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Exhibit 4.3
SHAREHOLDER'S AGREEMENT
This Agreement (the "Agreement"), is made as of the ____ day of July,
1996, between RENT-WAY, INC., a Pennsylvania corporation (the "Company") and
XXX XXXXX, an individual residing at 00 Xxxxxx Xxxxx, Xxx Xxxxxx, Xxxxxxxx
00000 ("Xxxxx").
RECITALS:
Pursuant to a Stock Purchase Agreement dated July __, 1996 the (the
"Purchase Agreement") the Company is issuing to Xxxxx an aggregate of 20,358
shares of its common stock, without par value (the "Common Stock"), subject to
adjustment, which shares shall have a Market Value (as defined in the Purchase
Agreement) of $250,000 as of the date of issuance. The parties wish to set
forth certain obligations and restrictions with respect to the Common Stock and
to provide for certain registration rights with respect to the Common Stock
owned by Xxxxx, as hereinafter set forth in this Agreement.
AGREEMENT:
In order to implement the foregoing and in consideration of the mutual
agreements contained in this Agreement and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties agree as follows:
1. DEFINITIONS. As used herein, the following terms shall have the
following meanings:
"Exchange Act" shall mean the Securities Exchange Act of 1934, and the
rules and regulations thereunder.
"Person" shall mean any individual, firm, corporation or other entity,
and shall include any successor (by merger or otherwise) of such entity.
"Shares" shall mean, as of any date, all shares of Common Stock issued
to Xxxxx pursuant to the Purchase Agreement.
"SEC" shall mean the Securities and Exchange Commission, or any
successor commission or agency having similar powers.
"Securities Act" shall mean the Securities Act of 1933, and the rules
and regulations thereunder.
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2. REGISTRATION RIGHTS.
(a) Piggyback Registrations. For a period beginning one (1) year after
the date of this Agreement and continuing for a period of one (1) year
thereafter if the Company proposes to file a registration statement on Form S-1
to register any of its Common Stock under the Securities Act for sale to the
public under the Securities Act, the Company shall give Xxxxx notice of such
proposed registration at least 30 days prior to the filing of a registration
statement. At the written request of Xxxxx delivered to the Company within 15
days after the receipt of the notice from the Company, which request shall
state the number of Shares that Xxxxx wishes to sell publicly under the
registration statement proposed to be filed by the Company (the "Registration
Shares"), the Company shall use its best efforts to include in any such
registration under the Securities Act (and in any related registration,
qualification or compliance under state blue sky laws) such Registration
Shares, and to cause such registration (the "Piggyback Registration") to become
and remain effective; provided, however, that (i) the Company may, without the
consent of Xxxxx, withdraw such registration statement prior to its becoming
effective if the Company has abandoned its proposal to register its Common
Stock; (ii) the Company may, without the consent of Xxxxx, delay the
effectiveness of such registration statement if in the opinion of the Board of
Directors such delay is in the best interests of the Company, and (iii) if a
registration pursuant to this Section 2(a) involves an underwritten offering
and the managing underwriter advises the Company that, in its written opinion
to Xxxxx, the number of Registration Shares requested to be included in such
registration exceeds the number which can be sold in such offering, so as to be
likely to have an adverse affect on such offering as contemplated by the
Company (including the price at which the Company proposes to sell such Common
Stock), then the Company will include in such registration (x) first, all of
the Common Stock to be sold by the Company and (y) second, to the extent of the
number of Registration Shares requested to be included in such registration
which, in the opinion of such managing underwriter, can be sold without having
the adverse effect referred to above, the number of Registration Shares which
Xxxxx and all other holders of the Company's Common Stock who, as of the date
of this Agreement, have contractual rights of registration have requested to be
included in such registration, such amount to be allocated pro rata among all
such requesting holders on the basis of the relative number of shares of Common
Stock then held by each such holder, provided that any such shares thereby
allocated to any such holder that exceeds such holder's request will be
reallocated among the remaining requesting holders in like manner.
(b) Registration Covenants of the Company. In the event that any
Registration Shares of Xxxxx are to be registered pursuant to Section 2(a), the
Company covenants and agrees that it shall use its reasonable best efforts to
effect the registration and cooperate in the sale of the Registration Shares to
be registered and, subject to the Company's rights described in Section 2(a) to
withdraw certain registrations, it shall:
(i)(A) prepare and file with the SEC a registration statement
registering the Registration Shares (as well as any necessary
amendments or supplements thereto) (a "Registration Statement"); (B)
provide Xxxxx and his legal representatives with a reasonable
opportunity to review the Registration (and any amendments thereto)
before filing; and (C) use its reasonable best efforts to cause the
Registration Statement to become effective;
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(ii) notify Xxxxx, promptly after the Company shall receive
notice thereof, of the time when the Registration Statement becomes
effective or when any amendment or supplement or any prospectus
forming a part of the Registration Statement has been filed;
(iii) notify Xxxxx promptly of any request by the SEC for the
amending or supplementing of the Registration Statement or prospectus
or for additional information;
(iv)(A) advise Xxxxx after the Company shall receive notice or
otherwise obtain knowledge of the issuance of any order by the SEC
suspending the effectiveness of the Registration Statement or any
amendment thereto or of the initiation or threatening of any
proceeding for that purpose and (B) promptly use its best efforts to
prevent the issuance of any stop order or to obtain its withdrawal
promptly if a stop order should be issued;
(v)(A) prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus forming
a part thereof as may be necessary to keep the Registration Statement
effective for the lesser of (I) a period of time necessary to permit
Xxxxx to dispose of the Registration Shares in accordance with the
intended methods of disposition as set forth in the Registration
Statement and (II) 120 days and (B) comply with the provisions of the
Securities Act with respect to the disposition of the Registration
Shares covered by the Registration Statement during such period in
accordance with the intended methods of disposition by Xxxxx set
forth in the Registration Statement;
(vi) furnish to Xxxxx such number of copies of the Registration
Statement, each amendment and supplement thereto, the prospectus
included in the Registration Statement (including each preliminary
prospectus) and such other documents as Xxxxx may reasonably request
in order to facilitate the disposition of the Registration Shares
owned by Xxxxx;
(vii) use its best efforts to register or qualify such
Registration Shares under such other securities or blue sky laws of
such jurisdictions as determined by the underwriters after
consultation with the Company and Xxxxx (or by the Company after
consultation with Xxxxx, if there is no underwriter), and do any and
all other acts and things which may be reasonably necessary or
advisable to enable Xxxxx to consummate the disposition in such
jurisdictions of the Registration Shares (provided that the Company
shall not be required to (A) qualify generally to do business in any
jurisdiction in which it would not otherwise be required to qualify
but for this Section 2(b)(vii), (B) subject itself to taxation in any
such jurisdiction or (C) consent to general service of process in any
such jurisdiction);
(viii) notify Xxxxx, 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 Registration
Statement would contain an untrue statement of a material
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fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and, at
the request of Xxxxx, prepare a supplement or amendment to the
Registration Statement so that the Registration Statement shall not,
to the Company's knowledge, 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.
(c) Expenses. The parties agree as follows:
(i) Subject to clause (ii) of this Section 2(c) the Company shall
pay, on behalf of Xxxxx all reasonable out-of-pocket expenses incurred in
connection with a Piggyback Registration pursuant to Section 2(a) of this
Agreement, including, but not limited to, all SEC and Blue Sky registration and
filing fees and related expenses; word processing, duplicating and printing
expenses; fees and disbursements of legal counsel for the Company including, if
different, Blue Sky counsel, and of the Company's independent public
accountants required by or incident to compliance with all applicable SEC and
Blue Sky laws, rules and regulations; and transfer agents' fees expenses in
connection with any Piggyback Registration.
(ii) All underwriting discounts and selling commissions relating to
Registration Shares in connection with a Piggyback Registration shall be borne
by the holders of such Registration Shares pro rata.
(d) Assignment of Registration Rights. Xxxxx may assign his rights
under this Article 2 only to his spouse or any descendant of Xxxxx, or to any
trust for the benefit of any of such persons; provided that no such assignment
shall increase the Company's obligations to effect registrations or pay
expenses thereof.
(e) Compliance with Law. In consideration for the Company agreeing to
its obligations under this Article 2, Xxxxx agrees, with respect to any
Piggyback Registration, not to sell, make any short sale of, pledge, loan,
grant any option for the purchase of, or otherwise dispose of any Registration
Shares in any manner that would violate any applicable law, rule or regulation.
3. INDEMNIFICATION.
(a) Indemnification by the Company. In the event of any registration,
qualification or compliance effected with respect to Registration Shares under
the Securities Act, state blue sky laws or otherwise, the Company shall, and
hereby does, indemnify and hold harmless Xxxxx, each other Person who
participates as an underwriter in the offering or sale of Registration Shares
and each other Person, if any, who controls any such underwriter within the
meaning of Section 15 of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which Xxxxx or any such
underwriter or controlling person may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any registration statement under which the
Registration Shares were registered under the Securities
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Act, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or any other
document, or any 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 in which they were made not misleading, and the
Company shall reimburse Xxxxx, and each such underwriter and controlling person
for any legal or any other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, liability, action or
proceeding; provided that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or expense (or action
or proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement or other document in
reliance upon and in conformity with information furnished to the Company
through an instrument duly executed by or on behalf of Xxxxx or such
underwriter, as the case may be, specifically stating that it is for use in the
preparation thereof; and provided further that the Company shall not be liable
to any Person who participates as an underwriter in the offering or sale of
Registration Shares or any other Person, if any, who controls such underwriter
within the meaning of the Securities Act, in any such case to the extent that
any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of such Person's failure to send or give a copy
of the final prospectus, as the same may be then supplemented or amended, to
the Person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the
sale of Registration Shares to such Person if such statement or omission was
corrected in such final prospectus. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of the
Shareholders, or any such controlling person and shall survive the transfer of
the Registration Shares by Xxxxx.
(b) Indemnification by Xxxxx. In the event of any registration,
qualification or compliance effected with respect to Registration Shares under
the Securities Act, state blue sky laws or otherwise, Xxxxx shall, and hereby
does, indemnify and hold harmless (in the same manner and to the same extent as
set forth in Section 3(a)) the Company, each director of the Company, each
officer of the Company and each other Person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, with respect to any
statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
other document, if such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with information about
Xxxxx furnished to the Company through an instrument duly executed by Xxxxx
specifically stating that it is for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement or other document. Such indemnity shall remain in full
force and effect, regardless of any investigation made by or on behalf of the
Company or any such director, officer or controlling person and shall survive
the transfer by such seller of the securities of the Company being registered.
(c) Shareholder Information. Xxxxx shall provide the Company with such
information with respect to the Registration Shares to be sold, the plans for
the proposed disposition thereof and such other information as shall, in the
opinion of counsel for the Company,
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be necessary to enable the Company to include in such registration statement
all material facts required to be disclosed with respect to Xxxxx.
(d) Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in Section 3(a) or 3(b), such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action; provided that
the failure of any indemnified party to give notice as provided herein shall
not relieve the indemnifying party of its obligations under Section 3(a) or
3(b), except to the extent that the indemnifying party is actually prejudiced
by such failure to give notice. In case any such action is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may
exist or the indemnified party may have defenses not available to the
indemnifying party in respect of such claim, the indemnifying party shall be
entitled to participate in and to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall be liable for any settlement of any
action or proceeding effected without its written consent. No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement which 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 of such claim or
litigation.
(e) Indemnification Payments. Any indemnification payment required by
this Section 3 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
4. RESTRICTIONS ON TRANSFER OF SHARES; RULE 144.
(a) Restrictions on Transfer of Shares. Except as otherwise expressly
provided for in this Agreement, Xxxxx agrees that he will not sell, transfer,
pledge, hypothecate or otherwise dispose of any Shares for a period of two (2)
years from the date of this Agreement. The certificates representing the Shares
shall have placed thereon the following legend:
"The Shares represented by this certificate have not been
registered under the Securities Act and may not be sold or
transferred except in compliance with such Act. In addition, the
Shares represented by this Certificate are subject to the
provisions of a Shareholder's Agreement dated as of July __, 1996
between Rent-Way, Inc. and one of the shareholders of Rent-Way,
Inc., a copy of which is on file at the office of Rent-Way, Inc."
(b) Rule 144. The Company shall take all actions reasonably necessary
to enable Xxxxx to sell the Shares without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 under the
Securities Act, as such Rule may be amended from
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time to time, or any similar rule or regulation hereafter adopted by the SEC,
including filing on a timely basis all reports required to be filed under the
Exchange Act. Upon the request of Xxxxx, the Company shall deliver to Xxxxx a
written statement as to whether it has complied with such requirements. The
Company shall cooperate with Xxxxx to enable such sales to be made in
accordance with applicable laws, rules and regulations, the requirements of the
Company's transfer agent and the reasonable requirements of any broker through
which the sales are proposed to be executed, and shall, upon request, furnish
unlegended certificates representing Shares in such numbers and denominations
as any Shareholder shall reasonably require for delivery pursuant to such
sales.
5. GENERAL PROVISIONS.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto. Any failure of a
party to comply with any obligation, covenant, agreement or condition contained
in this Agreement may be waived by the other party only by a written instrument
signed by such other party, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure of compliance.
(b) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed effective upon receipt (or refusal of receipt)
and shall be delivered personally or sent by telex, telecopy or registered,
overnight or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(i) if to the Company, to:
Rent-Way, Inc.
0000 Xxxx Xxxx Xxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxxx
with a copy to:
Xxxxxxx, Xxxx, Xxxxxxx, Xxxxx & Goodyear, LLP
0000 Xxx X&X Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx., Esq.
Xxxx X. Xxxxxxx, Esq.
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(ii) if to Xxxxx, as follows:
Xxx Xxxxx
00 Xxxxxx Xxxxx
Xxx Xxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxxx Xxxxxx, Esq.
Xxxxxx, Akin & Xxxxxx
0000 X. Xxxxxx Xxxxxx
Xxxxx 000
P.O. Box 25047
Wilmington, Delaware 19899
(c) Interpretation. When a reference is made in this Agreement to a
Section, Exhibit or Schedule, such reference shall be to a Section of, Exhibit
to or Schedule to this Agreement, unless otherwise indicated. The headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement. Wherever the
words "include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation."
(d) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one of the counterparts has been signed by each of
the parties and delivered to the other party, it being understood that both
parties need not sign the same counterpart.
(e) Entire Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire Agreement and supersedes
all prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof.
(f) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania, without regard
to conflict of law rules.
IN WITNESS WHEREOF, the Company and Xxxxx have caused this Agreement
to be signed by the respective persons thereunto duly authorized, all as of the
date first written above.
RENT-WAY, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxxx
President
/s/ Xxx Xxxxx
Xxx Xxxxx
