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EXHIBIT 10.4
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is dated as of June 17, 2002
by and among H&E Holdings L.L.C., a Delaware limited liability company (the
"COMPANY"); BRSEC Co-Investment, LLC ("BRSEC"); BRSEC Co-Investment II, LLC
("BRSEC-II"); John M. Engquist ("ENGQUIST"); Kristan Engquist Dunne ("DUNNE");
Wheeler Investments, Inc. ("WHEELER INVESTMENTS"); Don Wheeler ("WHEELER");
Southern Nevada Capital Corporation ("SNCC"); Bagley Family Investments, L.L.C.
("BAGLEY INVESTMENTS"); Kenneth Sharp, Jr. ("SHARP"); Siegfried Wallin
("Wallin"); The Conner Family Trust ("CONNER TRUST"); The McClain Family
Revocable Trust ("MCCLAIN TRUST"); C/J Land & Livestock L.P. ("GERALD WILLIAMS
INVESTMENTS"); John and Ellen Williams Limited Partnership ("JOHN WILLIAMS
INVESTMENTS"); and Robert G. Williams Limited Partnership ("ROBERT WILLIAMS
INVESTMENTS").
As of the date hereof, (i) BRSEC and BRSEC-II each own a number
of the Company's Class A Common Units, and (ii) Engquist, Dunne, Wheeler
Investments and Wheeler, SNCC, Bagley Investments, Sharp, Wallin, Conner Trust,
McClain Trust, Gerald Williams Investments, John Williams Investments and Robert
Williams Investments each own a number of the Company's Class B Common Units.
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. DEFINITIONS. As used herein, the following terms shall have
the following meanings.
"AFFILIATE" means, when used with reference to a specified
Person, any Person that directly or indirectly controls or is controlled by or
is under common control with the specified Person. As used in this definition,
"control" (including, with its correlative meanings, "controlled by" and "under
common control with") shall mean possession, directly or indirectly, of power to
direct or cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests, by contract
or otherwise). With respect to any Person who is an individual, "Affiliates"
shall also include, without limitation, any member of such individual's Family
Group.
"BRS REGISTRABLE SECURITIES" means (i) all Common Units acquired
by, or issued or issuable to, BRSEC, BRSEC-II or any of their Affiliates on or
after the date hereof and (ii) all equity securities issued or issuable directly
or indirectly with respect to any Common Units described in clause (i) above by
way of a unit or stock dividend or unit or stock split or in connection with a
combination of units or shares, recapitalization, merger, consolidation or other
reorganization, including pursuant to Section 10.17 of the LLC Agreement. As to
any particular BRS Registrable Securities, such securities shall cease to be BRS
Registrable Securities when they have been distributed to the public pursuant to
an offering registered under the Securities Act or sold to the public in
compliance with Rule 144.
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"CLASS A COMMON UNITS" means the Company's Class A Common Units
(as such term is defined in the LLC Agreement).
"CLASS B COMMON UNITS" means the Company's Class B Common Units
(as such term is defined in the LLC Agreement).
"COMMON UNITS" means collectively, the Class A Common Units,
Class B Common Units and any other equity of the Company (or its successors)
hereafter authorized which is not limited to a fixed sum or percentage of par
value or stated value in respect to the rights of the holders thereof to
participate in dividends or other distributions or in the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of the
issuer of such securities, including any common equity securities of any
successor entity of the Company issued pursuant to a transaction of the type
described in Section 10.17 of the LLC Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"FAMILY GROUP" means, with respect to any Person who is an
individual, (i) such Person's spouse, former spouse and descendants (whether
natural or adopted), parents and their descendants and any spouse of the
foregoing persons (collectively, "RELATIVES") or (ii) the trustee, fiduciary or
personal representative of such Person and any trust solely for the benefit of
such Person and/or such Person's relatives.
"LLC AGREEMENT" means the Limited Liability Company Agreement of
the Company, dated as of the date hereof, as amended from time to time.
"OTHER REGISTRABLE SECURITIES" means (i) all fully vested Common
Units acquired by, or issued or issuable to, Engquist, Dunne, Wheeler
Investments, Wheeler, SNCC, Bagley Investments, Sharp, Wallin, Conner Trust,
McClain Trust, Gerald Williams Investments, John Williams Investments and Robert
Williams Investments on or after the date hereof and (ii) all fully vested
equity securities issued or issuable directly or indirectly with respect to any
Common Units described in clause (i) above by way of a unit or stock dividend or
unit or stock split or in connection with a combination of units or shares,
recapitalization, merger, consolidation or other reorganization, including
pursuant to Section 10.17 of the LLC Agreement. As to any particular Other
Registrable Securities, such securities shall cease to be Other Registrable
Securities when they have been distributed to the public pursuant to an offering
registered under the Securities Act or sold to the public in compliance with
Rule 144.
"PERSON" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization, a bank, a trust company, a land
trust, a business trust, a governmental entity or any department, agency or
political subdivision thereof or any other entity or organization, whether or
not it is a legal entity.
"PUBLIC OFFERING" means an underwritten public offering and sale
of Common Units pursuant to an effective registration statement under the
Securities Act; provided that a Public Offering shall not include an offering
made in connection with a business acquisition or
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combination pursuant to a registration statement on Form S-4 or any similar
form, or an employee benefit plan pursuant to a registration statement on Form
S-8 or any similar form.
"REGISTRABLE SECURITIES" means, collectively, the BRS Registrable
Securities and the Other Registrable Securities.
"REGISTRATION EXPENSES" means all expenses incident to the
Company's performance of or compliance with this Agreement, including without
limitation all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing and distributing expenses, messenger
and delivery expenses, fees and expenses of custodians, internal expenses
(including all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance and the expenses and fees for
listing the securities to be registered on each securities exchange on which
similar securities issued by the Company are then listed or on the NASD
automated quotation system, and fees and disbursements of counsel for the
Company and the underwriters and all independent certified public accountants,
underwriters (excluding discounts and commissions) and other Persons retained by
the Company.
"RULE 144" means Rule 144 under the Securities Act (or any
similar rule then in force).
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SUBSIDIARY" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation or a limited liability company with voting
securities, a majority of the total voting power of shares of stock (or units)
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of such Person or a combination thereof, or (ii) if a limited
liability company without voting securities, partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of such Person or entity or a combination
thereof. For purposes of this Agreement, a Person or Persons shall be deemed to
have a majority ownership interest in a limited liability company, partnership,
association or other business entity if such Person or Persons shall be
allocated a majority of limited liability company, partnership, association or
other business entity gains or losses or shall be or control any managing
director, managing member, or general partner of such limited liability company,
partnership, association or other business entity.
2. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION.
(i) At any time after the date hereof, the holder(s) of a
majority of the BRS Registrable Securities may request registration under
the Securities Act of all or any
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portion of their Registrable Securities on Form S-1 or any similar
long-form registration (a "LONG-FORM REGISTRATION"), or on Form S-2 or S-3
or any similar short-form registration (a "SHORT-FORM REGISTRATION") if
such a short form is available.
(ii) All registrations requested pursuant to this Section 2(a)
are referred to herein as "DEMAND REGISTRATIONS". Each request for a Demand
Registration (a "DEMAND REQUEST") shall specify the approximate number of
Registrable Securities requested to be registered, the anticipated method
or methods of distribution and the anticipated per share price range for
such offering. Within ten days after receipt of any such Demand Request,
the Company will give written notice of such requested registration (which
shall specify the intended method of disposition of such Registrable
Securities) to all other holders of Registrable Securities (a "COMPANY
NOTICE") and the Company will include (subject to the provisions of this
Agreement) in such registration, all Registrable Securities with respect to
which the Company has received written requests for inclusion therein
within 20 days after the delivery of such Company Notice; provided that any
such other holder may withdraw its request for inclusion at any time prior
to executing the underwriting agreement or, if none, prior to the
applicable registration statement becoming effective.
(b) LONG-FORM REGISTRATIONS. The holders of BRS Registrable
Securities will be entitled to unlimited Long-Form Registrations. The Company
will pay all Registration Expenses in connection with any registration initiated
as a Long-Form Registration whether or not it has become effective.
(c) SHORT-FORM REGISTRATIONS. The holders of BRS Registrable
Securities will be entitled to unlimited Short-Form Registrations. Demand
Registrations by holders of BRS Registrable Securities will be Short-Form
Registrations whenever the Company is permitted to use any applicable short
form. After the Company has become subject to the reporting requirements of the
Exchange Act, the Company will use its best efforts to make Short-Form
Registrations on Form S-3 available for the sale of BRS Registrable Securities.
The Company will pay all Registration Expenses in connection with any
registration initiated as a Short-Form Registration by the holders of BRS
Registrable Securities whether or not it has become effective.
(d) PRIORITY ON DEMAND REGISTRATIONS.
(i) The Company will not include in any Demand Registration any
securities which are not Registrable Securities unless holder(s) of a
majority of the Registrable Securities initiating such Demand Registration
pursuant to Section 2(a) otherwise consent.
(ii) If a Demand Registration is an underwritten offering and the
managing underwriters advise the Company in writing that in their opinion
the number of Registrable Securities and, if permitted hereunder, other
securities, requested to be included in such offering exceeds the number of
Registrable Securities and other securities, if any, which can be sold in
an orderly manner in such offering within a price range acceptable to
holder(s) of a majority of the Registrable Securities initiating such
Demand Registration pursuant to Section 2(a) and without adversely
affecting the
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marketability of the offering, then the Company will include in such Demand
Registration (A) first, the number of Registrable Securities requested to
be included in such Demand Registration (by holders initiating such Demand
Registration as well as other holders who are permitted under this
Agreement to request the inclusion of Registrable Securities in such Demand
Registration), pro rata from among the holders of such Registrable
Securities according to the number of Registrable Securities requested by
them to be so included, and (B) second, any other securities of the Company
requested to be included in such registration, in such manner as the
Company may determine.
(e) RESTRICTIONS ON DEMAND REGISTRATIONS.
(i) The Company will not be obligated to file any registration
statement with respect to any Long-Form Registration within 180 days after
the effective date of a previous Long-Form Registration or a previous
registration in which the holders of Registrable Securities were given
piggyback rights pursuant to Section 3 and in which there were included not
less than 80% of the number of Registrable Securities requested to be
included.
(ii) The Company may postpone for up to 90 days the filing or the
effectiveness of a registration statement for a Demand Registration if the
Company determines that such Demand Registration would reasonably be
expected to have a material adverse effect on any proposal or plan by the
Company or any of its Subsidiaries to engage in any acquisition of assets
(other than in the ordinary course of business) or any merger,
consolidation, tender offer, reorganization or similar transaction;
provided that in such event the holders of Registrable Securities
initiating such Demand Registration pursuant to Section 2(a) will be
entitled to withdraw such request and, if such request is withdrawn, such
Demand Registration will not count as one of the permitted Demand
Registrations hereunder and the Company will pay all Registration Expenses
in connection with such requested registration. The Company may use the
provisions of this clause (ii) to delay a Demand Registration initiated by
holders of BRS Registrable Securities only once during any twelve-month
period.
(f) SELECTION OF UNDERWRITERS. In the case of any Demand
Registration, the holders of a majority of the BRS Registrable Securities to be
included in such Demand Registration will have the right to select the
investment banker(s) and manager(s) to administer the offering (which investment
banker(s) and manager(s) will be nationally recognized).
(g) OTHER REGISTRATION RIGHTS. Except as provided in this
Agreement, after the date hereof, the Company will not grant to any Persons the
right to request the Company to register any Common Units, or any securities
convertible or exchangeable into or exercisable for Common Units, without the
prior written consent of the holders of a majority of the BRS Registrable
Securities.
3. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to
register any of its Common Units under the Securities Act for its own account or
for the account of any holder
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of Common Units (other than pursuant to a Demand Registration, other than
pursuant to a registration statement on Form S-8 or S-4 or any similar or
successor form, other than in connection with a registration the primary purpose
of which is to register debt securities (i.e., in connection with a so-called
"EQUITY KICKER"), and, except, unless the Company has received the prior written
consent of holders of a majority of the BRS Registrable Securities, in
connection with an initial Public Offering) (a "PIGGYBACK REGISTRATION"), the
Company will give prompt written notice to all holders of Registrable Securities
of its intention to effect such a registration and of such holders' rights under
this Section 3(a). Upon the written request of any holder of Registrable
Securities (which request shall specify the Registrable Securities intended to
be disposed of by such holder and the intended method of disposition thereof),
the Company shall include in such registration (subject to the provisions of
this Agreement) all Registrable Securities requested to be registered pursuant
to this Section 3(a), subject to Section 3(b) below, with respect to which the
Company has received written requests for inclusion therein within 20 days after
the receipt of the Company's notice; provided that any such other holder may
withdraw its request for inclusion at any time prior to executing the
underwriting agreement or, if none, prior to the applicable registration
statement becoming effective.
(b) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is in part an underwritten primary registration on behalf of the
Company and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the Company and without adversely
affecting the marketability of the offering, then the Company will include in
such registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Securities requested to be included in such
registration, pro rata from among the holders of such Registrable Securities
according to the number of Registrable Securities requested by them to be so
included, and (iii) third, any other securities requested to be included in such
registration, in such manner as the Company may determine.
(c) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in an orderly manner
in such offering within a price range acceptable to the holders initially
requesting such registration and without adversely affecting the marketability
of the offering, then the Company will include in such registration (i) first,
(A) the securities requested to be included therein by the holders requesting
such registration and (B) the Registrable Securities requested to be included in
such registration, pro rata from among such holders and the holders of such
Registrable Securities according to the number of Registrable Securities
requested by them to be so included, and (ii) second, any other securities
requested to be included in such registration, in such manner as the Company may
determine.
(d) OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
Section 2 or pursuant to this Section 3, and if such previous registration has
not been withdrawn or abandoned, then all the parties hereto agree that the
Company shall not be required to effect any other registration of any of its
equity or similar securities or securities convertible or exchangeable into or
exercisable for its
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equity or similar securities under the Securities Act (except on Forms S-4 or
S-8 or any successor or similar form or in connection with a Demand
Registration), whether on its own behalf or at the request of any holder or
holders of such securities, until a period of at least 180 days has elapsed from
the effective date of such previous registration.
(e) REGISTRATION EXPENSES. The Company will pay all Registration
Expenses in connection with any Piggyback Registration whether or not such
Piggyback Registration has become effective.
4. HOLDBACK AGREEMENTS.
(a) Each holder of Registrable Securities hereby agrees (i) not
to effect any sale or distribution of Common Units, or any securities
convertible into or exchangeable or exercisable for Common Units, during the
seven days prior to and the 180-day period beginning on the effective date of a
Public Offering (except as part of such Public Offering), unless the
underwriters managing such Public Offering otherwise agree (which agreement
shall be equally applicable to all holders of Registrable Securities) and (ii)
to execute and deliver any reasonable agreement which is consistent with the
provisions of clause (i) of this Section 4(a) and which may be required by the
underwriters managing such Public Offering.
(b) The Company (i) will not effect any sale or distribution of
Common Units, or any securities convertible into or exchangeable or exercisable
for Common Units, during the seven days prior to and during the 180-day period
beginning on the effective date of a Public Offering (except as part of such
Public Offering), unless the underwriters managing such Public Offering
otherwise agree (which agreement shall be equally applicable to all holders of
Registrable Securities), and (ii) will cause each holder of Common Units or any
securities convertible into or exchangeable or exercisable for Common Units,
purchased from the Company at any time after the date of this Agreement (other
than in a Public Offering) to agree not to effect any sale or distribution of
any such securities during such period (except as part of such Public Offering,
if otherwise permitted), unless the underwriters managing such Public Offering
otherwise agree.
5. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company will furnish to the counsel selected pursuant to Section 6(b) below
copies of all such documents proposed to be filed, which documents will be
subject to the prompt review and reasonable comment of such counsel), and upon
filing such documents, the Company shall promptly notify in writing such counsel
of the receipt by the Company of any written comments by the SEC with respect to
such registration statement or prospectus or any
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amendment or supplement thereto or any written request by the SEC for the
amending or supplementing thereof or for additional information with respect
thereto;
(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the SEC such amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than 180 days or, if
such registration statement relates to an underwritten offering, such longer
period as, in the opinion of counsel for the underwriters, a prospectus is
required by law to be delivered in connection with sales of Registrable
Securities by any underwriter or dealer or such shorter period as will terminate
when all of the securities covered by such registration statement have been
disposed of in accordance with the intended methods of disposition by the seller
or sellers thereof as set forth in such registration statement (but in any event
not before the expiration of any longer period required under the Securities
Act), and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement and cause the prospectus to be
supplemented by any required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act;
(c) furnish to each seller of Registrable Securities such number
of copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) if requested by the holders of a majority of the BRS
Registrable Securities in connection with any Demand Registration requested by
such holders, use its commercially reasonable efforts to cause to be included in
such registration Common Units having an aggregate value (based on the midpoint
of the proposed offering price range specified in the registration statement
used to offer such securities) of up to $50.0 million, to be offered in a
primary offering of the Company's securities contemporaneously with such
offering of Registrable Securities;
(e) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subsection, (ii) subject itself to taxation in any such
jurisdiction in any jurisdiction where it is not so subject or (iii) consent to
general service of process (i.e., service of process which is not limited solely
to securities law violations) in any such jurisdiction in any jurisdiction where
it is not so subject);
(f) promptly notify each seller of such Registrable Securities,
at any time when a prospectus relating thereto is required to be delivered under
the Securities Act, upon
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discovery that, or upon the discovery of the happening of any event as a result
of which the prospectus included in such registration statement contains an
untrue statement of a material fact or omits any fact necessary to make the
statements therein not misleading in light of the circumstances under which they
were made, and, at the request of any such seller, the Company will, as soon as
reasonably practicable, file and furnish to all sellers a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading in light of the circumstances under which they
were made;
(g) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the Nasdaq National Market System
("NASDAQ MARKET") and, if listed on the Nasdaq Market, use its best efforts to
secure designation of all such Registrable Securities covered by such
registration statement as a Nasdaq "National Market System security" within the
meaning of Rule 11Aa2-1 under the Exchange Act or, failing that, to secure
Nasdaq Market authorization for such Registrable Securities and, without
limiting the generality of the foregoing, to arrange for at least two market
makers to register as such with respect to such Registrable Securities with the
National Association of Securities Dealers;
(h) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(i) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including, without limitation, effecting a split or a
combination of stock or units); provided that no holder of Registrable
Securities shall have any indemnification or contribution obligations
inconsistent with Section 7 hereof;
(j) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information and participate in due diligence sessions reasonably requested by
any such seller, underwriter, attorney, accountant or agent in connection with
such registration statement;
(k) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the period of at
least twelve months beginning with the first day of the Company's first full
calendar quarter after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder;
(l) use reasonable best efforts to prevent the issuance of any
stop order ("STOP ORDER") suspending the effectiveness of a registration
statement, or of any order suspending or
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preventing the use of any related prospectus or suspending the qualification of
any securities included in such registration statement for sale in any
jurisdiction, and, in the event of such issuance, the Company shall immediately
notify the holders of Registrable Securities included in such registration
statement of the receipt by the Company of such notification and shall use its
best efforts promptly to obtain the withdrawal of such order;
(m) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of such Registrable Securities,
and cooperate and assist with any filings to be made with the NASD;
(n) obtain one or more "cold comfort" letters, dated the
effective date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwriting agreement), signed by the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by "cold comfort" letters as the holders of a majority of the
Registrable Securities being sold reasonably request; and
(o) provide a legal opinion of the Company's outside counsel,
dated the effective date of such registration statement (and, if such
registration includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), with respect to the registration
statement, each amendment and supplement thereto, the prospectus included
therein (including the preliminary prospectus) and such other documents relating
thereto in customary form and covering such matters of the type customarily
covered by legal opinions of such nature.
If any such registration or comparable statement refers to any holder by name or
otherwise as the holder of any securities of the Company and if in such holder's
sole and exclusive judgment, such holder is or might be deemed to be an
underwriter or a controlling person of the Company, such holder shall have the
right to (i) require the insertion therein of language, in form and substance
satisfactory to such holder and presented to the Company in writing, to the
effect that the holding by such holder of such securities is not to be construed
as a recommendation by such holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such holder
will assist in meeting any future financial requirements of the Company, or (ii)
in the event that such reference to such holder by name or otherwise is not
required by the Securities Act or any similar Federal statute then in force,
require the deletion of the reference to such holder; provided, that with
respect to this clause (ii), if requested by the Company, such holder shall
furnish to the Company an opinion of counsel to such effect, which opinion and
counsel shall be reasonably satisfactory to the Company.
6. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all Registration
Expenses, will be borne by the Company.
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(b) In connection with each Demand Registration and each
Piggyback Registration, the Company will reimburse the holders of Registrable
Securities included in such registration for the reasonable fees and
disbursements of one counsel chosen by the holders of a majority of the
Registrable Securities initially requesting such registration (which counsel
shall be retained to represent all such holders).
7. INDEMNIFICATION.
(a) BY THE COMPANY. The Company agrees to, and will cause each
of its Subsidiaries to agree to, indemnify, to the fullest extent permitted by
law, each holder of Registrable Securities, its officers, directors, members,
employees, agents, stockholders and general and limited partners and each Person
who controls such holder (within the meaning of the Securities Act and Exchange
Act) against any and all losses, claims, damages, liabilities and expenses (or
actions or proceedings, whether commenced or threatened, in respect thereof),
joint or several, arising out of or based upon any untrue or alleged untrue
statement of material fact contained in any registration statement, reports
required and other documents filed under the Exchange Act, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto, together
with any documents incorporated therein by reference, or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation or alleged violation by
the Company or any of its Subsidiaries of any federal, state, foreign or common
law rule or regulation and relating to action or inaction in connection with any
such registration, disclosure document or other document and shall reimburse
such holder, officer, director, member, employee, agent, stockholder, partner or
controlling Person for any legal or other expenses, including any amounts paid
in any settlement effected with the consent of the Company, which consent will
not be unreasonably withheld or delayed, incurred by such holder, officer,
director, member, employee, agent, stockholder, partner or controlling Person in
connection with the investigation or defense of such loss, claim, damage,
liability or expense, except insofar as the same are caused by or contained in
any information furnished in writing to the Company by such holder expressly for
use therein. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers, directors, agents and employees and
each Person who controls such underwriters (within the meaning of the Securities
Act) to the same extent as provided above with respect to the indemnification of
the holders of Registrable Securities.
(b) BY THE HOLDERS. In connection with any registration
statement in which a holder of Registrable Securities is participating, each
such holder will furnish to the Company in writing such information and
affidavits about such holder as the Company reasonably requests for use in
connection with any such registration statement or prospectus and, to the extent
permitted by law, will indemnify the Company, its directors and officers and
each Person who controls the Company (within the meaning of the Securities Act)
and the other holders of Registrable Securities against any losses, claims,
damages, liabilities and expenses resulting from any untrue or alleged untrue
statement of material fact contained in the registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is contained in any information or
affidavit so furnished in writing by such holder which authorizes its use in the
applicable document; provided, that the obligation to indemnify
11
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will be individual, not joint and several, for each holder and will be limited
to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) CLAIM PROCEDURES. Any Person entitled to indemnification
hereunder will (i) give prompt written notice to the indemnifying party of any
claim with respect to which it seeks indemnification (provided that the failure
to give prompt notice will not impair any Person's right to indemnification
hereunder to the extent such failure has not prejudiced the indemnifying party)
and (ii) unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist with
respect to such claim, permit the indemnifying party to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent it may wish, with counsel reasonably satisfactory to the indemnified
party. If such defense is assumed, the indemnifying party will not be subject to
any liability for any settlement made by the indemnified party without its
consent (but such consent will not be unreasonably withheld or delayed) and the
indemnifying party shall not, without the consent of the indemnified party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof, a release from all liability in
respect of such claim or litigation provided by the claimant or plaintiff to
such indemnified party. An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay (i) the fees
and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim or (ii) any settlement made by any indemnified party without such
indemnifying party's consent (but such consent will not be unreasonably
withheld).
(d) SURVIVAL; CONTRIBUTION. The indemnification provided for
under this Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
agent or employee and each other Person who participates as an underwriter in
the offering or sale of such securities and each other Person, if any, who
controls such indemnified party (within the meaning of the Securities Act), and
will survive the transfer of securities. The Company also agrees to make such
provisions, as are reasonably requested by any indemnified party, for
contribution to such party in the event the Company's indemnification is
unavailable for any reason.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements (including, without limitation, pursuant to the
terms of any over-allotment or "green shoe" option requested by the managing
underwriter(s), provided that no holder of Registrable Securities will be
required to sell more than the number of Registrable Securities that such holder
has requested the Company to include in any registration) and (b) completes and
executes all customary questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements; provided, that no holder of Registrable Securities
included in any underwritten registration shall be required to make any
representations or warranties to the Company or the underwriters (other than
representations and warranties
12
<Page>
regarding such holder and such holder's intended method of distribution) or to
undertake any indemnification or contribution obligations to the Company or the
underwriters with respect thereto, except as otherwise provided in Section 7.
9. RULE 144 REPORTING. With a view to making available to the
holders of Registrable Securities the benefits of certain rules and regulations
of the SEC which may permit the sale of the Registrable Securities to the public
without registration, the Company agrees at its expense to use its best efforts
to:
(a) make and keep current public information available, within
the meaning of Rule 144 or any similar or analogous rule promulgated under the
Securities Act, at all times after it has become subject to the reporting
requirements of the Exchange Act;
(b) file with the SEC, in a timely manner, all reports and other
documents required of the Company under the Securities Act and Exchange Act
(after it has become subject to such reporting requirements); and
(c) so long as any party hereto owns any Registrable Securities,
furnish to such Person forthwith upon request, a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144
(at any time commencing 90 days after the effective date of the first
registration filed by the Company for an offering of its securities to the
general public), the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements); a copy of the most recent
annual or quarterly report of the Company; and such other reports and documents
as such Person may reasonably request in availing itself of any rule or
regulation of the SEC allowing it to sell any such securities without
registration.
10. 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 delivered if delivered
personally, sent via a nationally recognized overnight courier, or sent via
facsimile to the recipient, or if sent by certified or registered mail, return
receipt requested, will be deemed to have been given two business days
thereafter. Such notices, demands and other communications shall be sent to any
holder of Registrable Securities at such holder's last address on the records of
the Company, and to the Company at the address indicated below:
TO THE COMPANY:
H&E Holdings L.L.C.
1110 Mead Road, Second Floor
Baton Rouge, Louisiana 70816
Attention: Chief Executive Officer
Tel: (225) 298-5230
Fax: (225) 298-5382
13
<Page>
WITH A COPY, WHICH SHALL NOT CONSTITUTE NOTICE, TO:
BRS Equipment Company, Inc.
c/o Bruckmann, Rosser, Sherrill & Co., Inc.
126 East 56th Street, 29th Floor
New York, NY 10022
Attention: Bruce Bruckmann and
Rice Edmonds
Tel: (212) 521-3700
Fax: (212) 521-3799
and
Kirkland & Ellis
153 East 53rd Street
New York, NY 10022
Attention: W. Brian Raftery, Esq.
Tel: (212) 446-4800
Fax: (212) 446-4900
and
Taylor, Porter, Brooks & Phillips, L.L.P.
Bank One Center
451 Florida Boulevard, 8th Floor
Baton Rouge, Louisiana 70821
Attention: J. Ashley Moore, Esq.
Tel: (225) 381-0218
Fax: (225) 346-8049
and
Kesler & Rust
2000 Beneficial Life Tower
36 South State Street
Salt Lake City, Utah 84111
Attention: Joseph C. Rust, Esq.
Tel: (801) 532-8000
Fax: (801) 531-7965
or such other address, telecopy number or to the attention of such other person
as the recipient party shall have specified by prior written notice to the
sending party.
11. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company represents and
warrants to the holders of Registrable Securities that the registration rights
granted to the holders of such securities hereby do not conflict with any other
registration rights granted by the Company.
14
<Page>
(b) REMEDIES. Any Person having rights under any provision of
this Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may
be amended or waived only upon the prior written consent of the Company and
holders of at least a majority of the number of BRS Registrable Securities; and
any amendment to which such written consent is obtained will be binding upon the
Company and all holders of Registrable Securities.
(d) SUCCESSORS AND ASSIGNS. All covenants and agreements 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 the parties hereto
whether so expressed or not, including any corporation which is a successor to
the Company.
(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 prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(f) 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 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. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
(i) 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.
(j) TRANSFER. Prior to transferring any Registrable Securities
(other than a transfer pursuant to which such Securities cease to be Registrable
Securities) to any Person, the Person transferring such Registrable Securities
will cause the prospective transferee to execute and deliver to the Company, a
joinder to this Agreement substantially in the form of EXHIBIT A
15
<Page>
hereto pursuant to which the prospective transferee agrees to be bound by this
Agreement to the same extent as the Person transferring such Registrable
Securities with respect to the Registrable Securities so transferred.
(k) ISSUANCE BY THE COMPANY OF ADDITIONAL COMMON UNITS. The
parties hereto hereby acknowledge that, after the date hereof, the Company may
issue additional Common Units to certain Persons (the "NEW MEMBERS"). In
connection with any such issuance, the parties hereto agree that, with the prior
written consent of BRSEC and BRSEC-II, the Company may grant (but shall be under
no obligation to grant) such New Members rights substantially similar to the
rights granted to the holders of Other Registrable Securities hereunder
(provided that, if such grant is made, each such New Member is also subject to
the obligations of holders of Other Registrable Securities hereunder) by causing
each such New Member to execute a joinder to this Agreement substantially in the
form of EXHIBIT A hereto.
* * * * *
16
<Page>
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first above written.
H&E HOLDINGS L.L.C.
By: /s/ John M. Engquist
--------------------------------------------
Name: John M. Engquist
Title: Chief Executive Officer and
President
BRSEC CO-INVESTMENT, LLC
By: /s/ Rice Edmonds
--------------------------------------------
Name: Rice Edmonds
Title: Secretary
BRSEC CO-INVESTMENT II, LLC
By: /s/ Rice Edmonds
--------------------------------------------
Name: Rice Edmonds
Title: Secretary
/s/ John M. Engquist
-----------------------------------------------
JOHN M. ENGQUIST
/s/ John M. Engquist
-----------------------------------------------
KRISTAN ENGQUIST DUNNE, by John M. Engquist,
through of Power of Attorney dated May 15, 1999
WHEELER INVESTMENTS, INC.
By: /s/ Don M. Wheeler
--------------------------------------------
Name: Don M. Wheeler
Title: President
<Page>
[Continuation of Signature Page to this Registration Rights Agreement]
/s/ Don Wheeler
-----------------------------------------------
DON WHEELER
SOUTHERN NEVADA CAPITAL CORPORATION
By: /s/ Dale Roesener
--------------------------------------------
Name: Dale Roesener
Title: President
BAGLEY FAMILY INVESTMENTS, L.L.C.
By: /s/ Gary Bagley
--------------------------------------------
Name: Gary Bagley
Title: Manager
/s/ Kenneth Sharp, Jr.
-----------------------------------------------
KENNETH SHARP, JR.
/s/ Siegfried Wallin
-----------------------------------------------
SIEGFRIED WALLIN
THE CONNER FAMILY TRUST
By: /s/ Ralph M. Conner
--------------------------------------------
Name: Ralph M. Conner
Title: Trustee
THE MCCLAIN FAMILY REVOCABLE TRUST
By: /s/ Steven M. McClain
--------------------------------------------
Name: Steven M. McClain
Title: Trustee
<Page>
[Continuation of Signature Page to this Registration Rights Agreement]
C/J LAND & LIVESTOCK L.P.
By: Illegible
--------------------------------------------
Name:
Title:
JOHN AND ELLEN WILLIAMS LIMITED PARTNERSHIP
By: /s/ John D. Williams
--------------------------------------------
Name: John D. Williams
Title: Partner
ROBERT G. WILLIAMS LIMITED PARTNERSHIP
By: /s/ Robert G. Williams
--------------------------------------------
Name: Robert G. Williams
Title: Member
<Page>
EXHIBIT A
FORM OF JOINDER TO
REGISTRATION RIGHTS AGREEMENT
THIS JOINDER to the Registration Rights Agreement dated as of
June 17, 2002, by and among H&E Holdings L.L.C., a Delaware limited liability
company (the "COMPANY"), and certain securityholders of the Company (the
"AGREEMENT"), is made and entered into as of _________ by and between the
Company and _________________ ("HOLDER"). Capitalized terms used herein but not
otherwise defined shall have the meanings set forth in the Agreement.
WHEREAS, Holder has acquired _____ [CLASS [A/B] COMMON UNITS]
from ___________.
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 Joinder hereby
agree as follows:
1. AGREEMENT TO BE BOUND. Holder hereby (i) acknowledges that
it has received and reviewed a complete copy of the Agreement and (ii) agrees
that upon execution of this Joinder, it shall become a party to the Agreement
and shall be fully bound by, and subject to, all of the covenants, terms and
conditions of the Agreement as though an original party thereto. In addition,
Holder hereby agrees that all Common Units held by Holder shall be deemed [BRS
REGISTRABLE SECURITIES/OTHER REGISTRABLE SECURITIES] and Registrable Securities
for all purposes of the Agreement.
2. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
this Joinder shall bind and inure to the benefit of and be enforceable by the
Company and its successors, heirs and assigns and Holder and any subsequent
holders of Registrable Securities and the respective successors, heirs and
assigns of each of them, so long as they hold any Registrable Securities.
3. NOTICES. For purposes of Section 10 of the Agreement, all
notices, demands or other communications to the Holder shall be directed to:
[NAME]
[ADDRESS]
4. COUNTERPARTS. This Joinder may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
5. GOVERNING LAW. This Joinder 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.
6. DESCRIPTIVE HEADINGS. The descriptive headings of this
Joinder are inserted for convenience only and do not constitute a part of this
Joinder.
<Page>
IN WITNESS WHEREOF, the parties hereto have executed this Joinder
to the Registration Rights Agreement as of the date set forth in the
introductory paragraph hereof.
H&E HOLDINGS L.L.C.
By:
--------------------------------------------
Name:
Title:
[HOLDER]
By:
--------------------------------------------
Name:
Title: