1
EXHIBIT 10.25
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"), Xxxxx X. Xxxxx and Xxxxxxxx X. Xxxxx and their
permitted assigns ( collectively the "Holders"). Certain other capitalized terms
used herein are defined in Section 8 and throughout this Agreement.
WHEREAS, Nations and the Holders have entered into a Stock Purchase
Agreement dated as of May ___, 1998, (the "Stock Purchase Agreement") pursuant
to which Nations shall issue a promissory note to the Holders (the "Promissory
Note"), and the principal and accrued interest 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 Holders 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 Stock Purchase Agreement and the Promissory
Note, the parties agree as follows:
1. PIGGY-BACK REGISTRATION.
(a) The Holders of the Registrable Shares are hereby granted the
following piggy-back registration rights with respect to the Registrable Shares
(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). 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, prior to such filing, give 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 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 such Holder or Holders to be registered under the
Securities Act to the extent necessary to permit their sale or other disposition
in accordance with the intended methods of distribution specified in the request
of such Holder or Holders.
(b) If, by virtue of this agreement, the Holders request and are
entitled to inclusion in such registration, Nations shall, (together with the
Holders and 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
2
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 Holders 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
Holders 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 Holders and Stockholders 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 Holders or Stockholders 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 Holders such
reasonable number of copies of the Registration Statement, such prospectuses as
are contained in the Registration Statement and such other documents as the
Holders 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 Holders of the filing of such amendments or
supplements to the 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 Nations Shares 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 Holders 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
2
3
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. DURATION. Nations shall maintain the effectiveness of the Registration
Statement for one (1) year from the effective date of registration of the
Registrable Shares.
6. 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.
7. INDEMNIFICATION
(a) Nations will indemnify and hold harmless the Holders from and
against any and all losses, damages, liabilities, costs and expenses to which
the Holders or any such controlling person 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 any Holder or such controlling person in writing specifically
for use in the preparation thereof.
(b) The Holders, jointly and severally, 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, 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.
(c) Promptly after receipt by an indemnified party pursuant to the
provisions of paragraph (a) or (b) of this Section 7 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
3
4
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 any Holder
or Holders 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 or Holders
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 7(a).
8. 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 converted by
the Holders in accordance with the terms of the Promissory Note issued by the
Company to the Holders and any other shares of capital stock of Nations issued
to the Holders in respect of the Common Stock as a result of stock splits, stock
dividends, reclassification, recapitalization, mergers, consolidations or
similar events.
4
5
"Registration Statement" shall mean any registration statement of
Nations, except an initial Registration Statement, on any form (to be selected
by Nations) for which Nations then qualifies and which permits the secondary
resale thereunder of Registrable Shares. 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.
9. MISCELLANEOUS.
(e) 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 Purchase
Agreement.
(f) 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.
(g) 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.
(h) 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.
(i) Entire Agreement. This Agreement, together with the 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.
(j) Counterparts. This Agreement may be executed in separate
counterparts, each of which shall collectively and separately, constitute one
agreement.
5
6
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
NATIONSRENT, INC.
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
---------------------------------------------
XXXXX X. XXXXX, individually
---------------------------------------------
XXXXXXXX X. XXXXX, individually
6
