EXHIBIT A
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of July 20, 1999 by and between NATIONSRENT, INC., a Delaware
corporation ("NationsRent"), NR Holdings Limited, a Cayman Islands corporation,
and NR Investments Limited, a Cayman Islands corporation (collectively, the
"Holders"), and Xxxxx X. Xxxx and H. Xxxxx Xxxxxxxx. Certain other capitalized
terms used herein are defined in Section 10 and throughout this Agreement.
WHEREAS, NationsRent and the Holders have entered into a Preferred Stock
Purchase Agreement dated as of July 20, 1999 (the "Stock Purchase Agreement"),
pursuant to which NationsRent agrees to issue 100,000 shares of its Series A
Convertible Preferred Stock, par value $.01 per share (the "Preferred Stock") to
the Holders; and
WHEREAS, the Preferred Stock is convertible into NationsRent common stock,
par value $.01 per share (the "Common Stock"), as provided in the Stock Purchase
Agreement; and
WHEREAS, NationsRent has agreed to provide to the Holders the registration
rights provided herein with respect to the Registrable Securities;
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements set forth herein and in the Stock Purchase Agreement, the parties
agree as follows:
1. Demand Registration.
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(a) Registration on Request. At any time after the 90th day following
the First Closing (as defined in the Stock Purchase Agreement), upon written
request by the Holders of at least a majority (by number of shares) of the
Registrable Securities, NationsRent shall utilize best reasonable efforts to
cause, as soon as practicable following the date of such notice, a registration
statement to be filed under the Securities Act or a pending registration
statement to be amended for the purpose of registering the Registrable
Securities for resale by the requesting Holders in accordance with the intended
method of disposition stated in such request; provided that NationsRent shall
not be required to effect any registration pursuant to this Section 1(a) on more
than three (3) separate occasions. Each request for a demand registration shall
specify the approximate number of Registrable Securities requested to be
registered and the anticipated per share price range for such offering.
NationsRent shall give all other Holders written notice of such written request
within ten (10) days thereof and give all other Holders the opportunity to
request that their Registrable Securities be included in the registration
statement filed with the SEC. No request for registration may be made pursuant
to this Section 1(a) unless the Registrable Securities requested to be
registered on behalf of requesting Holders total at least 25% of the aggregate
number of Registrable Securities acquired by the Holders in the First Closing
and the Second Closing (as
defined in the Stock Purchase Agreement) or have a
market value (based upon the closing price of such Registrable Securities quoted
on the securities exchange or over-the-counter quotation system on which such
Registrable Securities are listed or quoted, as the case may be, on the trading
day immediately preceding any request pursuant to this Section 1(a)) of at least
$25 million at the close of the last trading day prior to such request.
(b) Registration Statement Form. Registrations under Section 1(a)
shall be on such appropriate registration form of the SEC as shall permit the
disposition of such Registrable Securities in accordance with the intended
method or methods of disposition specified in the request for such registration
and as shall be permitted under the Securities Act.
(c) Effective Registration Statement. A registration requested
pursuant to Section 1(a) shall be deemed to have been effected if a registration
statement with respect thereto has become effective, provided that a
registration statement which does not become effective after NationsRent has
filed a registration statement with respect thereto solely by reason of the
refusal by the Holders to proceed (other than a refusal to proceed based upon
the written advice of counsel relating to a material matter regarding the
Company) shall be deemed to have been effected by the Company at the request of
such Holders, unless (i) after it has become effective, such registration
statement becomes subject to any stop order, injunction or other order or
requirement of the Commission or other governmental agency or court for any
reason, other than by reason of an act or omission attributable to such Holders
with respect thereto; provided that upon the lifting of any such order
registration will be deemed to be effective, or (ii) unless the conditions to
closing specified in the purchase agreement or underwriting agreement entered
into in connection with such registration are not satisfied, other than by
reason of an act or omission attributable to such Holders.
(d) Selection of Underwriters. If a requested registration pursuant
to Section 1(a) involves an underwritten public offering, the managing or lead
underwriter shall be selected by NationsRent and shall be reasonably acceptable
to the Holders of at least a majority (by number of shares) of the Registrable
Securities as to which registration has been requested, which shall not
unreasonably withhold its acceptance of any such underwriters, and one co-
managing or co-lead underwriter shall be selected by the Holders of at least a
majority (by number of shares) of the Registrable Securities as to which
registration has been requested and shall be reasonably acceptable to
NationsRent, which shall not unreasonably withhold its acceptance of any such
co-managing or co-lead underwriter.
(e) Priority on Demand Registrations. If a requested registration
pursuant to Section 1(a) involves an underwritten public offering and the
managing or lead underwriter advises NationsRent in writing, with a copy to each
Holder requesting registration, that in its opinion the number of securities
requested to be included in such registration (including securities to be sold
by NationsRent or by other persons who are not Holders of Registrable
Securities) exceeds the number of securities which can be sold in an orderly
manner in such offering within a price range acceptable
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to the Holders of at least a majority (by number of shares) of the Registrable
Securities to be included in such registration without adversely affecting the
marketability of the offering, NationsRent shall include in such registration
prior to the inclusion of any securities which are not Registrable Securities
the number of Registrable Securities requested to be included which in the
opinion of such underwriters can be sold in an orderly manner within the price
range of such offering, pro rata among the respective Holders thereof on the
basis of the amount of Registrable Securities requested by each such Holder to
be included in such offering.
(f) Restrictions on Demand Registration. NationsRent shall not be
obligated to effect any registration pursuant to Section 1(a) during any of the
following periods: (i) 30 days prior to the anticipated commencement of an
underwritten public offering by NationsRent of its equity securities and 90 days
subsequent to the consummation of such underwritten public offering unless, in
the good faith judgment of the managing or lead underwriter or underwriters
thereof, which is confirmed in writing, such filing would not have an adverse
effect on such offering, (ii) if such filing is prohibited by applicable law or
(iii) if NationsRent determines in good faith that the filing or effectiveness
of such registration statement would require NationsRent to disclose a material
financing, acquisition or other corporate transaction or development, and the
proper officers of NationsRent shall have determined in good faith that such
disclosure is not in the best interests of NationsRent, provided that
NationsRent may not delay the filing or effectiveness of any registration
statement pursuant to this Section 1(f) for more than an aggregate of 180 days
in any twelve-month period; provided, further, that NationsRent shall file the
registration statement and cause it to become effective as soon as reasonably
practicable after it shall determine in its good faith judgment that such
registration will not materially interfere with or materially adversely affect
the financing, acquisition or other corporate transaction or development.
2. Piggyback Registration.
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(a) Right to Piggyback. The Holders of the Registrable Securities are
hereby granted the following piggyback registration rights with respect to the
Registrable Securities. Whenever NationsRent proposes to file a registration
statement, other than pursuant to Section 1(a) above, for the registration of
shares of its Common Stock in connection with an underwritten primary public
offering on behalf of NationsRent or an underwritten secondary public offering
on behalf of other persons who are not the Holders of Registrable Securities,
NationsRent will, prior to such filing, give fifteen (15) days prior written
notice to the Holders of its intention to do so and, upon the written request of
the Holders given within ten (10) days after receipt of such notice, NationsRent
shall, subject to the terms of this Agreement, use its best reasonable efforts
to cause the Registrable Securities which NationsRent has been requested to
register by such Holders to be registered under the Securities Act to the extent
necessary to permit their sale. If, at any time after giving written notice of
its intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, NationsRent
shall determine for any reason (other than by reason of acts or omissions
attributable to any of the Holders) either not to register
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or to delay registration of such securities, NationsRent may, at its election,
give written notice of such determination to each Holder and, thereupon, (i) in
the case of a determination not to register, shall be relieved of its obligation
to register any Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses in connection
therewith), without prejudice, however, to the rights of any Holders entitled to
do so to request that such registration be effected as a registration under
Section 1(a), and (ii) in the case of a determination to delay registration,
shall be permitted to delay registering any Registrable Securities, for the same
period as the delay in registering such other securities. No registration
effected under this Section 2(a) shall relieve NationsRent of its obligation to
effect any registration upon request under Section 1(a), nor shall any such
registration hereunder be deemed to have been effected pursuant to Section 1(a).
(b) Priority in Piggyback Registrations. In a requested registration
pursuant to Section 2(a), if the managing or lead underwriters advise
NationsRent in writing that in their opinion the number of securities requested
to be included in such registration exceeds the number which can be sold in an
orderly manner in such offering within a price range acceptable to NationsRent
or the other persons who are not Holders of Registrable Securities, who
requested the filing of a registration statement pursuant to Section 2(a) above,
NationsRent shall include in such registration (i) first, the securities
NationsRent proposes to sell, and (ii) second, the Registrable Securities and
securities held by other persons who are not Holders of Registrable Securities
requested to be included in such registration, pro rata among the Holders of
Registrable Securities and the other persons who are not holders of Registered
Securities on the basis of the number of shares requested by each such Holder of
Registrable Securities and each other person who is not a Holder of Registrable
Securities to be included in such offering.
3. Holdback Agreements.
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(a) So long as a Holder and its affiliates own Common Stock and/or
Preferred Stock convertible into Common Stock exceeding 5% of the Common Stock
of NationsRent then outstanding or such Holder has the right to designate one or
more directors to the board of directors of NationsRent (unless otherwise
required by the underwriters), such Holder of Registrable Securities shall not
effect any public sale or distribution (including sales pursuant to Rule 144) of
equity securities of NationsRent, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven (7) days prior
to and the 90-day period beginning on the effective date of any underwritten
registration (except as part of such underwritten registration), unless the
underwriters managing the registered public offering agree to a shorter
restricted period for Messrs. Xxxx or Xxxxxxxx.
(b) NationsRent (i) shall not effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven (7) days prior to and during
the 90-day period beginning on the effective date of any
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underwritten demand registration or any underwritten piggyback registration
(except as part of such underwritten registration), unless the underwriters
managing the registered public offering otherwise agree, and (ii) shall use best
reasonable efforts to cause each holder of at least 5% (on a fully-diluted
basis) of its Common Stock, or any securities convertible into or exchangeable
or exercisable for Common Stock, purchased or acquired from NationsRent at any
time after the date of this Agreement (other than in a registered public
offering) to agree not to effect any public sale or distribution (including
sales pursuant to Rule 144) of any such securities during such period (except as
part of such underwritten registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree.
4. Registration Procedures. Whenever the Holders of Registrable Securities
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have requested that any Registrable Securities be registered pursuant to this
Agreement, NationsRent shall use its best reasonable efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto NationsRent shall
as expeditiously as possible:
(a) prepare and as soon as reasonably practicable file with the SEC a
registration statement with respect to such Registrable Securities and use its
best reasonable efforts to cause such registration statement to become and
remain effective (provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, NationsRent shall furnish
to the counsel selected by the Holders of at least a majority (by number of
shares) of the Registrable Securities covered by such registration statement
copies of all such documents proposed to be filed, which documents shall be
subject to the review and comment of such counsel);
(b) notify each seller of Registrable Securities of the effectiveness
of each registration statement filed hereunder and prepare and file with the SEC
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than 180 days and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best reasonable efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable
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such seller to consummate the disposition of the Registrable Securities owned by
such seller in such jurisdictions (provided that NationsRent shall not be
required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this subparagraph, (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made, and, at the request of any such
seller, NationsRent shall promptly prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made;
(f) use its best reasonable efforts to cause all such Registrable
Securities to be listed on each securities exchange on which securities of the
same class are then listed;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions (including,
without limitation, causing at least one member of senior management of
NationsRent to participate in any "road show" or "road shows") as the sellers of
at least a majority (by number of shares) of the Registrable Securities being
sold or the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of NationsRent, and cause NationsRent's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
stockholders, as soon as reasonably practicable, an earnings statement covering
the period of at least twelve months beginning with the first day of
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NationsRent's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) if and to the extent that any seller of Registrable Securities, in
its sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of NationsRent, permit such seller to participate in the
preparation of such registration or comparable statement and require the
insertion therein of material, furnished to NationsRent in writing, which in the
reasonable judgment of such seller and its counsel should be included;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Common Stock included in such registration statement for sale in any
jurisdiction, use its best reasonable efforts promptly to obtain the withdrawal
of such order;
(m) use its best reasonable efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the sellers thereof to consummate the disposition of such Registrable
Securities; and
(n) furnish to each Holder of Registrable Securities a cold comfort
letter from NationsRent's independent public accountants in customary form and
covering such matters of the type customarily covered by cold comfort letters as
the sellers of at least a majority (by number of shares) of the Registrable
Securities being sold reasonably request, in form and substance reasonably
satisfactory to such Holder.
NationsRent will not file any registration statement or amendment
thereto or any prospectus or any supplement thereto (including such documents
incorporated by reference and proposed to be filed after the initial filing of
the registration statement) to which the Holders of at least a majority (by
number of shares) of Registrable Securities covered by such registration
statement or the underwriter or underwriters, if any, shall reasonably object,
provided that NationsRent may file such document in a form required by law upon
the advice of its counsel.
5. Registration Expenses. NationsRent will pay or cause to be paid all
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Registration Expenses (as defined below) in connection with any registration of
Registrable Securities requested pursuant to this Agreement. "Registration
Expenses" means all expenses incident to NationsRent's performance of or
compliance with this Agreement, including without limitation, all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, listing expenses, printing expenses, messenger and delivery expenses, fees
and disbursements of custodians, fees and disbursements of counsel for
NationsRent and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other persons retained by NationsRent
and
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the reasonable fees and disbursements of one counsel chosen by the Holders
of at least a majority (by number of shares) of the Registrable Securities
included in such registration. Registration Expenses shall not include any
taxes payable in connection with the resale of the Registrable Securities.
6. Indemnification.
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(a) Indemnification by NationsRent. NationsRent agrees to indemnify,
to the extent permitted by law, each Holder of Registrable Securities, its
officers, directors, partners, members, affiliates and each person who controls
such Holder (within the meaning of the Securities Act) against all losses,
claims, damages, liabilities and expenses arising out of or based upon any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and, except as otherwise provided herein, NationsRent will
reimburse such Holder, officer, director, partner, member, affiliate and
controlling person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending against any such loss, claim.
damage, liability or expense, except insofar as the same arise from or are based
upon any information made in reliance upon and in conformity with written
information provided to NationsRent by such Holder expressly for use therein or
by such Holder's failure to deliver a copy of the final prospectus or any
amendments or supplements thereto after NationsRent has furnished such Holder
with a sufficient number of copies of the same. In connection with an
underwritten offering, NationsRent shall indemnify such underwriters, their
officers and directors and each person who controls such underwriters (within
the meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the Holders of Registrable Securities.
(b) Indemnification by the Holders. In connection with any
registration statement in which a Holder of Registrable Securities is
participating, each such Holder shall furnish to NationsRent in writing such
information and affidavits as NationsRent reasonably requests for use in
connection with any such registration statement or prospectus and, to the extent
permitted by law, shall indemnify NationsRent, its directors and officers and
each person who controls NationsRent (within the meaning of the Securities Act)
against any losses, claims, damages, liabilities and expenses arising out of or
based upon any untrue or alleged untrue statement of material fact contained in
the registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
omission is made in reliance upon and in conformity with written information
furnished to NationsRent by such Holder specifically stating that it is for use
in the preparation of such registration statement, prospectus or preliminary
prospectus, amendment or supplement; provided that the obligation to indemnify
shall be individual, not joint and several, for each Holder and shall be limited
to the net amount of proceeds received by such Holder from the sale of
Registrable Securities pursuant to such registration statement. In connection
with an underwritten
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offering, the selling Holders of Registrable Securities shall indemnify such
underwriters, their officers and directors and each person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of NationsRent.
(c) Notice of Claims. Any person entitled to indemnification
hereunder shall (i) give prompt written notice to the indemnifying party of any
claim with respect to which it seeks indemnification (provided that the failure
to give prompt notice shall not impair any person's right to indemnification
hereunder to the extent such failure has not prejudiced the indemnifying party)
and (ii) unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist with
respect to such claim, permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party;
provided, however, that any indemnified party may, at its own expense, retain
separate counsel to participate in such defense. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation or which requires action other than the
payment of money by the indemnifying party. An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim.
(d) Survival of Indemnification. The indemnification provided for
under this Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director, partner, member, affiliate or controlling person of such indemnified
party and shall survive the transfer of securities.
(e) Contribution. If the indemnification provided for in this Section
6 is unavailable to an indemnified party in respect of any loss, claim, damage,
liability or expense referred to herein, then each indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage,
liability or expense (i) in such proportion as is appropriate to reflect the
relative benefits received by NationsRent on the one hand and the Holder or
other person, as the case may be, on the other from the distribution of the
Registrable Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of NationsRent on the one hand and of the Holder or other person,
as the case may be, on the other in connection with the statements or omissions
which resulted in such loss, claim, damage, liability or expense,
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as well as any other relevant equitable considerations. The relative benefits
received by NationsRent on the one hand and the Holder or other person, as the
case may be, on the other in connection with the distribution of the Registrable
Securities shall be deemed to be in the same proportion as the total net
proceeds received by NationsRent from the initial sale of the Registrable
Securities by NationsRent to the Holder pursuant to the Stock Purchase Agreement
bear to the gain, if any, realized by the selling Holder or the underwriting
discounts and commissions received by the underwriter, as the case may be. The
relative fault of NationsRent on the one hand and of the Holder or other person,
as the case may be, on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission to state a material fact relates to information supplied by
NationsRent, by the Holder or by the other person and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission, provided that the foregoing contribution agreement
shall not inure to the benefit of any indemnified party if indemnification would
be unavailable to such indemnified party by reason of the provisions contained
in the first sentence of Section 6(a), and in no event shall the obligation of
any indemnifying party to contribute under this Section 6(e) exceed the amount
that such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under this Section 6 had
been available under the circumstances.
The Company and the Holders of Registrable Securities agree that it would
not be just and equitable if contribution pursuant to this Section 6(e) were
determined by pro rata allocation (even if the Holders and any underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or expenses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth in the preceding sentence and Section 6(c),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6(e), no Holder of
Registrable Securities or underwriter shall be required to contribute any amount
in excess of the amount by which (i) in the case of any such Holder, the net
proceeds received by such Holder from the sale of Registrable Securities or (ii)
in the case of an underwriter, the total price at which the Registrable
Securities purchased by it and distributed to the public were offered to the
public exceeds, in any such case, the amount of any damages that such Holder or
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7. Participation in Underwritten Registrations. No Holder may participate in
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any registration hereunder which involves an underwritten offering unless such
Holder (i) agrees to sell such Holder's securities on the basis provided in any
underwriting arrangements approved by the
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parties entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements; provided that no Holder of Registrable Securities included in any
underwritten registration shall be required to make any representations or
warranties to NationsRent or the underwriters (other than representations and
warranties regarding such Holder and such Holder's intended method of
distribution) or to undertake any indemnification obligations to NationsRent or
the underwriters with respect thereto, except as otherwise provided in paragraph
6 hereof.
8. Other Agreements. NationsRent shall not enter into any agreement or
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instrument which would conflict with or result in a material breach or violation
of any of the terms or provisions of this Agreement. In addition, NationsRent
shall not enter into any agreement or instrument with any person which grants
such person demand registration rights similar to those in Section 1(a) which
preclude the Holders of Registrable Securities from exercising their rights
pursuant to Section 2(a) hereof in connection with any registration statement
filed pursuant to which such person will sell securities of NationsRent.
9. Tag-Along Rights.
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(a) Certain Definitions.
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(i) The term "Xxxxxxxx Shares" means all shares of Common Stock
beneficially owned by H. Xxxxx Xxxxxxxx as of the date hereof,
and any of such shares which are subsequently transferred to a
Xxxxxxxx Transferee (such persons, the "Xxxxxxxx Stockholders").
(ii) The term "Xxxxxxxx Transferee" means (i) any member of Xx.
Xxxxxxxx'x immediate family, or (ii) any trust, limited
partnership or similar entity controlled by H. Xxxxx Xxxxxxxx or
any members of Xx. Xxxxxxxx'x immediate family, or with respect
to which he has or they have a beneficial interest.
(ii) The term "Xxxx Shares" means all shares of Common Stock
beneficially owned by Xxxxx X. Xxxx or Xxxx Holdings Limited
Partnership as of the date hereof, and any such shares which are
subsequently transferred to a Xxxx Transferee (such persons, the
"Xxxx Stockholders").
(iv) The term "Xxxx Transferee" means (i) any member of Xx. Xxxx'x
immediate family, or (ii) any trust, limited partnership or
similar entity controlled by Xxxxx X. Xxxx, Xxxx Holdings Limited
Partnership or any member of Xx. Xxxx'x immediate family, or with
respect to which he has or they have a beneficial interest.
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(v) The term "Tag-Along Sale" means any transaction or series of
transactions occurring at substantially the same time (other than
underwritten offerings, transfers for tax or estate planning
purposes or any pledge as security in a bona fide loan
transaction and any related foreclosure or margin sales) which
involves the sale by any Xxxxxxxx Stockholder or Xxxx
Stockholder, or both, of shares of Common Stock, representing 2%
or more of the outstanding shares of Common Stock, calculated on
a fully-diluted basis for all outstanding options, warrants and
other securities convertible into or exchangeable for shares of
Common Stock, including but not limited to the Registrable
Securities.
(b) Tag-Along Right. Prior to the fifth anniversary of the Second
---------------
Closing, in connection with any proposed Tag-Along Sale, the Xxxxxxxx
Stockholders and the Xxxx Stockholders participating in such sale shall afford
the Holders (pro rata among such Holders) the opportunity to participate in such
sale, on the same terms and conditions as such Xxxxxxxx Stockholders and Xxxx
Stockholders, with respect to the number of shares of Common Stock equal to the
number derived by multiplying the total number of shares proposed to be sold in
the Tag-Along Sale by a fraction, the numerator of which is the total number of
shares of Common Stock then held by the Holders (including shares issuable upon
the conversion of shares of Preferred Stock) and the denominator of which is the
sum of (i) the total number of shares of Common Stock then held by the Holders
(including shares issuable upon the conversion of shares of Preferred Stock),
(ii) the total number of Xxxxxxxx Shares then held by the Xxxxxxxx Stockholders
if any Xxxxxxxx Stockholder is participating in such sale and (iii) the total
number of Xxxx Shares then held by the Xxxx Stockholders if any Xxxx Stockholder
is participating in such sale.
(c) Notices. The Xxxxxxxx Stockholders or the Xxxx Stockholders
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participating in any Tag-Along Sale shall, at least five (5) days prior to the
Tag-Along Sale, give written notice to the Holders providing a summary of the
terms of the proposed sale and the number of Xxxxxxxx Shares and Xxxx Shares
proposed to be sold in such Tag-Along Sale. Each Holder may exercise its right
to participate in such Tag-Along Sale by providing written notice to any of the
Xxxxxxxx Stockholders or Xxxx Stockholders participating in such Tag-Along Sale,
stating the number of shares of Common Stock that the Holder wishes to sell the
Tag-Along Sale. If no Tag-Along Notice is received by the Xxxxxxxx Stockholders
or the Xxxx Stockholders in the five (5) day period prior to the proposed sale,
the Xxxxxxxx Stockholders and the Xxxx Stockholders shall have the right for a
30-day period to sell up to the proposed number of shares on terms and
conditions no more favorable in any material respect than those stated in the
notice provided to the Holders pursuant to the first sentence of this Section
9(c) (provided that, in connection with any proposed Tag-Along Sale intended to
be substantially at market price, the sales price can be substantially at
market).
(d) Certain Transfers. No transfer of Xxxxxxxx Shares to a Xxxxxxxx
-----------------
Transferee and no transfer of Xxxx Shares to a Xxxx Transferee will be made
unless the Xxxxxxxx Transferee or
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the Xxxx Transferee, as the case may be, agrees to be bound by the provisions of
this Section 9; provided that shares of Common Stock which are sold by either
Xx. Xxxxxxxx or Xx. Xxxx to any Xxxxxxxx Transferee or Xxxx Transferee,
respectively, in a bona fide sale transaction at fair market value shall not be
deemed to be held by the respective transferee for purposes of any Tag-Along
Sale.
10. Definitions. As used in this Agreement, the following terms shall have the
-----------
following respective meanings:
"Affiliate" shall have the meaning attributed thereto under Rule 12b-2
under the Exchange Act.
"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.
"Registrable Securities" shall mean, as of any date of determination,
outstanding shares of Common Stock that were issued by NationsRent upon the
conversion of the Preferred Stock, shares of Common Stock issuable by
NationsRent upon conversion of any Preferred Stock and any other shares of
capital stock of NationsRent issued in respect of any of the foregoing as a
result of stock splits, stock dividends, reclassification, recapitalization,
mergers, consolidations or similar events; provided that any such securities
shall no longer be Registrable Securities if such securities have been resold or
exchanged pursuant to an effective registration statement or pursuant to Rule
144 under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"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.
11. 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 or sent by registered or certified mail, return receipt requested,
postage prepaid, to the appropriate address or addresses set forth in the Stock
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 that neither of the Holders may assign, delegate or otherwise transfer
any of its rights, interests or obligations under this
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Agreement, without the prior written consent of NationsRent, except to the other
Holder or an Affiliate of either of the Holders or of Investcorp S.A. In no
event, however, may either of the Holders or Affiliates of either of the Holders
assign, delegate or otherwise transfer any of the Tag-Along Rights provided in
Section 9 of this Agreement except to the other Holder or an Affiliate of either
of the Holders or of Investcorp S.A.
(c) Governing Law. This Agreement shall be governed by the laws of
-------------
the State of Delaware, 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 Stock
----------------
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 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.
[signatures following on next page]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
NATIONSRENT, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Chairman of the Board and
Chief Executive Officer
NR HOLDINGS LIMITED
By: /s/ Sydney X. Xxxxxxx
--------------------------------
Name: The Director Ltd.
Title: Director
NR INVESTMENTS LIMITED
By: /s/ Sydney X. Xxxxxxx
--------------------------------
Name: The Director Ltd.
Title: Director
XXXXX X. XXXX
/s/ Xxxxx X. Xxxx
-----------------------------------
H. XXXXX XXXXXXXX
/s/ H. Xxxxx Xxxxxxxx
-----------------------------------
