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EXHIBIT 10.28
FORM OF REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is made and entered
into as of ______________, 1998, by and between NATIONSRENT, INC., a Delaware
corporation ("Nations"), Xxxxxx X. Xxxxx, Xx. and his permitted assigns (the
"Holder"). Certain other capitalized terms used herein are defined in Section 7
and throughout this Agreement.
WHEREAS, Nations and the Holder have entered into an Asset Purchase
Agreement dated as of June ___, 1998, (the "Asset Purchase Agreement") pursuant
to which Nations shall issue a promissory note to the Holder (the "Promissory
Note"), and the principal of the Promissory Note, upon the fulfillment of
certain conditions, is convertible into Nations common stock, $.01 par value
(the "Common Stock");
WHEREAS, Nations has agreed to provide to the Holder the registration
rights provided herein with respect to the shares of the Common Stock;
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements set forth herein, in the Asset Purchase Agreement and the
Promissory Note, the parties agree as follows:
1. PIGGY-BACK REGISTRATION.
(a) The Holder of the Registrable Shares is hereby
granted the following piggyback registration rights with respects to the
Registrable Shares whenever Nations proposes to file a Registration Statement
(other than an acquisition shelf Registration Statement which may be filed by
Nations pursuant to Rule 415 of the Securities Act or a Registration Statement
covering shares of Common Stock which would become issuable pursuant to the
Nations stock option plans), provided that in the event that any Registrable
Shares are included in any such Registration Statement, the Holder agrees to not
to sell any shares of Common Stock for a period of 180 days (or such lesser
period agreed to by the underwriters for such offering). Whenever Nations
proposes to file a Registration Statement, other than the Registration Statement
for its initial public offering (the "IPO") and except for the period ending on
the later of one year from the date hereof or the six month period from the
effective date of the IPO, Nations will, fifteen (15) days prior to such filing,
give written notice to the Holder of its intention to do so and, upon the
written request of the Holder given within ten (10) days after Nations provides
such notice (which request shall state the intended method of disposition of
such Registrable Shares), Nations shall use its reasonable best efforts to cause
all Registrable Shares which Nations has been requested to register by the
Holder to be registered under the Securities Act to the extent necessary to
permit his sale or other disposition in accordance with the intended methods of
distribution specified in the request of such Holder. In addition, if Nations
files a Registration Statement pursuant to Rule 415 of the Securities Act on
behalf of the holder of any convertible debt or notes of Nations registering
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Common Stock issuable or issued upon conversion of such securities, such
Registration Statement shall also include all of the Registrable Shares
requested by the Holder to be included in such Registration Statement.
(b) If, by virtue of this Agreement, the Holder requests
and is entitled to inclusion in such registration, Nations and the Holder shall,
(together with any other holder of Nations Common Stock provided registration
rights by Nations with respect to their shares of the common Stock (the
"Stockholders") proposing to distribute their securities through such
underwriting) enter into an underwriting agreement with the representative of
the underwriter or underwriters selected for such underwriting (the
"Representative").
(c) Notwithstanding any other provision of this
Agreement, if the Representative advises Nations in writing that marketing
factors require a limitation of the number of shares to be underwritten, then
Nations shall so advise the Holder and Stockholders, if any, which would
otherwise be entitled to registration, and the number of shares of Common Stock
that may be included in the registration and underwriting, if any, shall be
allocated among the Holder and Stockholders in such proportion as the respective
number of shares each Holder and Stockholder requests to be included in such
registration bears to the total number of shares such Holder and Stockholder
request be included. All Registrable Shares or any other Common Stock excluded
from the underwriting by reason of the underwriter's marketing limitation shall
not be included in such registration.
(d) If any Holder or Stockholder of Common Stock entitled
(upon request) to be included in such registration, disapproves of the terms of
the underwriting, such person may elect to withdraw therefrom by written notice
to Nations and the underwriter. The Common Stock so withdrawn shall also be
withdrawn from registration.
2. EXPENSES OF REGISTRATION. Nations shall pay all expenses
incurred by Nations in connection with the registration, qualification and/or
exemption of the Common Stock, including any SEC and state securities law
registration and filing fees, printing expenses, fees and disbursements of
Nations' counsel and accountants, transfer agents' and registrars' fees, fees
and disbursements of experts used by Nations in connection with such
registration, qualification and/or exemption, and expenses incidental to any
amendment or supplement to the Registration Statement or prospectuses contained
therein. Nations shall not, however, be liable for any underwriting discounts,
sales, broker's or underwriting commissions upon sale by any Holder of any of
the Common Stock.
3. FURNISHING OF DOCUMENTS. Nations shall furnish to the Holder
such reasonable number of copies of the Registration Statement, such
prospectuses as are contained in the Registration Statement and such other
documents as the Holder may reasonably request in order to facilitate the
offering of the Nations Shares.
4. AMENDMENTS AND SUPPLEMENTS. Nations shall prepare and promptly
file with the SEC and promptly notify the Holder of the filing of such
amendments or supplements to the
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Registration Statement or prospectuses contained therein as may be necessary to
correct any statements or omissions if, at the time when a prospectus relating
to the Common Stock is required to be delivered under the Securities Act, any
event shall have occurred as a result of which any such prospectus or any other
prospectus as then in effect would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Nations shall also advise the Holder promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose and promptly use its reasonable
best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued.
5. FURTHER INFORMATION. If a Holder includes Registrable Shares
in any registration, such Holder shall furnish Nations such information
regarding itself as Nations may reasonably request and as shall be required in
connection with any registration, qualification or compliance referred to in
this Agreement.
6. INDEMNIFICATION
(a) Nations will indemnify and hold harmless the Holder
from and against any and all losses, damages, liabilities, costs and expenses to
which the Holder may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, liabilities, costs or expenses are
caused by any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any prospectus contained therein or any
amendment or supplement thereto, or arise out of or based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that, Nations will not
be liable in any such case to the extent that any such loss, claim, damage,
liability, cost or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in conformity
with information furnished by or on behalf of Holder in writing specifically for
use in the preparation thereof.
(b) The Holder hereby agree to indemnify and hold
harmless Nations and each person, if any, who controls Nations within the
meaning of the Securities Act, from and against any and all losses, damages,
liabilities, costs and expenses to which Nations or any such controlling person
may become subject under the Securities Act or otherwise, insofar as such
losses, damages, liabilities, costs or expenses are caused by any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any prospectus contained therein or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, solely to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was so
made in reliance upon written information furnished by or on behalf of any
Holder specifically for use in the preparation thereof.
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(c) Promptly after receipt by an indemnified party
pursuant to the provisions of paragraph (a) or (b) of this Section 6 of notice
of the commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim thereof is to be
made against the indemnifying party pursuant to the provisions of said paragraph
(a) or (b), promptly notify the indemnifying party of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve it from
any liability which it may have hereunder unless the indemnifying party has been
materially prejudiced thereby nor will such failure to so notify the
indemnifying party relieve it from any liability which it may have to any
indemnified party otherwise than hereunder. In case such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party shall have the right to participate
in, and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any action include both the indemnified party and the indemnifying party and
there is a conflict of interest which would prevent counsel for the indemnifying
party from also representing the indemnified party, the indemnified party or
parties shall have the right to select separate counsel to participate in the
defense of such action on behalf of such indemnified party or parties. After
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party pursuant to the provisions of said paragraph (a) or (b) for
any legal or other expense subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation, unless (i) the indemnified party shall have employed counsel in
accordance with the provisions of the preceding sentence, (ii) the indemnifying
party shall not have employed counsel to represent the indemnified party within
a reasonable time after the notice of the commencement of the action, or (iii)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party.
(d) In the event any of the Registrable Shares are sold
by Holder in an underwritten public offering consented to by Nations, Nations
shall provide indemnification to the underwriters of such offering and any
person controlling any such underwriter on behalf of the Holder making the
offering; provided, however, that Nations shall not be required to consent to
any such underwriting or to provide such indemnification in respect of the
matters described in the proviso to the first sentence of Section 6(a).
7. DEFINITIONS. As used in this Agreement, the following
terms shall have the following respective meanings:
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations
promulgated thereunder, all as the same shall be in effect at the time.
"Registration Expenses" means the expenses described in
Section 2.
"Registrable Shares" shall mean shares of Common Stock owned
directly or issuable upon conversion of the Promissory Note issued by the
Company to the Holder and any other shares
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of capital stock of Nations or any successor issued to the Holder in respect of
the Common Stock as a result of stock splits, stock dividends, reclassification,
recapitalization, mergers, consolidations or similar events.
"Registration Statement" shall mean any registration statement
of Nations, except an initial Registration Statement, on any form (to be
selected by Nations other than S-4 or S-8) for which Nations then qualifies. The
term Registration Statement shall also include all exhibits and financial
statements and schedules and documents incorporated by reference in such
Registration Statement when it becomes effective under the Securities Act, and
in the case of the references to the Registration Statement as of a date
subsequent to the effective date, as amended or supplemented as of such date.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar federal statute, and the rules and regulations promulgated
thereunder, all as the same shall be in effect at the time.
8. MISCELLANEOUS.
(a) Notice Generally. Any notice, request, consent,
approval, declaration, delivery or other communication hereunder to be made
pursuant to the provisions of this Agreement shall be sufficiently given or made
if in writing and either delivered in person with receipt acknowledged,
delivered by reputable overnight courier, telecopied and confirmed separately in
writing by a copy mailed as follows or sent by registered or certified mail,
return receipt requested, postage prepaid, to the addresses set forth in the
Asset Purchase Agreement.
(b) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties hereto; provided, however, that the Holder's rights hereunder may not be
transferred without the prior written consent of Nations, provided that this
Agreement may be assigned to a subsequent holder of all or a portion of the
principal amount of the Promissory Note to the extent such assignment of the
Promissory Note is permitted thereunder.
(c) Governing Law. This Agreement shall be governed by
the laws of the State of Florida, without regard to the provisions thereof
relating to conflict of laws.
(d) Severability. Wherever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provisions shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
(e) Entire Agreement. This Agreement, together with the
Asset Purchase Agreement, is intended by the parties as a final expression of
their agreement and intended to be a complete exclusive statement of the
agreement and understanding of the parties hereto in respect of
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the subject matter contained herein and therein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein and therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to the subject matter hereof.
(f) Counterparts. This Agreement may be executed in
separate counterparts, each of which shall collectively and separately,
constitute one agreement.
(g) No Superior Registration Rights. The Company has no
outstanding piggyback registration rights that rank superior to those granted to
the Holder herein. The Company agrees so long as all or any part of the
Promissory Note is outstanding that all future piggyback registration rights
will rank pari passu or subordinate to the registration rights contained herein.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
NATIONSRENT, INC.
By:
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Name:
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Title:
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XXXXXX X. XXXXX, XX., individually
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