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Exhibit 10.23
STOCK TRANSFER AGREEMENT
THIS STOCK TRANSFER AGREEMENT (this "Agreement"), dated as of February 18,
1997, is made by and among National Equipment Services, Inc., a Delaware
corporation (the "Company"), Xxxxxx X. Xxxxxx ("Xxxxxx"), Golder, Thoma,
Xxxxxxx, Xxxxxx Fund V, L.P., a Delaware limited partnership ("GTCR"), Xxxxx
Xxxxxxx ("Xxxxxxx"), Xxxxxx X'Xxxxxx ("X'Xxxxxx") and Xxxx Xxxxxxxxx
("Xxxxxxxxx," and together with GTCR, Xxxxxxx and X'Xxxxxx referred to herein
as the "Existing Stockholders"). Except as otherwise indicated, capitalized
terms used herein are defined in Section 5 hereof.
WHEREAS, pursuant to a Stock Purchase Agreement, dated as of the date
hereof (the "Acquisition Agreement"), by and among the Company, Xxxxxx, and
Aerial Platforms, Inc. ("Aerial"), the Company agreed to purchase, and Xxxxxx
agreed to sell, 100% of the stock of Aerial (the "Acquisition").
WHEREAS, as partial consideration for the Acquisition, the Company agreed
to issue to Xxxxxx 97 shares of its Class A Common Stock, par value $.01 per
share and 300 shares of its Class B Common Stock, par value $.01 per share
(collectively, the "Shares").
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Joinder. The Company, Xxxxxx and the Existing Stockholders hereby
agree that the Stockholders Agreement and the Registration Agreement are hereby
amended by adding Xxxxxx as a party thereto and as a Stockholder under the
Stockholders Agreement. Xxxxxx hereby agrees to be subject to all of the
rights and obligations and to be bound by all of the terms and conditions set
forth in the Stockholders Agreement and the Registration Agreement to the same
extent as if Xxxxxx were originally a party thereto. The Company and the
Existing Stockholders hereby waive any and all requirements and/or breaches
arising under the Stockholders Agreement, the Registration Agreement and any
agreements mentioned therein resulting from the consummation of the
transactions contemplated herein.
2. Restrictions on Transfer of Shares. In addition to the restrictions on
transfer set forth in the Stockholders Agreement and the Acquisition Agreement,
the holders of the Shares shall not sell, transfer, assign pledge or otherwise
dispose of (a "Transfer") any interest in any of the Shares except pursuant to
the following provisions:
(a) Retention of Shares. Until the fifth anniversary of the date of this
Agreement, each holder of Shares shall not Transfer any interest in any of the
Shares, except for Exempt Transfers (as defined in Section 2(b) below).
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(b) Transfer of Shares. Subject to Section 2(a) above and to any other
restrictions set forth in the Stockholders Agreement and the Acquisition
Agreement, each holder of Shares shall not Transfer any interest in any of the
Shares, except pursuant to (i) the provisions of Section 3 below or the
provisions of Section 5 or 7 of the Stockholders Agreement ("Exempt Transfers")
or (ii) the provisions of this Section 2; provided that in no event shall any
Transfer of Shares pursuant to this Section 2 be made for any consideration
other than cash payable upon consummation of such Transfer or in installments
over time. Prior to making any Transfer other than an Exempt Transfer, each
holder of Shares proposing to Transfer Shares (a "Selling Holder") will give
written notice (the "Sale Notice") to the Company and GTCR. The Sale Notice
will disclose in reasonable detail the identity of the prospective
transferee(s), the number and class of Shares to be transferred and the terms
and conditions of the proposed Transfer. The Selling Holder will not
consummate any Transfer until 110 days after the Sale Notice has been given to
the Company and to GTCR, unless the parties to the Transfer have been finally
determined pursuant to this Section 2 prior to the expiration of such 110-day
period (the date of the first to occur of such events is referred to herein as
the "Authorization Date").
(c) First Refusal Rights. The Company may elect to purchase all (but not
less than all) of the Shares to be transferred upon the same terms and
conditions as those set forth in the Sale Notice by delivering a written notice
of such election to the Selling Holder and GTCR within 60 days after the Sale
Notice has been given to the Company. If the Company has not elected to
purchase all of the Shares to be Transferred, GTCR may elect to purchase all
(but not less than all) of the Shares to be transferred upon the same terms and
conditions as those set forth in the Sale Notice by giving written notice of
such election to the Selling Holder within 90 days after the Sale Notice has
been given to GTCR. If neither the Company nor GTCR elect to purchase all of
the Shares specified in the Sale Notice, the Selling Holder may Transfer the
Shares specified in the Sale Notice at a price and on terms no more favorable
to the transferee(s) thereof than specified in the Sale Notice during the
60-day period immediately following the Authorization Date. Any Shares not
transferred within such 60-day period will be subject to the provisions of this
Section 2(c) upon subsequent Transfer. The Company may pay the purchase price
for such shares by offsetting amounts outstanding under any bona fide debts
owed by the Selling Holder to the Company.
(d) Certain Permitted Transfers. The restrictions contained in this
Section 2 will not apply with respect to transfers of Shares pursuant to
applicable laws of descent and distribution; provided that such restrictions
will continue to be applicable to the Shares after any such transfer and the
transferees of such Shares have agreed in writing to be bound by the provisions
of this Agreement.
(e) Termination of Restrictions. The restrictions on the Transfer of
Shares set forth in this Section 2 will continue with respect to each Share
until the date on which such Share has been transferred in a transaction
permitted by this Section 2 (except in a transaction contemplated by Section
2(d)); provided that in any event such restrictions will terminate on the first
to occur of a Sale of the Company or a Public Offering.
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3. Repurchase of Shares.
(a) In the event Xxxxxx ceases to be employed by the Company or its
subsidiaries for any reason (the "Termination"), the Shares (whether held by
Xxxxxx or one or more of Xxxxxx'x transferees, other than the Company, GTCR or
an affiliate of the Company or GTCR) will be subject to repurchase by the
Company and GTCR pursuant to the terms and conditions set forth in this Section
3 (the "Repurchase Option"). In the event of Termination, the purchase price
for each Share will be the Fair Market Value for such share.
(b) The Company's board of directors (the "Board") may elect to purchase
all or any portion of the Shares by delivering written notice (the "Repurchase
Notice") to the holder or holders of the Shares within 90 days after the
Termination. The Repurchase Notice will set forth the number of Shares to be
acquired from each holder, the aggregate consideration to be paid for such
shares and the time and place for the closing of the transaction.
(c) If for any reason the Company does not elect to purchase all of the
Shares pursuant to the Repurchase Option, GTCR shall be entitled to exercise
the Repurchase Option for the Shares the Company has not elected to purchase
(the "Available Shares"). As soon as practicable after the Company has
determined that there will be Available Shares, but in any event within 45 days
after the Termination, the Company shall give written notice (the "Option
Notice") to GTCR setting forth the number of Available Shares and the purchase
price for the Available Shares. GTCR may elect to purchase any or all of the
Available Shares by giving written notice to the Company within one month after
the Option Notice has been given by the Company. As soon as practicable, and
in any event within ten days after the expiration of the one-month period set
forth above, the Company shall notify each holder of Shares as to the number of
Shares being purchased from such holder by GTCR (the "Supplemental Repurchase
Notice"). At the time the Company delivers the Supplemental Repurchase Notice
to the holder(s) of Shares, the Company shall also deliver written notice to
GTCR setting forth the number of shares GTCR is entitled to purchase, the
aggregate purchase price and the time and place of the closing of the
transaction.
(d) The closing of the purchase of the Shares pursuant to the Repurchase
Option shall take place on the date designated by the Company in the Repurchase
Notice or Supplemental Repurchase Notice, which date shall not be more than one
month nor less than five days after the delivery of the later of either such
notice to be delivered. The Company and/or GTCR will pay for the Shares to be
purchased pursuant to the Repurchase Option by delivery of a check or wire
transfer of funds in the aggregate amount of the purchase price for such
shares. In addition, the Company may pay the purchase price for such shares by
offsetting amounts outstanding under any bona fide debts owed by Xxxxxx to the
Company. The Company and GTCR will be entitled to receive representations and
warranties from the sellers as to their title to the Shares being sold and to
require all sellers' signatures be guaranteed.
(e) The right of the Company and GTCR to repurchase Shares pursuant to
this Section 3 shall terminate upon the occurrence of a Public Offering.
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4. Legend. The certificates representing the Shares will bear the
following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY
ISSUED AS OF FEBRUARY [18], 1997, HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION
THEREUNDER. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN RIGHTS
OF FIRST REFUSAL AND CERTAIN OTHER AGREEMENTS SET FORTH IN A STOCK
TRANSFER AGREEMENT BETWEEN THE COMPANY AND CERTAIN STOCKHOLDERS OF
THE COMPANY DATED AS OF FEBRUARY [18], 1997. A COPY OF SUCH
AGREEMENT MAY BE OBTAINED BY THE HOLDER HEREOF AT THE COMPANY'S
PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
No holder of Shares may sell, transfer or dispose of any Shares (except
pursuant to an effective registration statement under the Securities Act)
without first delivering to the Company an opinion of counsel (reasonably
acceptable in form and substance to the Company) that neither registration nor
qualification under the Securities Act and applicable state securities laws is
required in connection with such transfer.
5. Definitions.
"Fair Market Value" of each Share means the value agreed upon by the
holder thereof and the Board; provided that if the holder thereof and the Board
are unable to agree upon such value, then the holder thereof and the Company
will share the cost, on an equal basis, of a mutually acceptable business
appraiser whose determination will be binding.
"Person" means an individual, a partnership, a limited liability company,
a joint venture, a corporation, a trust, an unincorporated organization and a
government or any department or agency thereof.
"Public Offering" means the sale in an underwritten public offering
registered under the Securities Act of 1933, as amended from time to time, of
shares of the Company's capital stock approved by the Board.
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"Registration Agreement" means that certain Registration Agreement, dated
as of June 4, 1996, among the Company and others, as the same may be amended or
amended and restated from time to time.
"Sale of the Company" means any transaction or series of transactions
pursuant to which any person(s) or entity(ies) other than GTCR in the aggregate
acquire(s) (i) capital stock of the Company possessing the voting power (other
than voting rights accruing only in the event of a default, breach or event of
noncompliance) to elect a majority of the Company's board of directors (whether
by merger, consolidation, reorganization, combination, sale or transfer of the
Company's capital stock, shareholder or voting agreement, proxy, power of
attorney or otherwise) or (ii) all or substantially all of the Company's assets
determined on a consolidated basis.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Stockholders Agreement" means that certain Stockholders Agreement, dated
as of June 4, 1996, among the Company and others, as the same may be amended or
amended and restated from time to time.
6. Miscellaneous.
(a) Remedies. The holders of Shares acquired hereunder (directly or
indirectly) will have all of the rights and remedies set forth in this
Agreement, and all of the rights and remedies which such holders have been
granted at any time under any other agreement or contract, and all of the
rights and remedies which such holders have under any law. Any Person having
any rights under any provision of this Agreement will be entitled to enforce
such rights specifically, to recover damages by reason of any breach of any
provision of this Agreement, and to exercise all other rights granted by law.
(b) Amendments and Waivers. Except as otherwise provided herein, no
modification, amendment or waiver of any provision hereof will be effective
against the Company or Xxxxxx unless such modification, amendment or waiver is
approved in writing by each of the Company and Xxxxxx. The failure of any
party to enforce any provision of this Agreement or under any agreement
contemplated hereby or under the Company's certificate of incorporation or
bylaws will in no way be construed as a waiver of such provisions and will not
affect the right of such party thereafter to enforce each and every provision
of this Agreement, any agreement referred to herein, the Company's certificate
of incorporation or bylaws in accordance with their terms.
(c) Survival of Representations and Warranties. All representations and
warranties contained herein or made in writing by any party in connection
herewith will survive the execution and delivery of this Agreement, regardless
of any investigation made by the Company or Xxxxxx or on any of their behalves.
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(d) Successors and Assigns.
(i) Except as otherwise expressly provided herein, all covenants and
agreements contained in this Agreement by or on behalf of any of the
parties hereto will bind and inure to the benefit of the respective
successors and assigns of such parties whether so expressed or not. In
addition, and whether or not any express assignment has been made, the
provisions of this Agreement which are for Xxxxxx'x benefit as Xxxxxx or
holder of Shares, as the case may be, are also for the benefit of and
enforceable by any subsequent holder of Xxxxxx'x Shares.
(ii) If a sale, transfer, assignment or other disposition of any
Shares is made in accordance with the provisions of this Agreement to any
Person, such Person shall, at or prior to the time such securities are
acquired, execute a counterpart of this Agreement with such modifications
thereto as may be necessary to reflect such acquisition, and such other
documents as are necessary to confirm such Person's agreement to become a
party to, and to be bound by, all covenants, terms and conditions of this
Agreement, the Stockholders Agreement and the Registration Agreement, each
as theretofore amended.
(e) Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable under any applicable law or rule in any jurisdiction,
such provision will be ineffective only to the extent of such invalidity,
illegality or unenforceability in such jurisdiction, without invalidating the
remainder of this Agreement in such jurisdiction or any provision hereof in any
other jurisdiction.
(f) Counterparts. This Agreement may be executed simultaneously in
separate counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together will constitute one
and the same Agreement.
(g) Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(h) Governing Law. The corporate laws of the State of Delaware will
govern all questions concerning the relative rights of the Company and its
securityholders. All other questions concerning the construction, validity and
interpretation of this Agreement will be governed by and construed in
accordance with the domestic laws of the State of Illinois, without giving
effect to any choice of law or conflict of law provision or rule (whether of
the State of Illinois or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Illinois.
(i) Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when personally delivered or
received by certified mail, return receipt
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requested, or sent by guaranteed overnight courier service. Notices, demands
and communications will be sent to parties hereto at the addresses indicated
below:
Notices to the Company:
National Equipment Services, Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
With a copy to:
Xxxxxxxx and Xxxxx
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Perl
Notices to Xxxxxx:
c/o Aerial Platforms, Inc.
0000 Xxxx Xxx
Xxxxxxxx, XX 00000
or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending party.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Stock Transfer
Agreement on the day and year first above written.
NATIONAL EQUIPMENT SERVICES, INC.
By: /s/ Xxxxx Xxxxxxx
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Its: President
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/s/ Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX
GOLDER, THOMA, XXXXXXX, XXXXXX FUND V, L.P.
By: GTCR V, L.P.
Its: General Partner
By: Golder, Thoma, Cressey, Rauner, Inc.
Its: General Partner
By: /s/ Xxxx X. Xxxxx
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Its: Principal
/s/ Xxxxx Xxxxxxx
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XXXXX XXXXXXX
/s/ Xxxxxx X'Xxxxxx
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XXXXXX X'XXXXXX
/s/ Xxxx X. Xxxxxxxxx
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XXXX XXXXXXXXX
