describe the manner and circumstances of the proposed transfer
and shall be accompanied by an opinion of counsel for such holder, which counsel
and opinion shall each be reasonably satisfactory to the Company, that the
proposed transfer may be effected without registration of such shares of
Restricted Securities under the Securities Act. Such holder shall thereupon be
entitled to transfer such shares in accordance with the terms of the notice
delivered by such holder to the Company. Each certificate representing such
shares issued upon or in connection with such transfer shall bear the
restrictive legends required by Section 8.3, unless the related restrictions on
transfer shall have ceased and terminated as to such shares pursuant to Section
8.5 hereof.
8.5 Termination of Restrictions. The restrictions imposed by this
---------------------------
Section 8 upon the transferability of Restricted Securities shall cease and
terminate as to any particular Restricted Securities when such restrictions are
no longer required in order to insure compliance with the Securities Act.
Whenever such restrictions shall cease and terminate as to any Restricted
Securities, the holder thereof shall be entitled to receive from the Company,
without expense (other than applicable transfer taxes, if any), new certificates
for such securities of like tenor not bearing the applicable legends required by
Section 8.3 hereof.
9. Definitions.
-----------
9.1 Certain Defined Terms. As used in this Agreement the following
---------------------
terms have the following respective meanings:
Affiliate: Shall have the meaning attributed thereto under Rule 12b-2
under the Exchange Act.
Business Day: Any day except a Saturday, a Sunday, or any day on which
banking institutions in New York, New York are required or authorized by law or
other governmental action to be closed.
Certificate of Designation: As defined in Section 1 of this Agreement.
Closing: As defined in Section 3 of this Agreement.
Closing Date: The date of the Closing.
Code: The Internal Revenue Code of 1986, as amended from time to time.
Commission Document: All registration statements, proxy statements,
reports and other documents (and all amendments thereto) filed by the Company
under the Securities Act or the Exchange Act.
Common Stock: As defined in Section 1 of this Agreement.
Company: As defined in the introduction to this Agreement.
Exchange Act: At any time, the Securities Exchange Act of 1934, as
amended.
Financial Statements: As defined in Section 5.4 of this Agreement.
First Closing: As defined in Section 3 of this Agreement.
First Closing Date: The date of the First Closing.
First Preferred Shares: As defined in Section 2 of this Agreement.
GAAP: Generally accepted accounting principles set forth in the
Opinions of the Accounting Principles Board of the American Institute of
Certified Public Accountants and in statements by the Financial Accounting
Standards Board or in such other statement by such other entity as may be
approved by a significant segment of the accounting profession; and the
requisite that such principles be applied on a consistent basis shall mean that
the accounting principles observed in a current period are comparable in all
material respects to those applied in a preceding period.
Governmental Authority: Any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
Indebtedness: With respect to any Person, at a particular time (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property, (b) the face amount of all letters of credit issued for the
account of such Person and, without duplication, all drafts drawn thereunder,
(c) all liabilities secured by any Lien on any property owned by such Person, to
the extent attributable to such Person's interest in such property, even though
such Person has not assumed or become liable for the payment thereof, (d) lease
obligations of such Person which, in accordance with GAAP, should be
capitalized, and (e) all guarantees by such Person of any such indebtedness,
letters of credit, drafts, liabilities or lease obligations of any other Person;
but excluding trade and other accounts payable in the ordinary course of
business in accordance with customary trade terms and which are not overdue for
a period of more than 60 days or, if overdue for more than 60 days, as to which
a dispute exists and adequate reserves in conformity with GAAP have been
established on the books of such Person. The term "Indebtedness" shall not
include amounts which have not been drawn under credit facilities,
notwithstanding that such amounts when drawn will automatically be secured by an
existing Lien.
Lien: Any mortgage, pledge, hypothecation, assignment, security
interest, lien, charge or encumbrance, or preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effects as
any of the foregoing, and the filing of, or agreement to give, any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction).
Officers' Certificate: As to the Company, a certificate executed on
behalf of the Company by its Chief Executive Officer, and any one of its Vice
Presidents or Chief Financial Officer.
Person: An individual, a partnership, a joint venture, a corporation,
a limited liability company, a trust, an unincorporated organization or a
government or any department or agency thereof.
Registration Rights Agreement: As defined in Section 4.6 of this
Agreement.
Repayment Event: Any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of the Subsidiaries.
Requirement of Law: As to any Person, the Certificate of Incorporation
and By-Laws or other organizational or governing documents of such Person, and
any law, treaty, rule or regulation, or determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject.
Restricted Securities: All of the following: (a) any certificates for
Stock bearing the applicable legend or legends referred to in Section 8.3
hereof, (b) any shares of Common Stock which have been issued upon the
conversion of any of the Stock and which are evidenced by a certificate or
certificates bearing the applicable legend or legends referred to in such
Section and (c) unless the context otherwise requires, any shares of Common
Stock which are at the time issuable upon the conversion of Stock and which,
when so issued, will be evidenced by a certificate or certificates bearing the
applicable legend or legends referred to in such Section.
Second Closing: As defined in Section 3 of this Agreement.
Second Closing Date: The date of the Second Closing.
Second Preferred Shares: As defined in Section 2 of this Agreement.
Securities Act: At any time, the Securities Act of 1933 as then in
effect or any similar federal statute then in effect, and any reference to a
particular Section of such Act shall be deemed to include a reference to the
comparable Section, if any, in any such similar federal statute.
Securities and Exchange Commission: The U.S. Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act or the Exchange Act, whichever is the relevant statute for the particular
purpose.
Shares: As defined in Section 1 of this Agreement.
Stock: As defined in Section 1 of this Agreement.
Subsidiaries: With respect to any Person, any corporation with respect
to which more than 50% of the combined voting power of each class having
ordinary voting power (other than
stock having such power only by reason of the happening of a contingency) is at
the time owned by such Person or by one or more Subsidiaries of such Person or
by such Person and one or more Subsidiaries of such Person.
Two-Thirds in Interest: At any time, the holders of at least two-
thirds, by number of shares, of the outstanding Shares and the outstanding
shares of Common Stock, if any, issued upon conversion of any Shares, then held
by the Purchasers and their Affiliates; provided, however, that for such purpose
a holder of Shares shall be treated as the holder of the number of shares of
Common Stock into which such Shares are at the time convertible.
Any of the above-defined terms may, unless the context otherwise
requires, be used in the singular or plural depending on the reference.
9.2 Accounting Terms. As used in this Agreement, and in any
----------------
certificate, report or other document made or delivered pursuant to this
Agreement, accounting terms not defined in Section 9.1 and accounting terms
partly defined in said Section 9.1 to the extent not defined, shall have the
respective meanings given to them under GAAP.
9.3 Other Provisions Regarding Definitions: Unless otherwise
--------------------------------------
defined therein, all terms defined in this Agreement shall have the defined
meanings when used in any certificate, report or other document made or
delivered pursuant to this Agreement. The words "hereof", "herein", and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement.
10. Expenses, etc. Whether or not the transactions contemplated by this
-------------
Agreement shall be consummated, the Company will pay all of its expenses in
connection with such transactions and in connection with any amendments or
waivers (whether or not the same become effective) under or in respect of this
Agreement or the Shares purchased by the Purchasers hereunder, including,
without limitation: (a) the cost and expenses of reproducing this Agreement and
the Shares purchased by the Purchasers, of furnishing all opinions of counsel
for the Company and all certificates on behalf of the Company, and of the
Company's performance of and compliance with all agreements and conditions
contained herein to be performed or complied with by it; and (b) the cost (other
than any applicable stock transfer taxes) of delivering to their principal
office, insured to their satisfaction, the Shares sold to the Purchasers
hereunder and any Shares delivered to the Purchasers upon any substitution of
Shares pursuant to Section 8 and of the Purchasers delivering any Shares,
insured to their satisfaction, upon any such substitution. At the First
Closing, the Company shall pay to each Purchaser or its designee, as specified
on Exhibit G, a fee equal to 4% of the gross proceeds to the Company of the sale
---------
of the First Preferred Shares purchased by such Purchaser at the First Closing.
At the Second Closing, the Company shall pay to each Purchaser or its designee,
as specified on Exhibit G, an additional fee equal to 4% of the gross proceeds
---------
to the Company of the sale of the Second Preferred Shares purchased by such
Purchaser at the Second Closing. In addition, the Company shall pay all
reasonable and itemized out-of-pocket costs and expenses of the Purchasers
(including without limitation the reasonable fees and expenses of Xxxxxx, Xxxx &
Xxxxxxxx LLP, counsel to the Purchasers, costs and fees related to the
preparation and filing of any required notifications or other filings under the
HSR Act and the Purchasers' other out-of-pocket expenses)
arising in connection with the preparation, negotiation, execution and delivery
of the commitment letter among the Company, NR Holdings Limited, NR Investments
Limited, DB Capital Investors, L.P. and X.X. Xxxxxx Capital Corporation, dated
June 28, 2000 (the "Commitment Letter"), this Agreement and the other
agreements, instruments, certificates and documents contemplated hereby (and the
Purchasers' due diligence efforts in connection therewith), not to exceed
$400,000 in the aggregate, whether or not the transactions contemplated hereby
are consummated, unless the Purchasers fail to consummate the transactions
contemplated hereby in breach of their obligations under this Agreement.
Reference is made to Section 5 of this Agreement for certain agreements among
the parties regarding the fees, if any, of brokers and finders.
11. Survival of Representations and Warranties and Indemnification;
---------------------------------------------------------------
Certain Limitations. The Company's indemnification obligations and all
-------------------
representations and warranties contained in this Agreement shall survive the
execution and delivery of this Agreement, any investigation at any time made by
the Purchasers or on their behalf, and the purchase of the Shares by the
Purchasers under this Agreement and any conversion of any of the Stock or any
disposition of any shares of Common Stock issued upon conversion of any of the
Stock; provided that all such representations and warranties (and the
indemnities in respect thereof with respect to claims not made prior to such
date) shall expire 30 days after the date the Company's audited financial
statements for the fiscal year ending December 31, 2000 are publicly filed with
the Commission or delivered to Purchasers, except that the representations and
warranties set forth in Section 5.6 (and the indemnities in respect thereof)
shall survive for a period of two (2) years following the First Closing Date.
No written (except as explicitly stated therein) or oral statements made by or
on behalf of the Company, other than in this Agreement, the Registration Rights
Agreement and the exhibits hereto and thereto, shall constitute representations
or warranties within the meaning of this Agreement. In no event shall
Purchasers be entitled to the remedy of rescission.
12. Amendments and Waivers. Any term of this Agreement may be amended
----------------------
or modified and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the Company and (a) in the case
of any such action prior to the Second Closing, the Purchasers; and (b) in the
case of any other such action, Two-thirds in Interest; provided that the
observance of a term of this Agreement may in any event be waived in writing by
the party that will lose the benefit of such term as a result of the waiver.
13. Notices, etc. Except as otherwise provided in this Agreement, notices
------------
and other communications under this Agreement shall be in writing and shall be
delivered, or mailed by first-class mail, postage pre-paid, addressed, (a) if to
the Purchasers or any other holder of Shares or shares of Common Stock into
which the Shares have been converted, at the applicable address set forth below,
or at such other address as the Purchasers or such other holder shall have
furnished to the Company in writing, and (b) if to the Company at the address of
the Company set forth below, to the attention of its Chief Executive Officer, or
at such other address, or to the attention of such other officer, as the Company
shall have furnished to the Purchasers and each such other holder in writing.
If to the Purchasers: NR2 Holdings Limited
c/o Investcorp Management Services Ltd.
Xxxxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxx, Xxxxxxx
Attention: H. Xxxxxxx Xxxxxx III
Facsimile: 000-000-000
With a copy to:
NR2 Holdings Limited
c/o Investcorp Management Services Ltd.
c/o Investcorp International Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Facsimile: 000-000-0000
DB Capital Investors, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxx
Facsimile: 000-000-0000
X.X. Xxxxxx Capital Corporation and
Sixty Wall Street Fund, L.P.
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Facsimile: 000-000-0000
If to the Company: NationsRent, Inc.
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: 000-000-0000
Notwithstanding the foregoing to the contrary, all deliveries required to be
made by the Company to NR2 Holdings Limited pursuant to Sections 7.1 and 7.2 may
be satisfied by delivery to the following address:
NR2 Holdings Limited
c/o Investcorp Management Services Ltd.
c/o Investcorp International Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Facsimile: 000-000-0000
14. Indemnification.
---------------
(a) The Company shall indemnify, defend and hold harmless the
Purchasers, their Affiliates, partners, officers, employees and agents
(each, an "Indemnified Person") from and against any and all losses,
liabilities, damages, judgments, settlements and expenses (including
interest and penalties recovered by a third party with respect thereto and
reasonable attorneys' fees and expenses and reasonable accountants' fees
and expenses incurred in the investigation or defense of any of the same or
in asserting, preserving or enforcing any of rights hereunder), that arise
out of any breach by the Company of any of its representations, warranties
or covenants contained in this Agreement or in the Registration Rights
Agreement.
(b) The Purchasers shall give the Company prompt notice of any
third-party claim that may give rise to any indemnification obligation
under this Section 14 and the Company shall (except as set forth below)
have the right to assume and control the defense (at its expense) and
settlement of any such claim through the Company's own counsel or through
other counsel reasonably acceptable to the Purchasers. The Purchasers may
retain additional counsel at their own expense. If, under applicable
standards of professional conduct, a conflict with respect to any
significant issue between the Purchasers and the Company exists in respect
of such third-party claim, the Company shall not assume the defense of such
claim and shall also pay the reasonable fees and expenses of one counsel
selected by Purchasers in respect of such claim. Notwithstanding the
foregoing, without the Purchasers' consent, the Company will not settle any
action or proceeding which does not provide the Purchasers a full,
unconditional release from all liability with respect to such claim by each
claimant or plaintiff in a form acceptable to the Purchasers' counsel, nor
will the Company consent to any injunctive or other non-monetary relief
affecting any Indemnified Person.
15. Control by Investcorp, DB Capital Investors, L.P. and X.X. Xxxxxx
-----------------------------------------------------------------
Capital Corporation. NR2 Holdings Limited covenants and agrees that Investcorp
-------------------
or an Affiliate of Investcorp will control, directly or indirectly, a majority
of the voting and dispositive power (i) with respect to the Shares purchased by
NR2 Holdings Limited hereunder so long as any such Shares remain outstanding,
and (ii) with respect to the shares of Common Stock into which any of such
Shares have been converted which continue to be held by such Purchaser and its
Affiliates. DB Capital Investors, L.P. covenants and agrees that DB Capital
Investors, L.P. or an Affiliate of DB Capital Investors, L.P. will control,
directly or indirectly, a majority of the voting and dispositive power with
respect to the Shares purchased by DB Capital Investors, L.P. hereunder so long
as any such Shares remain outstanding. X.X. Xxxxxx Capital Corporation
covenants and agrees that X.X. Xxxxxx Capital Corporation or an Affiliate of
X.X. Xxxxxx Capital Corporation will control, directly or indirectly, a majority
of the voting and dispositive power with respect to the Shares purchased by X.X.
Xxxxxx Capital Corporation and Sixty Wall Street Fund, L.P. hereunder so long as
any such Shares remain outstanding. Notwithstanding the foregoing, the
provisions of this Section 15 shall
not be violated by or as a result of the sale of substantially all of the assets
and business of Investcorp, DB Capital Investors, L.P. or X.X. Xxxxxx Capital
Corporation, whether by merger, sale of assets or otherwise.
16. Termination. This Agreement may be terminated or, in the case of
-----------
termination by a Purchaser, the rights and obligations of such Purchaser under
this Agreement may be terminated, (a) by the mutual written consent of all of
the Purchasers and the Company at any time, (b) by any Purchaser or the Company
if the First Closing shall not have been consummated on or before August 14,
2000, (c) by any Purchaser or the Company if the Second Closing shall not have
been consummated on or before November 30, 2000, (d) by any Purchaser or the
Company if the stockholder meeting occurs and the stockholders do not vote to
approve the transactions contemplated hereby, (e) by any Purchaser on the one
hand or the Company on the other hand if any representation or warranty of the
other party contained herein proves not to have been true and correct in any
material respect when made, or (f) by any Purchaser on the one hand or the
Company on the other hand if the other party materially breaches any covenant
hereunder; provided, however, that the right to terminate this Agreement
pursuant to clause (b) or (c) of this Section 16 shall not be available to any
party whose failure to perform any of its obligations under this Agreement
results in the failure to consummate the transactions by such time.
17. Public Announcements. The initial press release or releases concerning
--------------------
the transactions contemplated hereby shall be in the form agreed to by the
Company and the Purchasers. Prior to the First Closing, neither party will issue
any other press release or make any other public announcement concerning this
Agreement or the transactions contemplated hereby without the prior consent of
the other, except that either party may make such public disclosure as may be
required by law or a court of competent jurisdiction (in which event such party
will notify the other party as long in advance as practicable prior to making
such disclosure and will, unless not practicable under the circumstances, give
the other party the opportunity to comment on the language of the disclosure
prior to making such disclosure) or by any national securities exchange on which
the Common Stock is listed.
18. Miscellaneous. This Agreement shall inure to the benefit of and be
-------------
binding upon the successors and assigns of each of the parties hereto; provided
that none of the Purchasers may assign, delegate or otherwise transfer any of
its rights, interests or obligations under this Agreement, without the prior
written consent of the Company, except to another Purchaser or an Affiliate of
any of the Purchasers or of Investcorp. This Agreement embodies the entire
agreement and understanding between the Purchasers and the Company and
supersedes all prior agreements and understandings relating to the subject
matter hereof including without limitation the Commitment Letter, except (i) the
confidentiality letter agreement dated May 26, 1999 by and between Investcorp
and Bear Xxxxxxx & Co., Inc. shall not be superseded by this Agreement, is
affirmed by Investcorp and shall remain in full force and effect; (ii) the
confidentiality letter agreement dated July 31, 2000 between DB Capital
Investors, L.P. and the Company shall not be superseded by this Agreement, is
affirmed by DB Capital Investors, L.P. and shall remain in full force and
effect; and (iii) the confidentiality letter agreement dated May 2, 2000 between
X.X. Xxxxxx Capital Corporation and the Company shall not be superseded by this
Agreement, is affirmed by X.X. Xxxxxx Capital Corporation and shall remain in
full force and effect. This Agreement shall be construed and enforced in
accordance with
and governed by the law of the State of Delaware without regard to the
principles regarding conflicts of laws. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective representatives hereunto duly
authorized as of the date first above written.
NATIONSRENT, INC., a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
NR2 HOLDINGS LIMITED, a Cayman Islands company
By: /s/ Xxxxxxxx Xxxxxxxxx
--------------------------------------
Name: The Director Ltd.
Title: Director
DB CAPITAL INVESTORS, L.P., a Delaware limited
partnership
By: DB Capital Partners, L.P.,
its General Partner
By: DB Capital Partners, Inc.,
its General partner
By: /s/ Xxx X. Xxxxxxx
--------------------------
Xxx X. Xxxxxxx
Vice President
X.X. XXXXXX CAPITAL CORPORATION, a Delaware
corporation
By: /s/ Xxxxx Xxxxx
--------------------------------------
Xxxxx Xxxxx
Vice President
SIXTY WALL STREET FUND, L.P., a
Delaware limited partnership
By: Sixty Wall Street Corporation, its
General Partner
By: /s/ Xxxxx Xxxxx
---------------------------
Xxxxx Xxxxx
Vice President
29
LIST OF EXHIBITS AND SCHEDULES
Exhibit A Schedule of Purchasers and Shares Purchased
Exhibit B Form of Certificate of Designation
Exhibit C Form of Voting Agreement
Exhibit D Form of Opinion of Akerman, Senterfitt & Xxxxxx, P.A.
Exhibit E Form of Registration Rights Agreement
Exhibit F Form of Acknowledgment of Satisfaction of Preemptive Rights
Exhibit G Schedule of Designees for Fee Distribution Pursuant to Section 10
Schedule 5.2 Subsidiaries
Schedule 5.5 Changes Since December 31, 1999
Schedule 5.6 Capitalization
Schedule 5.8 Indebtedness
Schedule 5.9 Liens
Schedule 5.10 Litigation
Schedule 5.11 Compliance with Other Instruments, etc.
Schedule 5.19 Certain Market Transactions
Schedule 5.22 Environmental Matters
Schedule 5.24 Internal Controls
Schedule 5.26 Undisclosed Liabilities
EXHIBIT A
SCHEDULE OF PURCHASERS AND SHARES PURCHASED
-------------------------------------------
SHARES OF SERIES B SHARES OF SERIES B
CONVERTIBLE PREFERRED STOCK CONVERTIBLE PREFERRED STOCK
TO BE PURCHASED TO BE PURCHASED
PURCHASER AT FIRST CLOSING AT SECOND CLOSING
--------- --------------------------- ---------------------------
NR2 Holdings Limited 10,400 9,600
Xxxx Xxxx Xxxxxxxx
X.X. Xxx 0000
Xxxxxxx Xxxxx
Grand Cayman
Cayman Islands B.W.I.
DB Capital Investors, L.P. 20,800 19,200
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Capital Corporation 15,600 14,400
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10260
Sixty Wall Street Fund, L.P. 5,200 4,800
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
TOTAL 52,000 48,000
