1
EXHIBIT 10.29
FORM OF
NATIONSRENT, INC.
SUBSCRIPTION AGREEMENT
NationsRent, Inc.
000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
1. Subscription. The undersigned hereby subscribes to purchase shares
(the "Shares") of the common stock, $0.01 par value per share (the "Common
Stock"), of NationsRent, Inc., a Delaware corporation (the "Corporation), and
agrees to contribute to the Corporation, at such time or times as the board of
directors of the Corporation (the "Board of Directors") may specify, the amount
of the commitment set forth on the signature page hereof that has been accepted
by the Company (the "Commitment"). This Subscription Agreement shall be
submitted to the Corporation by May 28, 1998.
2. Payment of Commitment. The Commitment shall be payable as follows:
100% of the Commitment shall be payable, on or before June 1, 1998, in
the form of the undersigned's check payable to NationsRent, Inc. delivered to
Xxxxxx X.X. Xxxxx at 000 X. Xxx Xxxx Xxxx., Xxxxx 0000, Xxxx Xxxxxxxxxx, XX
00000 or by wire transfer to:
Wire to: NationsBank, N.A.
Fort Lauderdale, FL
ABA Number: 000000000
For Credit to: NationsRent, Inc.
Clearing Account
Account Number: 003660952537
3. Issuance of Shares and/or Notes.
(1) The Corporation shall advise the undersigned that it has
accepted this Subscription Agreement and shall advise the undersigned of the
amount of the Commitment accepted by the Corporation, on or before May 290,
1998. Upon acceptance of this Subscription Agreement by the Corporation, the
Corporation shall issue, in the name of the undersigned, certificates evidencing
Shares of the Corporation's common stock equal in number to the amount
determined by dividing the total amount of the Commitment by $10.00 per share.
All of such certificates shall be held in escrow by the Corporation, pursuant to
the terms of this Subscription Agreement.
2
(2) Upon the payment in full by the undersigned of his Commitment,
the Corporation shall release from escrow and deliver to the undersigned a
certificate or certificates evidencing a number of shares equal to the dollar
amount of the Commitment actually paid to the Corporation by the undersigned
divided by $10.00 per share.
4. Default; Repurchase. In the event the undersigned fails to pay any
portion of the Commitment in accordance with the provisions of Paragraph 2
above, the undersigned shall forfeit his right hereunder to receive the Shares
issued in his name which the Corporation is then holding in escrow pursuant to
Paragraph 3(a) above, which Shares shall be cancelled and reclassified as
authorized but unissued Shares. The undersigned may retain all Shares previously
issued and delivered to him for which payment has been received and shall
thereafter be released from any further liability to the Corporation to pay the
remaining unpaid portion of his Commitment. If, at the time of the forfeiture
referred to immediately above, the dollar amount of the Commitment actually paid
to the Corporation by the undersigned exceeds the number of Shares issued and
delivered to the undersigned, the Corporation shall promptly refund such excess
to the undersigned, with interest on such excess amount at the rate of 6% per
annum.
5. Additional Requirements. For and in consideration of the right to
subscribe to purchase Shares of the Corporation under the terms of this
Subscription Agreement, the undersigned agrees to grant a proxy to be held and
exercised jointly by H. Xxxxx Xxxxxxxx and Xxxxx X. Xxxx and to grant a right of
first refusal to the Corporation which right of first refusal shall terminate
immediately following the consummation of the Qualified IPO. Accordingly, the
undersigned agrees to execute and deliver to the Corporation an Irrevocable
Proxy and Right of First Refusal, in the form attached hereto as Exhibit "A" and
deliver such agreement on or before June 1, 1998.
6. Representations and Warranties. The undersigned represents and
warrants to the Corporation as follows:
(1) The undersigned is an "accredited investor" as that term is
defined in Rule 501 of Regulation D under the Securities Act of 1933.
(2) The undersigned represents that he is a sophisticated investor,
has had prior experience with investments of a similar nature, and that the
undersigned's knowledge and experience in financial and business matters are
such that he is capable of evaluating the merits and risks of an investment in
the Corporation, that he is not disproportionately invested in illiquid
investments and will not become so by reason of this investment, that he does
not require the funds invested for his normal expenses, and that he can afford
to lose his entire investment in the Corporation. The undersigned understands
that the Corporation has recently commenced business operations, has not yet
generated substantial amounts of revenues from operations, and that an
investment in the Shares involves a high degree of risk.
(3) The undersigned understands that no Federal or state agency has
recommended or endorsed the Shares or made any finding or determination as to
the fairness for public investment of the Shares.
2
3
(4) All material documents, records and books pertaining to the
Corporation and the Shares which the undersigned has requested have been made
available to the undersigned, and the undersigned also confirms that he has been
given an opportunity to make any further inquiries of the Corporation and its
representatives that the undersigned desires to make and that each such inquiry
has been answered, or requested information provided, to his satisfaction. In
evaluating the suitability of an investment in the Corporation, the undersigned
has not relied upon any representations or other information (whether oral or
written) other than as set forth in this Subscription Agreement or as contained
in any documents delivered or answers given in writing by the Corporation to
questions furnished to the Corporation.
(5) The undersigned understands that the Shares have not been
registered under the Securities Act of 1933 and, therefore, cannot be sold or
transferred unless either they are subsequently registered under such Act (as
well as under any applicable state securities laws) or an exemption from such
registration is available. The undersigned is also aware that there is no
established market for the Shares, and further, that the undersigned's right to
transfer the Shares is restricted and depends upon the consent of the Board of
Directors of the Corporation (which may be granted or withheld in its sole
discretion), and the undersigned agrees that certificates representing the
Shares may be so legended.
(6) The undersigned is the sole party in interest as to his
investment in the Corporation, and the undersigned is acquiring the Shares
solely for investment for his or its own account and not with a view to or for
sale in connection with any distribution of the Shares and has no present
agreement, understanding or arrangement to subdivide, sell, assign, transfer, or
otherwise dispose of all or any part of the Shares to any other person.
(7) The residence or principal place of business of the undersigned
is in the state shown on the signature page hereof and the undersigned has no
present intention of changing such residence or principal place of business.
(8) The social security number or taxpayer identification number of
the undersigned is as set forth on the signature page hereof.
(9) This Subscription Agreement has been duly executed and delivered
by the undersigned and constitutes the legal, valid and binding obligation of
the undersigned, enforceable against the undersigned in accordance with its
terms, except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally and general principles of equity.
3
4
(10) The undersigned has been advised and hereby acknowledges
that Florida investors are entitled to rescind their purchase within three (3)
days after the first tender of consideration by the undersigned to the
Corporation in connection with this subscription.
(11) The undersigned has been advised and hereby acknowledges
that he or it has carefully considered the risk factors attached hereto as
Exhibit "B" in evaluating whether to undertake the investment in the Shares as
provided in this Subscription Agreement.
7. Registration Rights. The undersigned shall have the following rights
with respect to the Shares issued to them hereunder.
(1) Registration Rights for Shares; Filing of Registration
Statement. The Corporation will utilize reasonable efforts to cause, as soon as
practicable following the consummation of a Qualified IPO, a registration
statement to be filed under the Securities Act of 1933, as amended (the "Act"),
or a pending registration statement to be amended for the purpose of registering
the Shares for resale by the undersigned (the "Registration Statement"). The
Corporation will use reasonable efforts to have the Registration Statement
become effective and cause the Shares to be registered under the Act, and
registered, qualified or exempted under the state securities laws of such
jurisdictions as the undersigned reasonably requests, as soon as is reasonably
practicable. Notwithstanding the foregoing, the Corporation may delay filing the
Registration Statement, and may withhold efforts to cause the Registration
Statement to become effective, if the Corporation determines in good faith that
such registration might interfere with or affect the negotiation or completion
of any transaction that is being contemplated by the Corporation (whether or not
a final decision has been made to undertake such transaction) at the time the
right to delay is exercised. In addition to the Shares, the Corporation shall
also afford the undersigned the right to include any other shares of the Common
Stock owned by the undersigned on the date hereof (the "Other Owned Shares").
(2) Expenses of Registration. The Corporation shall pay all
expenses incurred by the Corporation in connection with the registration,
qualification and/or exemption of the Shares, including any Securities Exchange
Commission ("SEC") and state securities law registration and filing fees,
printing expenses, fees and disbursements of the Corporation's counsel and
accountants, transfer agents' and registrars' fees, fees and disbursements of
experts used by the Corporation 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. The
Corporation shall not, however, be liable for any sales, broker's or
underwriting commissions upon sale by undersigned of any of the Shares.
(3) Furnishing of Documents. The Corporation shall furnish to
the undersigned such reasonable number of copies of the Registration Statement,
such prospectuses as are contained in the Registration Statement and such other
documents as the undersigned may reasonably request in order to facilitate the
resale of the Shares.
4
5
(4) Amendments and Supplements. The Corporation shall prepare
and promptly file with the SEC and promptly notify the undersigned 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 Shares is required to be delivered
under the 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. The Corporation shall also advise the undersigned
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. If, after a Registration Statement becomes effective, the Corporation
advises the undersigned that the Corporation considers it appropriate that the
Registration Statement be amended, the undersigned shall suspend any further
sales of the Shares until the Corporation advises the undersigned that the
Registration Statement has been amended.
(5) Duration. The Corporation shall maintain the effectiveness
of the Registration Statement until such time as the Corporation reasonably
determines, based on an opinion of counsel, that the undersigned will be
eligible to sell all of the Shares then owned by the undersigned without the
need for continued registration of the shares, in the three month period
immediately following the termination of the effectiveness of the Registration
Statement.
(6) Further Information. If Shares owned by the undersigned are
included in any registration, the undersigned shall furnish the Corporation such
information regarding himself as the Corporation may reasonably request and as
shall be required in connection with any registration, qualification or
compliance referred to in this Agreement.
(7) "Qualified IPO". For purposes of this Agreement a "Qualified
IPO" shall mean the consummation by the Corporation of a registration under the
Act of an initial public offering of its Shares, such that, thereafter, the
Shares of the Common Stock are listed on a national securities exchange or
regularly quoted in a market maintained by one or more members of a national or
affiliated securities association.
(8) The Corporation agrees to indemnify and hold harmless the
undersigned from and against any and all damages which may be incurred by the
undersigned under federal or state securities laws, insofar as such damages are
caused by any material misstatement or omission in the Registration Statement,
unless such misstatement or omission was made in conformity with information
furnished by or on behalf of the undersigned in writing specifically for use in
the preparation of such Registration Statement.
(9) The Corporation shall not be required to register any of
the Shares or the Other Owned Shares under the Act if, in the written opinion of
counsel for the Corporation (which counsel
5
6
shall be reasonably acceptable to the undersigned), said Shares or the Other
Owned Shares may be publicly sold without the need for compliance with the
registration provisions of the Act and applicable Blue Sky Laws.
(10) The undersigned, upon receipt of notice from the Corporation,
upon the occurrence of an event which requires a post-effective amendment to the
registration statement or a supplement to the prospectus included therein, shall
promptly discontinue the sale of the Shares or the Other Owned Shares until they
have received copies of a supplemented or amended prospectus from the
Corporation, which the Corporation shall provide as soon as practicable after
such notice.
(11) The undersigned agrees that, at such time as the
Corporation files a registration statement for an initial public offering of the
Corporation's common stock, the undersigned will use its or his best efforts to
cause the Corporation to register for sale all Shares or Other Owned Shares then
owned by the undersigned.
8. Miscellaneous.
(1) Survival. The representations, warranties, and agreements
contained herein are continuing in nature and shall survive the acceptance of
this Subscription Agreement.
(2) Governing Law. This Subscription Agreement shall be governed by
and construed in accordance with the laws of the State of Florida.
(3) Brokers and Finders. Each party hereto represents and
warrants to the other parties hereto that it has not incurred any obligation or
liability, contingent or otherwise, for brokerage or finder's fees or agent's
commissions or other like payment in connection with this Subscription Agreement
or the transactions contemplated hereby, and each party agrees to indemnify and
hold the other parties hereto harmless against and in respect of any such
obligation or liability based in any way on agreements, arrangements, or
understandings claimed to have been made by such party with any third party.
(4) Expenses. The undersigned agrees that he shall be responsible
for paying the fees and expenses that he incurs in connection with
this Subscription Agreement and the transactions contemplated hereby.
(5) Captions. The captions herein are inserted for convenience
of reference only and shall not affect the construction of this Subscription
Agreement.
(6) Pronouns and Plurals. Whenever the context may require,
any pronoun used in this Subscription Agreement shall include the corresponding
masculine, feminine, or neuter forms, and the singular form of nouns, pronouns
and verbs shall include the plural and vice versa.
6
7
(7) Binding Effect. This Subscription Agreement shall be binding
upon the undersigned and his permitted successors and assigns, and, to the
extent this Subscription Agreement is accepted by the Corporation, upon the
Corporation and its respective successors and assigns.
(8) Assignment. The undersigned may not assign any of his rights or
interest in or under this Subscription Agreement without the prior written
consent of the Corporation.
(9) Confidentiality. The undersigned acknowledges and agrees that in
connection with this Subscription Agreement, the Corporation shall provide the
undersigned with certain information about the properties and operations of the
Corporation. All information about (i) the terms and provisions of this
Subscription Agreement or (ii) the Corporation, its business, properties, assets
or operations, furnished to the undersigned before or after the date hereof, and
regardless of the manner in which it is furnished, is referred to in this letter
agreement as "Confidential Information". Unless otherwise agreed to in writing
by the Corporation, the undersigned agrees that except as required by law, to
keep all Confidential Information confidential and not to disclose or reveal any
Confidential Information to any person, and agrees not to use Confidential
Information for any purposes. As used in this letter, the term "person" shall be
broadly interpreted to include, without limitation, any corporation, company,
partnership, individual or other business entity.
IN WITNESS WHEREOF, the undersigned has caused this Subscription
Agreement to be duly executed as of this _______ day of May, 1998.
SUBSCRIBER:
----------------------------------
print name
Signature:
-----------------------------------
Address:
-------------------------------------
-------------------------------------
AMOUNT OF
COMMITMENT:
$
-------------------------- ---------------------------------------------
Name As It Should Appear on Stock Certificate
---------------------------------------------
Telephone Number and Facsimile Number
Soc. Sec. No.
or
Taxpayer I.D. No:
----------------------------
SUBSCRIPTION AGREEMENT NO.
-----------------------
Accepted and Agreed:
NATIONSRENT, INC.
By: May ___, 1998
------------------------------------
Its:
-----------------------------------
7
