EXHIBIT 10.2
EXECUTION COPY
CONTRIBUTION AGREEMENT AND PLAN OF REORGANIZATION
This Contribution Agreement and Plan of Reorganization, is dated as of
June 14, 2002 (this "AGREEMENT"), by and among H&E Holdings L.L.C., a Delaware
limited liability company ("H&E HOLDINGS"), BRSEC Co-Investment II, LLC
("BRSEC-II"), Xxxx X. Xxxxxxxx ("XXXXXXXX"), Xxxxxxx Xxxxxxxx Xxxxx ("XXXXX"),
BRS Equipment Company, Inc. ("BRSEC CORP"), Xxxxxxx Investments, Inc.("XXXXXXX
INVESTMENTS"), Xxx Xxxxxxx ("XXXXXXX"), Southern Nevada Capital Corporation
("SNCC"), Xxxxxx Family Investments, L.L.C. ("XXXXXX INVESTMENTS"), Xxxxxxx
Xxxxx, Xx. ("SHARP"), Xxxxxxxxx Xxxxxx ("XXXXXX"), The Xxxxxx Family Trust
("XXXXXX TRUST"), The XxXxxxx Family Revocable Trust ("XXXXXXX TRUST"), C/J Land
& Livestock L.P. ("XXXXXX XXXXXXXX INVESTMENTS"), Xxxx and Xxxxx Xxxxxxxx
Limited Partnership ("XXXX XXXXXXXX INVESTMENTS") Xxxxxx X. Xxxxxxxx Limited
Partnership ("XXXXXX XXXXXXXX INVESTMENTS"), H&E Equipment Services L.L.C.
(f/k/a Gulf Wide Industries, L.L.C.), a Louisiana limited liability company
("GULF WIDE") and ICM Equipment Company L.L.C., a Delaware limited liability
company ("ICM"). Unless otherwise indicated herein, capitalized terms used in
this Agreement have the meanings set forth in Section 1 of this Agreement.
WHEREAS, BRSEC-II, Xxxxxxxx and Xxxxx (collectively, the "GULF WIDE
EQUITYHOLDERS") are the holders of record of all of the outstanding equity
securities (such equity securities, collectively, the "GULF WIDE EQUITY
SECURITIES") of Gulf Wide;
WHEREAS, Xxxxxxx Investments, Xxxxxxx, SNCC, Xxxxxx Investments,
Sharp, Wallin, Xxxxxx Trust, XxXxxxx Trust, Xxxxxx Xxxxxxxx Investments, Xxxx
Xxxxxxxx Investments and Xxxxxx Xxxxxxxx Investments (collectively, the "ICM
MANAGERS") and BRSEC Corp (collectively with the ICM Managers, the "ICM
EQUITYHOLDERS") are the holders of record of all of the outstanding equity
securities (such equity securities, collectively, the "ICM EQUITY SECURITIES")
of ICM; and
WHEREAS, subject to the terms and conditions contained herein, at the
Closing (as herein defined), the Gulf Wide Equityholders and the ICM
Equityholders desire to form H&E Holdings by (i) executing and delivering the
H&E Holdings LLC Agreement (as herein defined) and (ii) contributing the Gulf
Wide Equity Securities and the ICM Equity Securities, to H&E Holdings in
exchange for all of the equity securities of H&E Holdings as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
conditions and covenants herein contained, the parties agree as follows.
Section 1. DEFINITIONS. For the purposes of this Agreement, the
following terms have the meanings set forth below:
"BRSEC CORP LIQUIDATION AGREEMENT" means the Contribution and
Liquidation Agreement and Termination of Options to be entered into on the
Closing Date between BRSEC LLC and BRSEC Corp.
"BRSEC LLC" means BRS Co-Investment, LLC, a Delaware limited liability
company and, as of the date hereof, the owner of all of the issued and
outstanding capital stock of BRSEC Corp.
"CONTRIBUTIONS TO H&E HOLDINGS" means the contributions to H&E
Holdings as set forth in Section 2A hereof.
"XXXXXXXX FEBRUARY 2001 $2,000,000 PROMISSORY NOTE" means the
$2,000,000 principal amount of 10% Senior Subordinated Promissory Note issued by
ICM to Xxxxxxxx on February 20, 2001.
"GOVERNMENTAL ENTITY" means individually, and "GOVERNMENTAL ENTITIES"
means collectively, the United States of America, any state or other political
subdivision thereof, or any entity exercising executive, legislative, judicial,
regulatory or administrative functions of government, including any court.
"GULF WIDE CLASS A COMMON UNITS" means Gulf Wide's Class A Common
Units (as such term is defined in the Gulf Wide LLC Agreement).
"GULF WIDE CLASS B COMMON UNITS" means Gulf Wide's Class B Common
Units (as such term is defined in the Gulf Wide LLC Agreement).
"GULF WIDE JUNIOR PREFERRED UNITS" means Gulf Wide's Junior Preferred
Units (as such term is defined in the Gulf Wide LLC Agreement).
"GULF WIDE LLC AGREEMENT" means that certain Amended and Restated
Operating Agreement of Gulf Wide, dated as of August 10, 2001, by and among the
Gulf Wide Equityholders.
"GULF WIDE REGISTRATION RIGHTS AGREEMENT" means that certain
Registration Rights Agreement, dated as of June 29, 1999, by and among Gulf Wide
and the Gulf Wide Equityholders.
"GULF WIDE SECURITYHOLDERS AGREEMENT" means that certain
Securityholders Agreement, dated as of June 29, 1999, by and among Gulf Wide and
the Gulf Wide Equityholders.
"GULF WIDE SENIOR EXCHANGEABLE PREFERRED UNITS" means Gulf Wide's
Senior Exchangeable Preferred Units (as such term is defined in the Gulf Wide
LLC Agreement).
"GULF WIDE SENIOR SUBORDINATED PREFERRED UNITS" means Gulf Wide's
Senior Subordinated Preferred Units (as such term is defined in the Gulf Wide
LLC Agreement).
"GULF WIDE SERIES A SENIOR PREFERRED UNITS" means Gulf Wide's Series A
Senior Preferred Units (as such term is defined in the Gulf Wide LLC Agreement).
"H&E HOLDINGS CLASS A COMMON UNITS" means H&E Holdings' Class A Common
Units (as such term will be defined in the H&E Holdings LLC Agreement).
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"H&E HOLDINGS CLASS B COMMON UNITS" means H&E Holdings' Class B Common
Units (as such term will be defined in the H&E Holdings LLC Agreement).
"H&E HOLDINGS EQUITYHOLDERS" means collectively the Gulf Wide
Equityholders and the ICM Equityholders (except that, as a result of the
Liquidation of BRSEC Corp (as herein defined), BRSEC LLC shall be an "H&E
Holdings Equityholder" rather than BRSEC Corp).
"H&E HOLDINGS LLC AGREEMENT" means the Limited Liability Company
Agreement of H&E Holdings to be entered into as of the Closing among the H&E
Holdings Equityholders, which Limited Liability Company Agreement shall be
substantially in the form attached hereto as EXHIBIT A.
"H&E HOLDINGS REGISTRATION RIGHTS AGREEMENT" means the Registration
Rights Agreement of H&E Holdings to be entered into as of the Closing among H&E
Holdings and the H&E Holdings Equityholders, which Registration Rights Agreement
shall be substantially in the form attached hereto as EXHIBIT B.
"H&E HOLDINGS SECURITYHOLDERS AGREEMENT" means the Securityholders
Agreement of H&E Holdings to be entered into as of the Closing among H&E
Holdings and the H&E Holdings Equityholders, which Securityholders Agreement
shall be substantially in the form attached hereto as EXHIBIT C.
"H&E HOLDINGS SERIES A PREFERRED UNITS" means H&E Holdings' Series A
Preferred Units (as such term will be defined in the H&E Holdings LLC
Agreement).
"H&E HOLDINGS SERIES B PREFERRED UNITS" means H&E Holdings' Series B
Preferred Units (as such term will be defined in the H&E Holdings LLC
Agreement).
"H&E HOLDINGS SERIES C PREFERRED UNITS" means H&E Holdings' Series C
Preferred Units (as such term will be defined in the H&E Holdings LLC
Agreement).
"H&E HOLDINGS SERIES D PREFERRED UNITS" means H&E Holdings' Series D
Preferred Units (as such term will be defined in the H&E Holdings LLC
Agreement).
"H&E HOLDINGS UNITS" means any of the H&E Holdings Series A Preferred
Units, H&E Holdings Series B Preferred Units, H&E Holdings Series C Preferred
Units, H&E Holdings Series D Preferred Units, H&E Holdings Class A Common Units
and/or H&E Holdings Class B Common Units.
"HEAD & XXXXXXXX EQUIPMENT COMPANY" means Head & Xxxxxxxx Equipment,
L.L.C., a Louisiana limited liability company and, as of the date hereof, a
wholly-owned subsidiary of Gulf Wide.
"ICM CLASS A COMMON UNITS" means ICM's Class A Common Units (as such
term is defined in the ICM LLC Agreement).
"ICM CLASS A PREFERRED UNITS" means ICM's Class A Preferred Units (as
such term is defined in the ICM LLC Agreement).
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"ICM CLASS B PREFERRED UNITS" means ICM's Class B Preferred Units (as
such term is defined in the ICM LLC Agreement).
"ICM CLASS C PREFERRED UNITS" means ICM's Class C Preferred Units (as
such term is defined in the ICM LLC Agreement).
"ICM DEBT LIENS" means the liens on the ICM Equity Securities granted
by the ICM Equityholders in connection with ICM's senior credit agreement, as in
effect as of the date hereof.
"ICM LLC AGREEMENT" means that certain Amended and Restated Limited
Liability Company Agreement of ICM, dated as of May 31, 2002, by and among the
ICM Equityholders.
"ICM REGISTRATION RIGHTS AGREEMENT" means that certain Registration
Rights Agreement, dated as of May 26, 1999, by and among ICM and the ICM
Equityholders.
"ICM SECURITYHOLDERS AGREEMENT" means that certain Securityholders
Agreement, dated as of May 26, 1999, by and among ICM and the ICM Equityholders.
"ICM SERIES A-1 SENIOR PREFERRED REDEMPTION VALUE" means the Series
A-1 Senior Preferred Redemption Value (as such term is defined in the ICM LLC
Agreement).
"ICM SERIES A-1 SENIOR PREFERRED UNITS" means ICM's Series A-1 Senior
Preferred Units (as such term is defined in the ICM LLC Agreement).
"ICM SERIES A-2 SENIOR PREFERRED REDEMPTION VALUE" means the Series
A-2 Senior Preferred Redemption Value (as such term is defined in the ICM LLC
Agreement).
"ICM SERIES A-2 SENIOR PREFERRED UNITS" means ICM's Series A-2 Senior
Preferred Units (as such term is defined in the ICM LLC Agreement).
"ICM SERIES A-3 SENIOR PREFERRED REDEMPTION VALUE" means the Series
A-3 Senior Preferred Redemption Value (as such term is defined in the ICM LLC
Agreement).
"ICM SERIES A-3 SENIOR PREFERRED UNITS" means ICM's Series A-3 Senior
Preferred Units (as such term is defined in the ICM LLC Agreement).
"IRC" means the Internal Revenue Code of 1986, as amended.
"LAW" means all constitutions, statutes, laws, codes, ordinances,
regulations, rules, orders, judgments, writs, injunctions, acts or decrees of
any Governmental Entity.
"LIENS" means any mortgage, pledge, restriction, security interest,
encumbrance, option, lien or charge of any kind (including, without limitation,
any conditional sale or other title retention agreement or lease in the nature
thereof), any filing or agreement to file a financing statement as debtor under
the Uniform Commercial Code or any similar statute.
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"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a trust, a joint venture, an unincorporated
organization or a Governmental Entity.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules promulgated thereunder.
"TRANSACTION DOCUMENTS" means the BRSEC Corp Liquidation Agreement,
the H&E Holdings LLC Agreement, the H&E Holdings Registration Rights Agreement
and the H&E Holdings Securityholders Agreement.
"XXXXXXX INVESTMENTS FEBRUARY 2001 $4,000,000 PROMISSORY NOTE" means
the $4,000,000 principal amount of 10% Senior Subordinated Promissory Note
issued by ICM to Xxxxxxx Investments on February 20, 2001, as amended pursuant
to that certain Consent to Accept Interest in place of Cash Pay Interest dated
as of April 2002.
Section 2. CONTRIBUTIONS TO H&E HOLDINGS; CLOSING.
2A. CONTRIBUTIONS TO H&E HOLDINGS.
(i) ISSUANCE OF H&E HOLDINGS SERIES A PREFERRED UNITS. Subject to
the terms and conditions of this Agreement, at the Closing, BRSEC Corp shall
contribute to H&E Holdings the right to receive $10,500,000 of the ICM Series
A-1 Senior Preferred Redemption Value attributable to the ICM Series A-1 Senior
Preferred Units owned by BRSEC Corp and, in exchange for such contribution, H&E
Holdings shall issue to BRSEC Corp 10,500 H&E Holdings Series A Preferred Units.
(ii) ISSUANCE OF H&E HOLDINGS SERIES B PREFERRED UNITS. Subject to
the terms and conditions of this Agreement, at the Closing:
(a) Xxxxx shall contribute to H&E Holdings all right, title and
interest to the 1,235.229 Gulf Wide Series A Senior Preferred Units owned
by Xxxxx and, in exchange for such contribution, H&E Holdings shall issue
to Xxxxx that number of H&E Holdings Series B Preferred Units equal to the
then aggregate Series A Senior Preferred Redemption Value (as such term is
defined in the Gulf Wide LLC Agreement) DIVIDED BY $1,000;
(b) BRSEC-II shall contribute to H&E Holdings all right, title
and interest to the 10,000 Gulf Wide Senior Exchangeable Preferred Units
owned by BRSEC-II and, in exchange for such contribution, H&E Holdings
shall issue to BRSEC-II that number of H&E Holdings Series B Preferred
Units equal to the then aggregate Senior Exchangeable Preferred Redemption
Value (as such term is defined in the Gulf Wide LLC Agreement) DIVIDED BY
$1,000;
(c) BRSEC Corp shall contribute to H&E Holdings the right to
receive $9,200,000 of the ICM Series A-1 Senior Preferred Redemption Value
attributable to the ICM Series A-1 Senior Preferred Units owned by BRSEC
Corp and, in exchange for such
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contribution, H&E Holdings shall issue to BRSEC Corp 9,200 H&E Holdings
Series B Preferred Units;
(d) Xxxxxxx shall contribute to H&E Holdings the right to
receive $3,800,000 of the ICM Series A-1 Senior Preferred Redemption Value
attributable to the ICM Series A-1 Senior Preferred Units owned by Xxxxxxx
and, in exchange for such contribution, H&E Holdings shall issue to Xxxxxxx
3,800 H&E Holdings Series B Preferred Units;
(e) SNCC shall contribute to H&E Holdings the right to receive
$800,000 of the ICM Series A-1 Senior Preferred Redemption Value
attributable to the ICM Series A-1 Senior Preferred Units owned by SNCC
and, in exchange for such contribution, H&E Holdings shall issue to SNCC
800 H&E Holdings Series B Preferred Units; and
(f) SNCC shall contribute to H&E Holdings the right to receive
$1,600,000 of the ICM Series A-2 Senior Preferred Redemption Value
attributable to the ICM Series A-2 Senior Preferred Units owned by SNCC
and, in exchange for such contribution, H&E Holdings shall issue to SNCC
1,600 H&E Holdings Series B Preferred Units (such H&E Holdings Series B
Preferred Units, the "TRANSITORY H&E HOLDINGS SERIES B PREFERRED UNITS").
(iii) ISSUANCE OF CERTAIN H&E HOLDINGS SERIES C PREFERRED UNITS.
Subject to the terms and conditions of this Agreement, at the Closing:
(a) BRSEC Corp shall contribute to H&E Holdings all right, title
and interest to the 38,505.753 ICM Series A-1 Senior Preferred Units owned
by BRSEC Corp and, in exchange for such contribution, H&E Holdings shall
issue to BRSEC Corp that number of H&E Holdings Series C Preferred Units
equal to the then aggregate ICM Series A-1 Senior Preferred Redemption
Value attributable to such ICM Series A-1 Senior Preferred Units owned by
BRSEC Corp (as reduced pursuant to the contributions of certain rights to
receive ICM Series A-1 Senior Preferred Redemption Value attributable to
such ICM Series A-1 Senior Preferred Units owned by BRSEC Corp pursuant to
Sections 2A(i) and 2B(ii)(c) above) DIVIDED BY $1,000;
(b) BRSEC Corp shall contribute to H&E Holdings all right, title
and interest to the 1,763.002 ICM Series A-3 Senior Preferred Units owned
by BRSEC Corp and, in exchange for such contribution, H&E Holdings shall
issue to BRSEC Corp that number of H&E Holdings Series C Preferred Units
equal to the then aggregate ICM Series A-3 Senior Preferred Redemption
Value attributable to such ICM Series A-3 Senior Preferred Units owned by
BRSEC Corp DIVIDED BY $1,000;
(c) Xxxxxxx shall contribute to H&E Holdings all right, title
and interest to the 12,280.752 ICM Series A-1 Senior Preferred Units owned
by Xxxxxxx and, in exchange for such contribution, H&E Holdings shall issue
to Xxxxxxx that number of H&E Holdings Series C Preferred Units equal to
the then aggregate ICM Series A-1 Senior Preferred Redemption Value
attributable to such ICM Series A-1 Senior Preferred
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Units owned by Xxxxxxx (as reduced pursuant to the contributions of certain
rights to receive ICM Series A-1 Senior Preferred Redemption Value
attributable to such ICM Series A-1 Senior Preferred Units owned by Xxxxxxx
pursuant to Section 2B(ii)(d) above) DIVIDED BY $1,000;
(d) SNCC shall contribute to H&E Holdings all right, title and
interest to the 2,392.137 ICM Series A-1 Senior Preferred Units owned by
SNCC and, in exchange for such contribution, H&E Holdings shall issue to
SNCC that number of H&E Holdings Series C Preferred Units equal to the then
aggregate ICM Series A-1 Senior Preferred Redemption Value attributable to
such ICM Series A-1 Senior Preferred Units owned by SNCC (as reduced
pursuant to the contributions of certain rights to receive ICM Series A-1
Senior Preferred Redemption Value attributable to such ICM Series A-1
Senior Preferred Units owned by SNCC pursuant to Section 2B(ii)(e) above)
DIVIDED BY $1,000; and
(e) SNCC shall contribute to H&E Holdings all right, title and
interest to the 5,148.056 ICM Series A-2 Senior Preferred Units owned by
SNCC and, in exchange for such contribution, H&E Holdings shall issue to
SNCC that number of H&E Holdings Series C Preferred Units equal to the then
aggregate ICM Series A-2 Senior Preferred Redemption Value attributable to
such ICM Series A-2 Senior Preferred Units owned by SNCC (as reduced
pursuant to the contributions of certain rights to receive ICM Series A-2
Senior Preferred Redemption Value attributable to such ICM Series A-2
Senior Preferred Units owned by SNCC pursuant to Section 2B(ii)(f) above)
DIVIDED BY $1,000 (such H&E Holdings Series C Preferred Units, the
"TRANSITORY H&E HOLDINGS SERIES C PREFERRED UNITS").
(iv) ISSUANCE OF CERTAIN H&E HOLDINGS SERIES C PREFERRED UNITS AND
CERTAIN H&E HOLDINGS SERIES D PREFERRED UNITS. Subject to the terms and
conditions of this Agreement, at the Closing:
(a) Xxxxxxx Investments shall contribute to H&E Holdings all
right, title and interest to the 10,328.611 ICM Series A-1 Senior Preferred
Units owned by Xxxxxxx Investments and, in exchange for such contribution,
H&E Holdings shall issue to Xxxxxxx Investments that number of H&E Holdings
Series D Preferred Units equal to the then aggregate ICM Series A-1 Senior
Preferred Redemption Value attributable to such ICM Series A-1 Senior
Preferred Units owned by Xxxxxxx Investments DIVIDED BY $1,000;
(b) Xxxxxxxx shall contribute to H&E Holdings all right, title
and interest to the 5,000 Gulf Wide Junior Preferred Units owned by
Xxxxxxxx and, in exchange for such contribution, H&E Holdings shall issue
to Xxxxxxxx (i) 3,500 H&E Holdings Series C Preferred Units and (ii) that
number of H&E Holdings Series D Preferred Units equal to (x) (I) the then
aggregate Junior Preferred Redemption Value (as such term is defined in the
Gulf Wide LLC Agreement) MINUS (II) $3,500,000 DIVIDED BY (y) $1,000; and
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(c) BRSEC-II shall contribute to H&E Holdings all right, title
and interest to the 36,286.902 Gulf Wide Senior Subordinated Preferred
Units owned by BRSEC-II and, in exchange for such contribution, H&E
Holdings shall issue to BRSEC-II (i) that number of H&E Holdings Series C
Preferred Units equal to (x) (I) the then aggregate Senior Subordinated
Preferred Redemption Value (as such term is defined in the Gulf Wide LLC
Agreement) MINUS (II) $3,500,000 DIVIDED BY (y) $1,000 and (ii) 3,500 H&E
Holdings Series D Preferred Units.
(v) ISSUANCE OF H&E HOLDINGS CLASS A AND CLASS B COMMON UNITS AND
CERTAIN H&E HOLDINGS SERIES D PREFERRED UNITS. Subject to the terms and
conditions of this Agreement, at the Closing:
(a) BRSEC-II shall contribute to H&E Holdings all right, title
and interest to the 115,152.8 Gulf Wide Class A Common Units owned by
BRSEC-II and, in exchange for such contribution, H&E Holdings shall issue
to BRSEC-II (x) 13,700 H&E Holdings Series D Preferred Units and (y) that
number of H&E Holdings Class A Common Units set forth next to BRSEC-II's
name on SCHEDULE 0 xxxxxxxx xxxxxx (xxx "X&X HOLDINGS COMMON UNITS
ALLOCATION SCHEDULE");
(b) Xxxxxxxx shall contribute to H&E Holdings all right, title
and interest to the 108,243.6 Gulf Wide Class B Common Units owned by
Xxxxxxxx and, in exchange for such contribution, H&E Holdings shall issue
to Xxxxxxxx (x) 12,878 H&E Holdings Series D Preferred Units and (y) that
number of H&E Holdings Class B Common Units set forth next to Xxxxxxxx'x
name on the H&E Holdings Common Units Allocation Schedule;
(c) Xxxxx shall contribute to H&E Holdings all right, title and
interest to the 6,909.2 Gulf Wide Class B Common Units owned by Xxxxx and,
in exchange for such contribution, H&E Holdings shall issue to Xxxxx (x)
822 H&E Holdings Series D Preferred Units and (y) that number of H&E
Holdings Class B Common Units set forth next to Xxxxx'x name on the H&E
Holdings Common Units Allocation Schedule;
(d) BRSEC Corp shall contribute to H&E Holdings all right, title
and interest to the ICM Class A Preferred Units, the ICM Class B Preferred
Units, the ICM Class C Preferred Units and the ICM Class A Common Units
owned by BRSEC Corp, as set forth on SCHEDULE 2 attached hereto (the "ICM
EQUITYHOLDERS SCHEDULE"), and, in exchange for such contribution, H&E
Holdings shall issue to BRSEC Corp that number of H&E Holdings Class A
Common Units set forth next to BRSEC Corp's name on the H&E Holdings Common
Units Allocation Schedule; and
(e) Each ICM Manager shall contribute to H&E Holdings all right,
title and interest to the ICM Class A Preferred Units, the ICM Class B
Preferred Units, the ICM Class C Preferred Units and the ICM Class A Common
Units owned by such ICM Manager, as set forth on the ICM Equityholders
Schedule, and, in exchange for such contribution, H&E Holdings shall issue
to such ICM Manager that number of H&E Holdings Class B Common Units set
forth next to such ICM Manager's name on the H&E Holdings Common Units
Allocation Schedule.
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2B. LIQUIDATION OF BRSEC CORP. As provided in the BRSEC Corp
Liquidation Agreement, immediately following the Contributions to H&E Holdings,
BRSEC Corp shall liquidate and distribute all of the H&E Holdings Units then
held by it to BRSEC LLC (such liquidation and distribution, the "LIQUIDATION OF
BRSEC CORP").
2C. PREPAYMENT OF THE XXXXXXX INVESTMENTS FEBRUARY 2001 $4,000,000
PROMISSORY NOTE AND THE XXXXXXXX FEBRUARY 2001 $2,000,000 PROMISSORY NOTE. At
the Closing, H&E Holdings shall cause ICM (or its successor) to prepay in full
all principal amount then outstanding pursuant to (i) the Xxxxxxx Investments
February 2001 $4,000,000 Promissory Note as well as all accrued interest thereon
and (ii) the Xxxxxxxx February 2001 $2,000,000 Promissory Note as well as all
accrued interest thereon.
2D. THE CLOSING. Subject to the conditions contained herein, the
closing (the "CLOSING") of the transactions contemplated by this Agreement shall
take place at 9:00 a.m., New York time (or such other time as may be agreed to
by BRSEC Corp, BRSEC-II, Xxxxxxxx and Xxxxxx Investments), on a date to be
specified by BRSEC Corp, BRSEC-II, Xxxxxxxx and Xxxxxx Investments, which date
shall be no later than the third business day after the satisfaction (or waiver)
of the conditions set forth in Section 3 (the "CLOSING DATE"), at the offices of
Xxxxxxxx & Xxxxx, Citigroup Center, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 or such other place as may be agreed to by BRSEC Corp, BRSEC-II, Xxxxxxxx
and Xxxxxx Investments.
Section 3. CONDITIONS TO THE CLOSING.
3A. CONDITIONS OF EACH GULF WIDE EQUITYHOLDER'S AND EACH ICM
EQUITYHOLDER'S OBLIGATIONS AT THE CLOSING. The obligation of each Gulf Wide
Equityholder and each ICM Equityholder to consummate the Contributions to H&E
Holdings at the Closing shall be subject to the fulfillment at or prior to the
Closing of each of the following conditions, any and all of which may be waived
in whole or in part by BRSEC Corp, BRSEC-II, Xxxxxxxx and Xxxxxx Investments:
(i) HIGH YIELD DEBT OFFERING. A subsidiary of H&E Holdings (or a
company which will be a subsidiary of H&E Holdings as of immediately after the
Closing) shall have consummated either (i) a public offering and sale of debt
securities of the Company pursuant to an effective registration statement under
the Securities Act resulting in net proceeds to such subsidiary of at least
$175,000,000 or (ii) an offering and sale of debt securities of such subsidiary
to United States buyers who fit the requirements of Rule 144A of the Securities
Act and/or overseas buyers under Regulation S of the Securities Act resulting in
net proceeds to such subsidiary of at least $175,000,000, but only if such
offering and sale requires that such subsidiary file and effect a registration
statement under the Securities Act for such debt securities within one year
after the consummation of such offering and sale.
(ii) SENIOR DEBT FACILITY. A subsidiary of H&E Holdings (or a company
which will be a subsidiary of H&E Holdings as of immediately after the Closing)
shall have entered into a senior debt facility on terms reasonably satisfactory
to H&E Holdings.
(iii) H&E HOLDINGS REGISTRATION RIGHTS AGREEMENT. The H&E Holdings
Registration Rights Agreement shall have been executed and delivered by H&E
Holdings.
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(iv) H&E HOLDINGS SECURITYHOLDERS AGREEMENT. The H&E Holdings
Securityholders Agreement shall have been executed and delivered by H&E
Holdings.
(v) RELEASE OF ICM DEBT LIENS. The ICM Debt Liens shall have been
released.
(vi) GOVERNMENTAL ORDER. No Governmental Entity shall have issued an
order, decree or ruling or taken any action temporarily or permanently
enjoining, restraining or otherwise prohibiting the transactions contemplated
hereby.
3B. CONDITIONS OF H&E HOLDINGS' OBLIGATIONS AT THE CLOSING. The
obligation of H&E Holdings to consummate the Contributions to H&E Holdings at
the Closing shall be subject to the fulfillment at or prior to the Closing of
each of the following conditions, any and all of which may be waived in whole or
in part by H&E Holdings:
(i) HIGH YIELD DEBT OFFERING. A subsidiary of H&E Holdings (or a
company which will be a subsidiary of H&E Holdings as of immediately after the
Closing) shall have consummated either (i) a public offering and sale of debt
securities of the Company pursuant to an effective registration statement under
the Securities Act resulting in net proceeds to such subsidiary of at least
$175,000,000 or (ii) an offering and sale of debt securities of such subsidiary
to United States buyers who fit the requirements of Rule 144A of the Securities
Act and/or overseas buyers under Regulation S of the Securities Act resulting in
net proceeds to such subsidiary of at least $175,000,000, but only if such
offering and sale requires that such subsidiary file and effect a registration
statement under the Securities Act for such debt securities within one year
after the consummation of such offering and sale.
(ii) SENIOR DEBT FACILITY. A subsidiary of H&E Holdings (or a company
which will be a subsidiary of H&E Holdings as of immediately after the Closing)
shall have entered into a senior debt facility on terms reasonably satisfactory
to H&E Holdings.
(iii) REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in Sections 4 and 5 hereof shall be true, correct and
complete as of as of the date hereof and the Closing Date.
(iv) DELIVERY OF GULF WIDE UNIT CERTIFICATES. Each Gulf Wide
Equityholder shall have delivered to H&E Holdings one or more unit certificates
(along with, if necessary, appropriately executed unit powers or other forms of
transfer) representing the Gulf Wide Equity Securities being contributed to H&E
Holdings by such Gulf Wide Equityholder hereunder.
(v) DELIVERY OF ICM UNIT CERTIFICATES. Each ICM Equityholder shall
have delivered to H&E Holdings one or more unit certificates (along with, if
necessary, appropriately executed unit powers or other forms of transfer)
representing the ICM Equity Securities being contributed to H&E Holdings by such
ICM Equityholder hereunder.
(vi) H&E HOLDINGS LLC AGREEMENT. The H&E Holdings LLC Agreement shall
have been executed and delivered by each H&E Holdings Equityholder.
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(vii) H&E HOLDINGS REGISTRATION RIGHTS AGREEMENT. The H&E Holdings
Registration Rights Agreement shall have been executed and delivered by each H&E
Holdings Equityholder.
(viii) H&E HOLDINGS SECURITYHOLDERS AGREEMENT. The H&E Holdings
Securityholders Agreement shall have been executed and delivered by each H&E
Holdings Equityholder.
(ix) CONSENTS AND APPROVALS. ICM, Gulf Wide and Head & Xxxxxxxx
Equipment Company shall have obtained all consents, authorizations and approvals
under all laws or from any person under any material contract of any of ICM,
Gulf Wide and/or Head & Xxxxxxxx Equipment Company, in each case, required to be
obtained by any of any of ICM, Gulf Wide and/or Head & Xxxxxxxx Equipment
Company in connection with the execution, delivery and performance of this
Agreement and the consummation of the transaction contemplated hereby, including
the mergers described in Section 6D hereof.
(x) XXXX XXXXXX EMPLOYMENT AGREEMENT. ICM (or its successor) and
Xxxx Xxxxxx shall have entered into an amendment to Xxxx Xxxxxx'x Employment
Agreement, which amendment shall be in a form and in substance, satisfactory to
H&E Holdings.
(xi) SHARP EMPLOYMENT AGREEMENT. ICM (or its successor) and Sharp
shall have entered into an amendment to Sharp's Employment Agreement, which
amendment shall be in a form and in substance, satisfactory to H&E Holdings.
(xii) GOVERNMENTAL ORDER. No Governmental Entity shall have issued an
order, decree or ruling or taken any action temporarily or permanently
enjoining, restraining or otherwise prohibiting the transactions contemplated
hereby.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE ICM EQUITYHOLDERS.
Each ICM Equityholder hereby represents and warrants to H&E Holdings that the
following statements contained in this Section 4 are true, correct and complete
as of the date hereof and will be true, correct and complete as of the Closing
Date:
4A. EXISTENCE AND AUTHORIZATION. Such ICM Equityholder who is a
natural person is competent and has all requisite capacity, power and authority
to execute and deliver this Agreement and the Transaction Documents to which
such ICM Equityholder will be a party and to consummate the transactions
contemplated hereby and thereby. Such ICM Equityholder who is a natural person
and who is required under applicable law to obtain the consent of his/her spouse
in order to execute this Agreement and perform his/her obligations hereunder and
under the Transaction Documents to which such ICM Equityholder will be a party
has obtained such consent. Such ICM Equityholder which is not a natural person
is duly organized and/or formed and validly existing and in good standing under
the laws of its jurisdiction of organization and/or formation, and has all
requisite powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted. The
execution, delivery and performance by such ICM Equityholder of this Agreement
and the Transaction Documents to which such ICM Equityholder will be a party
have been duly authorized by such ICM Equityholder. This Agreement and the
Transaction Documents to which such ICM
11
Equityholder is a party constitute, or, when executed, will constitute, valid
and binding obligations of such ICM Equityholder enforceable in accordance with
their terms, except as such enforceability may be limited by: (i) applicable
insolvency, bankruptcy, reorganization, moratorium or other similar laws
affecting creditors' rights generally, or (ii) applicable equitable principles
(whether considered in a proceeding at law or in equity).
4B. TITLE TO ICM EQUITY SECURITIES. Except, in the case of BRSEC
Corp, as contemplated by the Liquidation of BRSEC Corp, such ICM Equityholder
is, and, as of the Closing, such ICM Equityholder will be, the record and
beneficial owner of the ICM Equity Securities that such ICM Equityholder is to
contribute to H&E Holdings pursuant to this Agreement, free and clear of any and
all Liens whatsoever other than, as of the date hereof, the ICM Debt Liens.
There are no statutory or contractual pre-emptive rights, rights of first
refusal or options pertaining or applicable to the ICM Equity Securities owned
by such ICM Equityholder other than as set forth in the ICM Securityholders
Agreement.
4C. NO BREACH. The execution, delivery and performance by such ICM
Equityholder of this Agreement and each of the Transaction Documents to which he
or it will be a party will not result in any material breach of any terms or
provisions of, or constitute a material default under, any material contract,
agreement or instrument to which such ICM Equityholder is a party or by which
such ICM Equityholder is bound.
4D. DISCLOSURE OF INFORMATION. Such ICM Equityholder has received
and reviewed information about H&E Holdings, ICM, Gulf Wide and their respective
subsidiaries (including Head & Xxxxxxxx Equipment Company), including the
Confidential Offering Circular, dated June 3, 2002 regarding the proposed
issuance by H&E Equipment Services L.L.C. and H&E Finance Corp. of certain
Senior Secured Notes (the "NOTES OFFERING CIRCULAR"), and has had an opportunity
to ask questions and receive answers from H&E Holdings, ICM, Gulf Wide and Head
& Xxxxxxxx Equipment Company regarding the terms and conditions of the offering
of the H&E Holdings Units pursuant to this Agreement and the business,
properties, prospects and financial condition of H&E Holdings, ICM, Gulf Wide
and their respective subsidiaries (including Head & Xxxxxxxx Equipment Company)
and to conduct such due diligence review as he or it has deemed appropriate.
4E. INVESTMENT EXPERIENCE. Such ICM Equityholder acknowledges that
he or it is able to fend for himself or itself, can bear the economic risk of
his or its investment in H&E Holdings Units, and has such knowledge and
experience in financial or business matters that he or it is capable of
evaluating the merits and risks of owning an investment in H&E Holdings Units.
4F. ACCREDITED INVESTOR. Such ICM Equityholder is an "accredited
investor" as defined under Rule 501 promulgated under the Securities Act.
4G. INVESTMENT INTENT. Such ICM Equityholder is acquiring the
applicable H&E Holdings Units for his or its own account, not as nominee or
agent, with the present intention of holding such securities for purposes of
investment, and has no intention of selling such securities in a public
distribution in violation of the federal securities Laws or any applicable state
securities Laws; PROVIDED that, notwithstanding the foregoing, (i) BRSEC Corp
12
shall consummate (and shall be permitted to consummate) the Liquidation of BRSEC
Corp and (ii) SNCC and Xxxxxxx Investments shall consummate (and shall be
permitted to consummate) the transactions contemplated by Section 6E hereof.
4H. NO PUBLIC MARKET. Such ICM Equityholder understands that no
public market now exists for the H&E Holdings Units and that there is no
assurance that a public market will ever exist for the H&E Holdings Units. Such
ICM Equityholder also understands that Rule 144 promulgated under the Securities
Act is not presently available with respect to the sale of any of the H&E
Holdings Xxxxx.
0X. RISK FACTORS. Such ICM Equityholder has reviewed, understands
and accepts each of the "Risk Factors" contained in the Notes Offering Circular.
Section 5. REPRESENTATIONS AND WARRANTIES OF THE GULF WIDE
EQUITYHOLDERS. Each Gulf Wide Equityholder hereby represents and warrants to H&E
Holdings that the following statements contained in this Section 5 are true,
correct and complete as of the date hereof and will be true, correct and
complete as of the Closing Date:
5A. EXISTENCE AND AUTHORIZATION. Such Gulf Wide Equityholder who is
a natural person is competent and has all requisite capacity, power and
authority to execute and deliver this Agreement and the Transaction Documents to
which such Gulf Wide Equityholder will be a party and to consummate the
transactions contemplated hereby and thereby. Such Gulf Wide Equityholder who is
a natural person and who is required under applicable law to obtain the consent
of his/her spouse in order to execute this Agreement and perform his/her
obligations hereunder and under the Transaction Documents to which such Gulf
Wide Equityholder will be a party has obtained such consent. Such Gulf Wide
Equityholder which is not a natural person is duly organized and/or formed and
validly existing and in good standing under the laws of its jurisdiction of
organization and/or formation, and has all requisite powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted. The execution, delivery and performance by
such Gulf Wide Equityholder of this Agreement and the Transaction Documents to
which such Gulf Wide Equityholder will be a party have been duly authorized by
such Gulf Wide Equityholder. This Agreement and the Transaction Documents to
which such Gulf Wide Equityholder is a party constitute, or, when executed, will
constitute, valid and binding obligations of such Gulf Wide Equityholder
enforceable in accordance with their terms, except as such enforceability may be
limited by: (i) applicable insolvency, bankruptcy, reorganization, moratorium or
other similar laws affecting creditors' rights generally, or (ii) applicable
equitable principles (whether considered in a proceeding at law or in equity).
5B. TITLE TO GULF WIDE EQUITY SECURITIES. Such Gulf Wide
Equityholder is, and, as of the Closing, such Gulf Wide Equityholder will be,
the record and beneficial owner of the Gulf Wide Equity Securities that such
Gulf Wide Equityholder is to contribute to H&E Holdings pursuant to this
Agreement, free and clear of any and all Liens whatsoever. There are no
statutory or contractual pre-emptive rights, rights of first refusal or options
pertaining or applicable to the Gulf Wide Equity Securities owned by such Gulf
Wide Equityholder other than as set forth in the Gulf Wide Securityholders
Agreement.
13
5C. NO BREACH. The execution, delivery and performance by such Gulf
Wide Equityholder of this Agreement and each of the Transaction Documents to
which he or it will be a party will not result in any material breach of any
terms or provisions of, or constitute a material default under, any material
contract, agreement or instrument to which such Gulf Wide Equityholder is a
party or by which such Gulf Wide Equityholder is bound.
5D. DISCLOSURE OF INFORMATION. Such Gulf Wide Equityholder has
received and reviewed information about H&E Holdings, ICM, Gulf Wide and their
respective subsidiaries (including Head & Xxxxxxxx Equipment Company), including
the Notes Offering Circular, and has had an opportunity to ask questions and
receive answers from H&E Holdings, ICM, Gulf Wide and Head & Xxxxxxxx Equipment
Company regarding the terms and conditions of the offering of the H&E Holdings
Units pursuant to this Agreement and the business, properties, prospects and
financial condition of H&E Holdings, ICM, Gulf Wide and their respective
subsidiaries (including Head & Xxxxxxxx Equipment Company) and to conduct such
due diligence review as he or it has deemed appropriate.
5E. INVESTMENT EXPERIENCE. Such Gulf Wide Equityholder acknowledges
that he or it is able to fend for himself or itself, can bear the economic risk
of his or its investment in H&E Holdings Units, and has such knowledge and
experience in financial or business matters that he or it is capable of
evaluating the merits and risks of owning an investment in X&X Xxxxxxxx Xxxxx.
0X. ACCREDITED INVESTOR. Such Gulf Wide Equityholder is an
"accredited investor" as defined under Rule 501 promulgated under the Securities
Act.
5G. INVESTMENT INTENT. Such Gulf Wide Equityholder is acquiring the
applicable H&E Holdings Units for his or its own account, not as nominee or
agent, with the present intention of holding such securities for purposes of
investment, and has no intention of selling such securities in a public
distribution in violation of the federal securities Laws or any applicable state
securities Laws.
5H. NO PUBLIC MARKET. Such Gulf Wide Equityholder understands that
no public market now exists for the H&E Holdings Units and that there is no
assurance that a public market will ever exist for the H&E Holdings Units. Such
Gulf Wide Equityholder also understands that Rule 144 promulgated under the
Securities Act is not presently available with respect to the sale of any of the
H&E Holdings Xxxxx.
0X. RISK FACTORS. Such Gulf Wide Equityholder has reviewed,
understands and accepts each of the "Risk Factors" contained in the Notes
Offering Circular.
Section 6. COVENANTS.
6A. TERMINATION OF GULF WIDE REGISTRATION RIGHTS AGREEMENT AND GULF
WIDE SECURITYHOLDERS AGREEMENT. Each Gulf Wide Equityholder and Gulf Wide hereby
agree that, effective as of immediately prior to the Closing, the Gulf Wide
Registration Rights Agreement and the Gulf Wide Securityholders Agreement are
hereby terminated and that no party thereto shall have any rights or obligations
thereunder; PROVIDED, that the provisions of this Section 6A shall have no legal
force or effect unless the Closing occurs.
14
6B. TERMINATION OF ICM REGISTRATION RIGHTS AGREEMENT AND ICM
SECURITYHOLDERS AGREEMENT. Each ICM Equityholder and ICM hereby agree that,
effective as of immediately prior to the Closing, the ICM Registration Rights
Agreement and the ICM Securityholders Agreement are hereby terminated and that
no party thereto shall have any rights or obligations thereunder; PROVIDED, that
the provisions of this Section 6B shall have no legal force or effect unless the
Closing occurs.
6C. CONTRIBUTION BY H&E HOLDINGS OF THE ICM EQUITY SECURITIES TO
GULF WIDE. H&E Holdings hereby agrees that, effective as of immediately after
the Contributions to H&E Holdings, H&E Holdings shall be deemed to have
contributed all of the ICM Equity Securities to Gulf Wide, and, upon Gulf Wide's
receipt of such contribution, ICM shall be a wholly-owned subsidiary of Gulf
Wide; PROVIDED, that the provisions of this Section 6C shall have no legal force
or effect unless the Closing occurs.
6D. MERGER OF ICM AND HEAD & XXXXXXXX EQUIPMENT COMPANY WITH AND
INTO GULF WIDE. Gulf Wide hereby agrees that, as of immediately after the
contribution described in Section 6C above, Gulf Wide will cause (x) ICM to be
merged with and into Gulf Wide and (y) Head & Xxxxxxxx Equipment Company to be
merged with and into Gulf Wide, in each instance with Gulf Wide as the surviving
entity with the name "H&E Equipment Services L.L.C."; PROVIDED, that the
provisions of this Section 6D shall have no legal force or effect unless the
Closing occurs.
6E. SALE OF THE TRANSITORY H&E HOLDINGS SERIES C PREFERRED UNITS AND
THE TRANSITORY H&E HOLDINGS SERIES D PREFERRED UNITS BY SNCC TO XXXXXXX
INVESTMENTS. Effective as of immediately after the Contribution to H&E Holdings,
SNCC hereby sells and assigns to Xxxxxxx Investments the Transitory H&E Holdings
Series C Preferred Units and the Transitory H&E Holdings Series D Preferred
Units, in each case, for a cash purchase price of $1,000 per each such Preferred
Unit. Xxxxxxx Investments shall pay to SNCC the aggregate cash purchase price
for such sale and assignment by delivery of immediately available funds to an
account or accounts as specified by SNCC. The parties hereto hereby acknowledge
and agree that the sale and assignment of H&E Holdings Units pursuant to this
Section 6E shall be deemed to occur immediately prior to the effectiveness of
the H&E Holdings Securityholders Agreement. The provisions of this Section 6E
shall have no legal force or effect unless the Closing occurs.
6F. TERMINATION OF XXXXXXXX SECURITY AGREEMENT. Xxxxxxxx hereby
agrees that, effective as of immediately prior to the Closing, Xxxxxxxx and Head
& Xxxxxxxx Equipment Company shall terminate the Security Agreement, dated as of
August 10, 2001, between Xxxxxxxx and Head & Xxxxxxxx Equipment Company as well
as any mortgages on any of Head & Xxxxxxxx Equipment Company's properties in
connection therewith; PROVIDED, that the provisions of this Section 6F shall
have no legal force or effect unless the Closing occurs.
6G. PUBLIC ANNOUNCEMENTS. Neither any party hereto nor any of their
respective agents or representatives will make any press release or public
announcement concerning this Agreement or the transactions contemplated hereby,
except as required by law or with the written consent of BRSEC Corp (or its
successor), BRSEC-II, Xxxxxxxx and Xxxxxx Investments.
15
6H. CLOSING DELIVERIES. Each H&E Equityholder hereby agrees that at
the Closing such H&E Equityholder shall execute and deliver each of the H&E
Holdings LLC Agreement, the H&E Holdings Registration Rights Agreement and the
H&E Holdings Securityholders Agreement. At the Closing, each Gulf Wide
Equityholder hereby agrees to deliver to H&E Holdings the unit certificate(s)
(along with, if necessary, appropriately executed unit powers or other forms of
transfer) representing the Gulf Wide Equity Securities being contributed to H&E
Holdings by such Gulf Wide Equityholder hereunder. At the Closing, each ICM
Equityholder hereby agrees to deliver to H&E Holdings the unit certificate(s)
(along with, if necessary, appropriately executed unit powers or other forms of
transfer) representing the ICM Equity Securities being contributed to H&E
Holdings by such ICM Equityholder hereunder. Each ICM Manager hereby irrevocable
appoints Xxxx Xxxxxx has such ICM Manager's attorney-in-fact and agent with full
power of substitution and to act on such ICM Manager's behalf (including the
power to execute and deliver, in the name of and on behalf of such ICM Manager,
appropriate documents and agreements, including the H&E Holdings LLC Agreement,
the H&E Holdings Registration Rights Agreement and the H&E Holdings
Securityholders Agreement, which documents and agreements shall be in such form
as Xxxx Xxxxxx deems appropriate) in complying with the other provisions of this
Section 6H and to otherwise consummate the transactions contemplated by this
Agreement.
6I. REPORTING. Each of the parties hereto agrees to treat (i) the
Contributions to H&E Holdings as described in Section 351 of the IRC and (ii)
the contributions to H&E Holdings hereunder by BRSEC Corp followed by the
Liquidation of BRSEC Corp as a reorganization within the meaning of Section
368(a)(1)(C) of the IRC and to timely file all reports required under Treasury
Regulations promulgated under such IRC Sections in a manner consistent with this
Agreement.
Section 7. TERMINATION
7A. TERMINATION. This Agreement may be terminated at any time prior
to the Closing:
(a) by mutual written consent of BRSEC Corp, BRSEC-II, Xxxxxxxx
and Xxxxxx Investments;
(b) by any of BRSEC Corp, BRSEC-II, Xxxxxxxx or Xxxxxx
Investments if the Closing has not occurred on or before the date ninety
(90) days after the date hereof; and
(c) by any of BRSEC Corp, BRSEC-II, Xxxxxxxx or Xxxxxx
Investments if any Governmental Entity shall have issued an order, decree
or ruling or taken any action permanently enjoining, restraining or
otherwise prohibiting the transactions contemplated hereby and such order,
decree or ruling or other action shall have become final and nonappealable.
7B. EFFECT OF TERMINATION. In the event of a termination of this
Agreement pursuant to Section 7A, this Agreement shall forthwith become void,
and there shall be no
16
liability or obligation on the part of any party hereto, except that,
notwithstanding the foregoing, the provisions of this Section 7B and Section 6G
shall survive any such termination.
Section 8. MISCELLANEOUS.
8A. FURTHER ASSURANCES. At any time and from time to time after the
Closing, at H&E Holdings' request, any Gulf Wide Equityholder or any ICM
Equityholder shall execute and deliver such further documents, and perform such
further acts, as may be reasonably necessary in order to effectively transfer
and convey any of the Gulf Wide Equity Securities and/or the ICM Equity
Securities to H&E Holdings, on the terms herein contained, and to otherwise
comply with the terms of this Agreement and consummate the transactions
contemplated hereby.
8B. SUCCESSORS AND ASSIGNS. Neither any Gulf Wide Equityholder nor
any ICM Equityholder shall assign any rights under this Agreement without the
prior written consent of H&E Holdings (and any attempted assignment without such
consent shall be null and void). This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors, heirs and
permitted assigns.
8C. SEVERABILITY. Whenever 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 is held to be prohibited
by or invalid under applicable Law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
8D. AMENDMENTS. This Agreement may be amended only upon the written
consent of BRSEC Corp (or its successor), BRSEC-II, Xxxxxxxx and Xxxxxx
Investments.
8E. COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same agreement.
8F. DESCRIPTIVE HEADINGS; INTERPRETATION. Section headings used in
this Agreement are for convenience only and are not to affect the construction
of, or to be taken into consideration in interpreting, such agreement. The use
of the word "including" or any variation or derivative thereof in this Agreement
is by way of example rather than by limitation.
8G. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the state of Delaware, without giving effect to
any rules, principles or provisions of choice of law or conflict of laws.
8H. WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY
WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY
LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF
THIS AGREEMENT OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR
ENFORCEMENT THEREOF.
17
8I. NO STRICT CONSTRUCTION. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
8J. ENTIRE AGREEMENT. This Agreement, the Transaction Documents and
the other documents referred to herein contain the entire agreement between the
parties hereto and supersede any prior understandings, agreements or
representations by or between the parties hereto, written or oral, which may
have related to the subject matter hereof in any way.
8K. TIME OF THE ESSENCE; COMPUTATION OF TIME. Time is of the essence
for each and every provision of this Agreement. Whenever the last day for the
exercise of any privilege or the discharge of any duty hereunder shall fall upon
a Saturday, Sunday, or any date on which commercial banks in the State of
Delaware are authorized to be closed, the party having such privilege or duty
may exercise such privilege or discharge such duty on the next succeeding day
which is a regular business day.
* * * * *
18
IN WITNESS WHEREOF, the parties have executed this Contribution
Agreement and Plan of Reorganization as of the date first written above.
H&E HOLDINGS L.L.C.
By: /s/ RICE XXXXXXX
--------------------------------------------
Name: Rice Xxxxxxx
Title: Authorized Person
BRSEC CO-INVESTMENT II, LLC
By: /s/ RICE XXXXXXX
--------------------------------------------
Name: Rice Xxxxxxx
Title: Secretary
/s/ XXXX X. XXXXXXXX
-----------------------------------------------
XXXX X. XXXXXXXX
/s/ XXXXXXX XXXXXXXX
-----------------------------------------------
XXXXXXX XXXXXXXX XXXXX, by Xxxx X.
Xxxxxxxx, through Power of Attorney
dated May 15, 1999
BRS EQUIPMENT COMPANY, INC.
By: /s/ RICE XXXXXXX
--------------------------------------------
Name: Rice Xxxxxxx
Title: Secretary
XXXXXXX INVESTMENTS, INC.
By: /s/ XXX X. XXXXXXX
--------------------------------------------
Name: Xxx X. Xxxxxxx
Title: President
[Continuation of Signature Page to this Contribution Agreement and Plan of
Reorganization]
/s/ XXX XXXXXXX
-----------------------------------------------
XXX XXXXXXX
SOUTHERN NEVADA CAPITAL CORPORATION
By: /s/ XXXX XXXXXXXX
--------------------------------------------
Name: Xxxx Xxxxxxxx
Title: President
XXXXXX FAMILY INVESTMENTS, L.L.C.
By: /s/ XXXX XXXXXX
--------------------------------------------
Name: Xxxx Xxxxxx
Title: Manager
/s/ XXXXXXX XXXXX, XX.
-----------------------------------------------
XXXXXXX XXXXX, XX.
/s/ XXXXXXXXX XXXXXX
-----------------------------------------------
XXXXXXXXX XXXXXX
THE XXXXXX FAMILY TRUST
By: /s/ XXXXX X. XXXXXX
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Trustee
THE XXXXXXX FAMILY REVOCABLE TRUST
By: /s/ XXXXXX X. XXXXXXX
--------------------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Trustee
[Continuation of Signature Page to this Contribution Agreement and Plan of
Reorganization]
C/J LAND & LIVESTOCK L.P.
By: [ILLEGIBLE]
--------------------------------------------
Name:
Title:
XXXX AND XXXXX XXXXXXXX LIMITED PARTNERSHIP
By: /s/ XXXX X. XXXXXXXX
--------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Partner
XXXXXX X. XXXXXXXX LIMITED PARTNERSHIP
By: /s/ XXXXXX X. XXXXXXXX
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Member
H&E EQUIPMENT SERVICES L.L.C.
By: /s/ XXXX X. XXXXXXXX
--------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
ICM EQUIPMENT COMPANY L.L.C.
By: /s/ XXXX XXXXXX
--------------------------------------------
Name: Xxxx Xxxxxx
Title: President and Chief Executive
Officer
SCHEDULE 1
ALLOCATION OF H&E HOLDINGS COMMON UNITS
H&E Holdings H&E Holdings
Class A Common Class B Common
H&E Holdings Equityholders Units Units
--------------------------------------------------- ------------------- -------------------
BRS Equipment Company, Inc.* 785,000 --
BRSEC Co-Investment II, LLC 1,245,000 --
Xxxx X. Xxxxxxxx -- 1,170,300.0000
Xxxxxxx Xxxxxxxx Xxxxx -- 74,700.0000
Xxxxxxx Investments, Inc. -- 261,560.7810
Xxx Xxxxxxx -- 2,174.9643
Southern Nevada Capital Corporation -- 164,325.5681
Xxxxxx Family Investments, L.L.C. -- 85,813.7130
Xxxxxxx Xxxxx, Xx. -- 44,561.5525
Xxxxxxxxx Xxxxxx -- 28,955.9663
The Xxxxxx Family Trust -- 24,235.9744
The XxXxxxx Family Revocable Trust -- 16,474.0928
C/J Land & Livestock L.P. -- 32,299.1292
Xxxx and Xxxxx Xxxxxxxx Limited Partnership -- 32,299.1292
Xxxxxx X. Xxxxxxxx Limited Partnership -- 32,299.1292
------------------- -------------------
Totals 2,030,000 1,970,000,0000
=================== ===================
*To be immediately transferred to BRSEC Co-Investment, LLC pursuant to the
Liquidation of BRSEC Corp.
SCHEDULE 2
OWNERSHIP OF THE ICM CLASS A PREFERRED UNITS,
ICM CLASS B PREFERRED UNITS, ICM CLASS C PREFERRED UNITS
AND ICM CLASS A COMMON UNITS
ICM Class A ICM Class B ICM Class C ICM Class A
Name of ICM Equityholder Preferred Units Preferred Units Preferred Units Common Units
--------------------------------------------- ----------------- ----------------- ----------------- --------------
BRS Equipment Company, Inc. 21,957.146 17,746.308 8,875.059 3,204,174
Xxxxxxx Investments, Inc. 6,635.644 7,161.178 3,584.636 724,623
Xxx Xxxxxxx -- -- -- 207,161
Southern Nevada Capital Corporation 4,273.761 4,444.808 2,225.586 528,134
Xxxxxx Family Investments, L.L.C. 2,259.473 2,369.420 1,187.644 355,784
Xxxxxxx Xxxxx, Xx. 1,153.993 1,213.738 608.370 244,496
Xxxxxxxxx Xxxxxx 754.193 784.378 392.750 89,138
The Xxxxxx Family Trust 615.565 642.922 321.910 122,730
The XxXxxxx Family Revocable Trust 410.465 430.123 215.356 107,826
C/J Land & Livestock L.P. 841.269 874.939 438.096 99,429
Xxxx and Xxxxx Xxxxxxxx Limited Partnership 841.269 874.939 438.096 99,429
Xxxxxx X. Xxxxxxxx Limited Partnership 841.269 874.939 438.096 99,429
----------------- ----------------- ----------------- --------------
Totals 40,584.047 37,417.692 18,725.599 5,882,353
================= ================= ================= ==============
EXHIBIT A
FORM OF H&E HOLDINGS LLC AGREEMENT
EXHIBIT B
FORM OF H&E HOLDINGS REGISTRATION RIGHTS AGREEMENT
EXHIBIT C
FORM OF H&E HOLDINGS SECURITYHOLDERS AGREEMENT
