1
Exhibit 99.1
XXXX HOLDINGS LIMITED PARTNERSHIP
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
January 22, 2001
REF Equity Limited X.X. Xxxxxx Capital Corporation
Xxxx Xxxx Xxxxxxxx 00 Xxxx Xxxxxx, 14th Floor
X.X. Xxx 0000 Xxx Xxxx, Xxx Xxxx 00000
Harbour Drive Attn: Xxxxxxxxxxx Xxxxxxx
Grand Cayman, Cayman Islands B.W.I.
Attn: Xxxxxx Xxxxxxx
DB Capital Investors, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxxx
Re: PURCHASE AND SALE OF STOCK
Gentlemen:
This letter agreement sets forth our understanding and agreement
regarding the sale by Xxxx Holdings Limited Partnership ("Xxxx") of an aggregate
of 1,379,311 shares of common stock (the "Shares") of NationsRent, Inc.
("NationsRent"), in consideration of the purchase prices hereinafter set forth,
to the following entities in the following amounts: to REF Equity Limited
("REF"), 689,655 Shares; to DB Capital Investors, L.P. ("DB Capital"), 344,828
Shares; and to X.X. Xxxxxx Capital Corporation ("X.X. Xxxxxx"), 344,828 Shares.
REF, DB Capital and X.X. Xxxxxx are hereinafter referred to collectively as the
Purchasers. The Shares are being sold pursuant to NationsRent's Registration
Statement No. 333-88603 filed with the Securities and Exchange Commission, and
Xxxx has delivered to each Purchaser a copy of the prospectus thereunder dated
October 20,1999 and a copy of Supplement No. 1 thereto dated May 4, 2000.
1. TRANSACTION.
(a) At the time of execution and delivery of this agreement,
(i) Xxxx will sell to REF all of its right, title and interest
in and to 689,655 of the Shares in consideration of the payment by REF of the
purchase price therefor, which shall be $1.8125 per share, or $1,249,999.69 in
the aggregate;
(ii) Xxxx will sell to DB Capital all of its right, title and
interest in and to 344,828 of the Shares in consideration of the payment by DB
Capital of the purchase price therefor, which shall be $1.8125 per share, or
$625,000.75 in the aggregate; and
(iii) Xxxx will sell to X.X. Xxxxxx all of its right, title
and interest in and to 344,828 of the Shares in consideration of the payment by
X.X. Xxxxxx of the purchase price therefor, which shall be $1.8125 per share, or
$625,000.75 in the aggregate.
(b) Xxxx hereby directs the Purchasers to pay the amounts referred to
in section 1(a) above by wire transfer to the account of Bear Xxxxxxx Securities
Corp. in accordance with the wire transfer instructions attached hereto as
Exhibit A, for the purpose of paying down the balance of an outstanding margin
loan from Bear to Xxxx.
2
(c) Simultaneously with the execution and delivery of this agreement,
Xxxx will execute and deliver to each of REF, DB Capital and X.X. Xxxxxx a stock
power transferring the number of Shares being purchased by such entity as set
forth in section 1(a) above.
(d) Simultaneously with the execution and delivery of this agreement,
Xxxx will deliver to NationsRent a stock certificate representing at least
1,379,311 shares of common stock of NationsRent (the "Stock Certificate"). As
soon as practicable thereafter, NationsRent will cancel such certificate and
issue and deliver an unlegended certificate representing 689,655 Shares to REF,
an unlegended certificate representing 344,828 Shares to DB Capital, an
unlegended certificate representing 344,828 Shares to X.X. Xxxxxx and a
certificate representing the balance of the shares represented by the Stock
Certificate to Xxxx.
2. PUT.
(a) Effective immediately upon execution and delivery of this
agreement, each Purchaser shall have the right to require Xxxx to repurchase all
(but not less than all) of the Shares that such Purchaser is purchasing
hereunder at a purchase price for such repurchase of $1.8125 per share, which a
Purchaser may exercise by giving written notice thereof to Xxxx on or before
July 25, 2001.
(b) In the event of a repurchase of Shares pursuant to this section 2,
then on a date to be agreed upon by the relevant parties that is not later than
three business days after receipt of the notice of repurchase, the Purchaser or
Purchasers from which Shares are being repurchased shall deliver the
certificates representing the Shares being repurchased to Xxxx, endorsed in
blank, against payment therefor by wire transfer to the accounts designated by
the Purchaser or Purchasers from which Shares are being repurchased.
3. CERTAIN REPRESENTATIONS.
(a) Xxxx hereby represents and warrants to the Purchasers that:
(i) It owns the Shares free and clear of any lien, pledge,
security interest, hypothecation, assignment, charge or other encumbrance of
title; and each of REF, DB Capital and X.X. Xxxxxx shall receive good and valid
title to the Shares being purchased by it, free and clear of any lien, pledge,
security interest, hypothecation, assignment, charge or other encumbrance,
including any tax liens and charges;
(ii) It is a limited partnerhip duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
organized; it has the full power and authority to enter into and perform this
agreement; its execution, delivery and performance of this agreement (A) has
been duly authorized by all necessary partnership actions by it, (B) does not
violate, conflict with or constitute a default under its partnership agreement
or other organizational documents, or any contract, agreement or instrument to
which it is a party or by which it is bound, (C) does not constitute a violation
of any law, rule or regulation, or judgment or order, applicable to it, and (D)
does not require the consent of any person or entity;
(iii) This agreement is a valid and binding obligation of Xxxx
enforceable against it in accordance with its terms;
(iv) The Unaudited Estimated Statement of Financial Condition
of Xxxxx X. and Xxxxxxx X. Xxxx at December 31, 2000 that has been delivered to
the Purchasers in connection with this agreement is true and correct in all
material respects as of the date hereof; and
(v) It and Xxxxx X. Xxxx have obtained advice from their own
counsel as to the securities laws implications for them of the transactions
contemplated hereby, and neither of them has relied on any advice from the
Purchasers or their counsel as to such matters.
2
3
(b) Each Purchaser hereby severally and not jointly represents and
warrants as to itself and not as to the other Purchasers as follows:
(i) It is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is organized; it has the
full power and authority to enter into and perform this agreement; its
execution, delivery and performance of this agreement (A) has been duly
authorized by all necessary corporate or partnership actions by it, as the case
may be, (B) does not violate, conflict with or constitute a default under its
organizational documents, or any contract, agreement or instrument to which it
is a party or by which it is bound, (C) does not constitute a violation of any
law, rule or regulation, or judgment or order, applicable to it, and (D) does
not require the consent of any person or entity;
(ii) This agreement is its valid and binding obligation,
enforceable against it in accordance with its terms;
(iii) REF is acquiring the Shares that it is purchasing
hereunder for its own account and/or for the account of affiliates of Investcorp
S.A. ("Investcorp"). Each other Purchaser is acquiring the Shares that it is
purchasing hereunder for its account and/or for the account of its affiliates.
None of the Purchasers is acquiring the Shares with a view toward distribution
in a manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"). None of the Purchasers, nor Investcorp, nor any person or
entity acting on their behalf has taken or will take any action in connection
with the transactions contemplated by this Agreement which would subject the
offering or sale of the Shares to the provisions of Section 5 of the Securities
Act;
(iv) REF represents that by reason of the business or
financial experience of Investcorp and its affiliates, REF and its shareholders
have the capacity to protect their own interests in connection with the
transaction contemplated in this Agreement. Each other Purchaser represents that
by reason of its and its affiliates' business or financial experience, such
Purchaser and its shareholders, if any, have the capacity to protect their own
interests in connection with the transaction contemplated in this Agreement; and
(v) It has obtained advice from its own counsel as to the
securities laws implications for it of the transactions contemplated hereby, and
it has not relied on any advice from Xxxx or its counsel as to such matters.
4. CERTAIN INDEMNITIES.
(a) Xxxx agrees to indemnify and hold the Purchasers harmless against
and in respect of any misrepresentation made by Xxxx in this agreement or any
breach of Xxxx'x obligations under this agreement and any and all damages,
liabilities, losses and expenses (including reasonable attorneys' fees) of any
kind or nature whatsoever which may be sustained or suffered by any of the
Purchasers by reason of any such misrepresentation or breach or by reason of any
allegation, claim, action or proceeding asserted or instituted against any of
them that is based upon, arises from or alleges any such misrepresentation or
breach.
(b) Each Purchaser agrees to indemnify and hold Xxxx harmless against
and in respect of any misrepresentation made such Purchaser in this agreement or
any breach of such Purchaser's obligations under this agreement and any and all
damages, liabilities, losses and expenses (including reasonable attorneys' fees)
of any kind or nature whatsoever which may be sustained or suffered by Xxxx by
reason of any such misrepresentation or breach or by reason of any allegation,
claim, action or proceeding asserted or instituted against Xxxx that is based
upon, arises from or alleges any such misrepresentation or breach.
5. GOVERNING LAW. This agreement and all matters arising hereunder
shall be governed by and construed in accordance with the law of the State of
New York, without giving effect to the principles of conflicts of law thereof.
3
4
6. CONSENT TO JURISDICTION AND CERTAIN RELATED MATTERS.
(a) Each of the parties hereto hereby consents to be subject to the
personal jurisdiction of the state and federal courts of or for the State of New
York in any proceeding relating to, arising out of or in connection with this
agreement and agree that the sole forum for resolving disputes in any such
proceeding shall be such courts.
(b) Each of the parties hereto hereby waives any objection (on the
grounds of lack of jurisdiction or FORUM NON CONVENIENS or otherwise) to the
exercise of such jurisdiction over it by any of such courts or the laying of
venue in any of such courts and agrees that, in any such proceeding, service of
process may be made by certified mail, return receipt requested in accordance
with section 7 of this agreement or in any other manner permitted by law.
7. NOTICES. Any notice, demand, offer, consent, report, approval or
other written instrument required or permitted to be given pursuant to this
agreement shall be in writing signed by the party giving such notice and shall
be delivered (a) by hand or (b) by certified letter, return receipt requested,
or (c) by nationally recognized overnight courier service or (d) by facsimile
transmission confirmed by a copy sent by first class mail, to the other parties
at the address as set forth on the first page hereof and shall be effective upon
receipt. Each party shall have the right to change the place to which notice
shall be sent or delivered by similar notice sent in like manner to the other
parties.
8. ASSIGNMENT; BINDING AGREEMENT. This agreement may not be assigned
without the prior written consent of the other parties hereto. Subject to the
foregoing, this agreement shall be binding on and inure to the benefit of all of
the parties hereto and their respective successors and assigns.
9. SEVERABILITY. If any provision of this agreement shall for any
reason be held invalid, illegal or unenforceable in any respect, such provision
shall be enforced to the maximum extent possible, and such invalidity,
illegality or unenforceability shall not affect any other provision of this
agreement.
10. AMENDMENTS. This agreement may not be amended other than by written
instrument executed by the parties hereto.
11. SURVIVAL. The representations and warranties set forth herein shall
survive the consummation of the transactions contemplated hereby.
12. COUNTERPARTS; EXECUTION AND DELIVERY. This agreement may be
executed simultaneously in one or more counterparts, each one of which is hereby
deemed an original, but all of which together shall constitute one and the same
instrument. This agreement shall be deemed to have been executed and delivered
by a party hereto upon delivery of an executed copy hereof by facsimile
transmission. The original shall be furnished promptly thereafter.
This agreement is being executed and delivered by all of the
undersigned persons and entities at 9:00 p.m. on January 22, 2001.
Sincerely,
XXXX HOLDINGS LIMITED PARTNERSHIP
By:
-------------------------------------
Name:
Title:
4
5
Accepted and agreed as of
the date first written above:
REF EQUITY LIMITED X.X. XXXXXX CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxxxxxx Xxxxxxx
------------------------------- --------------------------------
Name: The Director Ltd. Name: Xxxxxxxxxxx Xxxxxxx
Title: Director Title: Partner
DB CAPITAL INVESTORS, L.P.
By: DB Capital Partners, L.P.,
its general partner
By: DB Capital Partners, Inc.,
its general partner
By: /s/ Xxx X. Xxxxxxx
--------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
Executed by the undersigned solely for purposes of acknowledging its obligations
under section 1(d) above:
NATIONSRENT, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
The undersigned hereby guarantees the full and prompt payment and performance of
all liabilities and obligations of Xxxx under Sections 2(b), 2(c) and 4(a) of
this agreement. The undersigned represents that his execution, delivery and
performance of this agreement does not violate, conflict with or constitute a
default under any contract, agreement or instrument to which he is a party or by
which he is bound, does not constitute a violation of any law, rule or
regulation, or judgment or order, applicable to him, and does not require the
consent of any person or entity, and that this agreement is his valid and
binding obligation, enforceable against him in accordance with its terms.
------------------------------
XXXXX X. XXXX
5
