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EXHIBIT 99.12
EXECUTION COPY
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INVESTOR RIGHTS AGREEMENT
BY AND AMONG
H&E HOLDINGS L.L.C.,
BRSEC CO-INVESTMENT, LLC,
BRSEC CO-INVESTMENT II, LLC AND
CREDIT SUISSE FIRST BOSTON CORPORATION
JUNE 17, 2002
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This INVESTOR RIGHTS AGREEMENT (this "AGREEMENT") is entered into 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") and Credit Suisse First Boston Corporation (the
"INVESTOR").
RECITALS
WHEREAS, on June 17, 2002, the Investor purchased units offered by H&E
Equipment Services L.L.C. ("H&E EQUIPMENT SERVICES"), H&E Finance Corp. ("H&E
FINANCE") and the Company consisting of (a) 12 1/2% Senior Subordinated Notes
due 2013 issued jointly by H&E Equipment Services and H&E Finance and (b)
limited liability company interests issued by the Company.
WHEREAS, as a result of such purchase of units by the Investor, as of
the date hereof the Investor owns a number of the Company's Class A Common
Units, Class B Common Units, Series A Preferred Units, Series B Preferred Units,
Series C Preferred Units and Series D Preferred Units, which represent in the
aggregate 5% of the total outstanding LLC Interests (as defined below) of the
Company.
WHEREAS, as of the date hereof, BRSEC owns a number of the Company's
Class A Common Units, Series A Preferred Units, Series B Preferred Units and
Series C Preferred Units; and (ii) BRSEC-II owns a number of the Company's Class
A Common Units, Series B Preferred Units, Series C Preferred Units and Series D
Preferred Units.
WHEREAS, as of the dated hereof, (i) 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") each own a number of the Company's
Class B Common Units; and (ii) some of Engquist, Dunne, Wheeler Investments,
Wheeler, SNCC, Bagley Investments, Sharp, Wallin, Conner Trust, McClain Trust,
Gerald Williams Investments, John Williams Investments and Robert Williams
Investments own some of the Series A Preferred Units, Series B Preferred Units,
Series C Preferred Units and Series D Preferred Units of the Company.
WHEREAS, Schedule 1 to this Agreement sets forth a complete list of
all equity securities of the Company that will be outstanding at the close of
business on the date hereof (including all securities exerciseable for or
convertible into any such equity securities) and the name of the owners thereof.
WHEREAS, on June 17, 2002, the Company, BRSEC and BRSEC-II, entered
into a Securityholders Agreement ("SECURITYHOLDERS AGREEMENT"), with Engquist,
Dunne, Wheeler Investments, Wheeler, SNCC, Bagley Investments, Sharp, Wallin,
Conner Trust, McClain Trust, Gerald Williams Investments, John Williams
Investments and Robert Williams Investments, pursuant to which the parties
therein established, among other things, the manner
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and terms by which the Management Interests and Other Interests (as defined
below) may be transferred.
WHEREAS, the Company, BRSEC, BRSEC-II and the Investor desire to enter
into this Agreement for the purposes, among others, of limiting the manner and
terms by which the LLC Interests (as defined below) may be transferred, and
otherwise agreeing as to certain matters relating to the Company's equity
securities.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the parties hereto
agree as follows:
SECTION 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.
"BOARD" means the Company's board of directors.
"BRS INVESTOR" means any of BRSEC, BRSEC-II or any of their respective
Permitted Transferees.
"BRS MAJORITY HOLDERS" means, at any time, the holders of a majority
of the number of the BRS Units that are Common Units.
"BRS UNITS" means all LLC Interests owned by any BRS Investor.
"CLASS A COMMON UNITS" means the Company's Class A Common Units (as
such term is defined in the LLC Agreement).
"CLASS A DIRECTOR" shall have the meaning assigned to such term 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).
"CLASS B DIRECTOR" shall have the meaning assigned to such term in the
LLC Agreement.
"COMMISSION" means the Securities and Exchange Commission.
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"COMMON UNITS" means collectively the Class A Common Units, the Class
B Common Units and any other equity securities of the Company (or its
successors) that are not limited to a fixed sum or percentage of par value or
stated value in respect of 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.
"EXEMPT TRANSFER" has the meaning specified in Section 2(a)(iv).
"FAMILY GROUP" means, with respect to any Person who is an individual,
(i) such Person's spouse, former spouse, ancestors and descendants (whether
natural or adopted), parents and their descendants and any spouse of the
foregoing persons (collectively, "RELATIVES"), (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 or (iii) any limited partnership,
limited liability company or trust the governing instruments of which provide
that such Person shall have the exclusive, nontransferable power to direct the
management and policies of such entity and of which the sole owners of
partnership interests, membership interests or any other equity interests are,
and will remain, limited to such Person and such Person's relatives.
"INDEPENDENT THIRD PARTY" means any Person who, immediately prior to
the contemplated transaction, does not own in excess of 5% of the number of
Common Units on a fully diluted basis (a "5% OWNER"), who is not an Affiliate of
any such 5% Owner and who is not a member of the Family Group of any such 5%
Owner or a trust for the benefit of any such 5% Owner and/or such other Persons.
"INVESTOR UNITS" means all LLC Interests owned from time to time by
the Investor or any Permitted Transferee of the Investor.
"LLC AGREEMENT" means the Limited Liability Company Agreement of the
Company, dated June 17, 2002, as amended from time to time.
"LLC INTERESTS" means (i) all Common Units, (ii) all Preferred Units
and (iii) all equity securities issued directly or indirectly with respect to
any Common Units referred to in clause (i) above or with respect to any
Preferred Units referred to in clause (ii) above, in each case, by way of a unit
or stock dividend or other distribution, 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 units or shares constituting LLC
Interests, such units or shares will cease to be LLC Interests when they have
been Transferred in a Public Sale.
"LLC INTERESTS HOLDERS" means collectively the BRS Investors and the
Investor.
"MANAGEMENT INTERESTS" means the LLC Interests owned by the Management
Investors.
"MANAGEMENT INVESTOR" means any of Engquist, Dunne, SNCC, Bagley
Investments, Sharp, McClain Trust, or any of their respective Permitted
Transferees.
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"NOTES" means the 13 1/2% Senior Subordinated Notes due 2013 of H&E
Equipment Services L.L.C. and H&E Finance Corp.
"OTHER INTERESTS" means the LLC Interests owned by the Other
Investors.
"OTHER INVESTOR" means any of Wheeler Investments, Wheeler, Wallin,
Conner Trust, Gerald Williams Investments, John Williams Investments, Robert
Williams Investments or any of their respective Permitted Transferees.
"PERMITTED TRANSFEREE" means (i) with respect to any BRS Investor, any
Person who acquires LLC Interests from such BRS Investor in an Exempt Transfer
in accordance with Section 2(a)(iv) hereof, and (ii) with respect to the
Investor, any Person who acquires LLC Interests from the Investor or from any of
its Permitted Transferees; PROVIDED, that the provisions of this Agreement shall
no longer apply to any LLC Interests that are sold in a Public Sale.
"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 governmental entity or any
department, agency or political subdivision thereof or any other entity or
organization.
"PREFERRED UNITS" means any of the Series A Preferred Units, Series B
Preferred Units, Series C Preferred Units, Series D Preferred Units or any other
preferred equity securities authorized by the Company (or its successors) which
are not Common Units.
"PUBLIC OFFERING" means an underwritten public offering and sale of
equity securities of the Company 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 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; PROVIDED further that an offering shall not be deemed a Public Offering
unless the Company's equity securities are at the time listed for trading on a
national securities exchange or are authorized for trading on the Nasdaq
National Market System.
"PUBLIC SALE" means any sale of LLC Interests to the public pursuant
to an offering registered under the Securities Act or, after the consummation of
an initial Public Offering, to the public pursuant to the provisions of Rule 144
(or any similar rule or rules then in effect) under the Securities Act.
"QUALIFYING PUBLIC OFFERING" means any Public Offering that results in
at least $50.0 million of equity securities of the Company having been sold to
the public pursuant to one or more registration statements (other than on Form
S-4 or Form S-8 or any similar form); PROVIDED that the Company's equity
securities are at the time listed for trading on a national securities exchange
or is authorized for trading on the Nasdaq National Market System at such time.
"RELATED PARTY" has the meaning specified in Section 2(a)(v).
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"REGISTRABLE SECURITIES" means the LLC Interests held by the Investor
or any of its Permitted Transferees and any successor securities but only until
such time as such securities (i) have been effectively registered under the Act
and disposed of in accordance with the Registration Statement covering it or
(ii) have been sold to the public pursuant to Rule 144 (or any similar provision
then in force) under the Act and the Legend referred to in Section 7(a) has been
removed from the certificate representing such security.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SERIES A PREFERRED UNITS" means the Company's Series A Preferred
Units (as such term is defined in the LLC Agreement).
"SERIES B PREFERRED UNITS" means the Company's Series B Preferred
Units (as such term is defined in the LLC Agreement).
"SERIES C PREFERRED UNITS" means the Company's Series C Preferred
Units (as such term is defined in the LLC Agreement).
"SERIES D PREFERRED UNITS" means the Company's Series D Preferred
Units (as such term is defined in the LLC Agreement).
"TCW" means collectively, TCW Leveraged Income Trust IV, L.P.,
TCW/Crescent Mezzanine Partners III, L.P., TCW/Crescent Mezzanine Trust III and
TCW/Crescent Mezzanine Partners III Netherlands, L.P. and their respective
Affiliates.
"TRANSFER" means any direct or indirect sale, transfer, conveyance,
assignment, pledge, hypothecation, gift, delivery or other disposition or
encumbrance.
SECTION 2. RESTRICTIONS ON TRANSFER OF LLC INTERESTS.
(a) TAG-ALONG RIGHTS.
(i) With respect to any proposed Transfer of any equity
securities of the Company of any class or series by any BRS Investor (the
"BRS TRANSFERRING INVESTOR") to a person (such other person being hereafter
referred to as the "PROPOSED PURCHASER"), other than pursuant to an Exempt
Transfer (as defined below), the Investor and each of its Permitted
Transferees (collectively, the "TAG-ALONG INVESTORS") shall each have the
right (the "TAG-ALONG RIGHT") to require the proposed purchaser to purchase
from it up to the number of units or shares, as applicable, of the class or
series of such type of equity securities being transferred by the BRS
Transferring Investor that are at the time owned by each such Tag-Along
Investor equalling the sum of (A) the number derived by multiplying the
total number of units or shares, as applicable, the BRS Transferring
Investor proposes to Transfer by a fraction, the numerator of which is the
total number of units or shares, as applicable, of the class or series of
such type of equity securities being transferred that are at that time
owned by such Tag-Along Investor, and the denominator of which is the total
number of units or shares, as applicable, of the class or series of such
type of equity securities being transferred that are at that time owned by
the BRS Investors and all Tag-Along Investors as a group and (b) any
additional units or
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shares, as applicable, of the class or series of such type of equity
securities being offered such Tag-Along Investor shall be entitled to have
purchased pursuant to the next paragraph if any other Tag-Along Investor
elects not to exercise its rights hereunder. Any units or shares, as
applicable, purchased from Tag-Along Investors pursuant to this Section
2(a) shall be paid for at the same price per unit or share, as applicable,
and upon the same terms and conditions as such proposed Transfer by the BRS
Transferring Investor (or its Related Parties, as the case may be), it
being agreed however, that such terms and conditions will not include the
making of any representations and warranties, indemnities or other similar
agreements other than customary representations and warranties with respect
to title of the units or shares, as applicable, being sold and authority to
sell such units or shares, as applicable, absence of conflicts with
applicable law or material agreements of the transferor and customary
indemnities related thereto. At least 15 business days prior to each
proposed transfer, the Company and the BRS Transferring Investor will
notify, or cause to be notified, each Tag-Along Investor in writing of each
such proposed transfer. Such notice shall set forth: (i) the name of the
transferor and the number of units or shares, as applicable, proposed to be
transferred, (ii) the name and address of the proposed purchaser, (iii) the
proposed amount and form of consideration and terms and conditions of
payment offered by such proposed purchaser and (iv) that the proposed
purchaser has been informed of the Tag-Along Right provided for in this
Section 2(a) and has agreed to purchase units or shares, as applicable, in
accordance with the terms hereof.
(ii) The Tag-Along Right may be exercised by any Tag-Along
Investor by delivery of a written notice to the Company or the BRS
Transferring Investor proposing to sell units or shares, as applicable,
(the "TAG-ALONG NOTICE") within 15 business days following its receipt of
the notice specified in the last sentence of the preceding paragraph. The
Tag-Along Notice shall state the amount of units or shares, as applicable,
that such Tag-Along Investor proposes to include in such transfer to the
proposed purchaser determined as aforesaid, plus the amount of additional
units or shares, as applicable, if any, that such Tag-Along Investor would
be willing to sell to the proposed purchaser in the event that any of the
other Tag-Along Investors elect not to exercise their Tag-Along Rights in
whole or in part. The maximum amount of additional units or shares, as
applicable, that each such Tag-Along Investor shall be entitled to sell,
and the proposed purchaser be required to purchase, shall be determined by
multiplying the total number of units or shares, as applicable, that, under
the formula described in the previous paragraph, Tag-Along Investors could
have elected to sell to the proposed purchaser but elected not to so sell,
by a fraction, the numerator of which is the total number of units or
shares, as applicable, of such class or series of such type of LLC
Interests being transferred that are at that time owned by such Tag-Along
Investor electing to sell additional units or shares, as applicable, and
the denominator of which is the total number of units or shares, as
applicable, of such class or series of such type of LLC Interests being
transferred that are at that time owned by all Tag-Along Investors who
delivered Tag-Along Notices. In the event that the proposed purchaser does
not purchase units or shares, as applicable, from the Tag-Along Investors
on the same terms and conditions as specified in the notice referred to in
the last sentence of the preceding paragraph, then the BRS Transferring
Investor and its Related Parties shall not be permitted to Transfer any
units or shares, as applicable, to the proposed purchaser in the
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proposed Transfer. If no Tag-Along Notice is received during the
15-business day period referred to above (or if such notices do not cover
all the units or shares, as applicable, proposed to be transferred to the
proposed purchaser), the BRS Transferring Investor and its Related Parties
shall have the right, for a 90-day period after the expiration of the
15-business day period referred to above, to transfer the units or shares,
as applicable, specified in the notice referred to in the last sentence of
the preceding paragraph (or the remaining units or shares, as applicable)
on terms and conditions no more favorable to the BRS Transferring Investor
than those stated in the Tag-Along Notice and in accordance with the
provisions of this Section 2(a).
(iii) For purposes of this Section 2(a), the Class A Common
Units and the Class B Common Units will be deemed to be the same type and
class of LLC Interests, whereas each of the Series A Preferred Units,
Series B Preferred Units, Series C Preferred Units and Series D Preferred
Units will be deemed to be a different series and type of LLC Interests.
(iv) As used herein, the term "EXEMPT TRANSFER" means (1)
transfers by any BRS Investor to its Related Parties; (2) transfers by any
BRS Investor's Related Parties to such BRS Investor; (3) transfers since
the date of this Agreement by BRS Investors of any units or shares, as
applicable, of a class or series of equity interests of the Company not to
exceed, in the aggregate, 10% of the number of units or shares, as
applicable, of such class or series owned by them as of the date hereof;
(4) distributions by a BRS Investor to its constituent partners or members
proportionate to their interest in the BRS Investor; and (5) transfers by
any BRS Investor or any of its Related Parties in a Public Sale; PROVIDED,
HOWEVER, that no such transfer (except as set forth in (5) above) shall be
an Exempt Transfer unless the transferee agrees in writing to be bound by
this Agreement as if such transferee were a BRS Investor with respect to
such transferred units or shares, as applicable, by executing a joinder
agreement in the form of Exhibit A hereto.
(v) As used herein, the term "RELATED PARTY" with respect to
any BRS Investor means: (A) any parent, controlling stockholder, or a more
than 80% owned subsidiary of such BRS Investor; (B) any member of the
Family Group of such BRS Investor; or (C) any trust, corporation,
partnership or other entity, the beneficiaries, stockholders, partners,
owners or persons holding more than a 80% controlling interest of which
consist of such BRS Transferring Investor and/or such other persons or
entities referred to in the immediately preceding clauses (A) and (B).
(vi) The Investor Transferring LLC Interests pursuant to
Section 2(a)(i) shall pay its own out-of-pocket expenses incurred in
connection with such Transfer and shall take all reasonably necessary and
desirable actions as reasonably directed by the BRS Transferring Investor
in connection with the consummation of such Transfer, including without
limitation executing all applicable purchase agreement documents of
transfer subject to the provisions of Section 2(a).
(vii) The Tag-Along Right provided under this Section 2 shall
terminate upon the consummation of a Qualifying Public Offering.
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(viii) Each Tag-Along Investor shall have Tag-Along Rights with
respect to all equity securities of the Company owned by it from time to
time, including those acquired after the date hereof, so long as the same
are Registrable Securities. The BRS Investors will hold all of their equity
securities of the Company subject to the Tag-Along Right, including those
acquired after the date hereof except for those equity securities of a
class or series of which no securities of such class or series are then
held by a Tag-Along Investor.
(ix) The Company agrees not to effect any Transfer of equity
securities of the Company by any BRS Investor until it has received
evidence reasonably satisfactory to it that the Tag-Along Right, if
applicable to such transfer, has been complied with.
(b) If any LLC Interests Holder Transfers LLC Interests to an
Affiliate and an event occurs which causes such Affiliate to cease to be an
Affiliate of such LLC Interests Holder unless, prior to such event, such
Affiliate Transfers such LLC Interests back to such LLC Interests Holder, then,
in each case, such event or Transfer shall be deemed a Transfer of LLC Interests
subject to all of the restrictions on Transfers of LLC Interests set forth in
this Agreement, including without limitation, this Section 2.
SECTION 3. DRAG-ALONG RIGHT.
(a) If BRS Majority Holders approve a sale of all or substantially
all of the Company's assets determined on a consolidated basis or a sale of 85%
or more (measured by fair market value) of the aggregate equity interests of the
Company at the time owned by the BRS Investors (in either case, whether by
merger, recapitalization, consolidation, reorganization, combination or
otherwise) or any other transaction which has the same effect as any of the
foregoing, to an Independent Third Party or group of Independent Third Parties
in a transaction in which (a) more than 50% of the aggregate equity interests of
the Company (on a fully diluted basis) are to be transferred and (b) all Holders
of the same class or series of LLC Interests that are being Transferred in such
transaction are treated identically except as provided below in this Section 3
(each such sale or transaction, an "APPROVED COMPANY SALE"), then each LLC
Interests Holder will vote for, consent to and raise no objections against the
Approved Company Sale or the process. If the Approved Company Sale is structured
as a merger or consolidation, then each LLC Interests Holder shall waive any
dissenters rights, appraisal rights or similar rights in connection with such
merger or consolidation. If the Approved Company Sale is structured as a
Transfer of LLC Interests, then each LLC Interests Holder shall agree to sell
all, but not less than all, of his or its LLC Interests and rights to acquire
LLC Interests on the same terms and conditions, as applicable to the respective
types of LLC Interests to be Transferred by the BRS Majority Holders, it being
agreed however, that such terms and conditions will not include the making of
any representations and warranties, indemnities or other similar agreements
other than representations and warranties with respect to title of the units or
shares, as applicable, being sold and authority to sell such units or shares, as
applicable, absence of conflicts with applicable law or material agreements of
the transferor and indemnities related thereto. Subject to the foregoing, each
LLC Interests Holder shall take all necessary or desirable actions in connection
with the consummation of an Approved Company Sale as requested by the Board,
including, without limitation, executing the applicable documents of transfer.
Notwithstanding the
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foregoing, no LLC Interests Holder shall be required to participate in an
Approved Company Sale unless such holder is provided a reasonably acceptable
opinion of counsel to the effect that the transfer in connection with such
Approved Company Sale is not in violation of the registration or qualification
requirements of the federal or applicable state securities laws, or, if such
holder is not provided with such an opinion, the Company will indemnify such
holder for any such violation.
(b) Each LLC Interests Holder will bear its own costs incurred in
connection with any Approved Company Sale.
(c) The provisions of this Section 3 shall terminate upon the
consummation of a Qualifying Public Offering.
SECTION 4. LEGEND.
(a) Each certificate or instrument evidencing LLC Interests
originally issued to the Investor and each certificate or instrument issued in
exchange for or upon the Transfer of any LLC Interests originally issued to the
Investor (if such securities remain LLC Interests after such Transfer) shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN INVESTOR
RIGHTS AGREEMENT, DATED AS OF JUNE 17, 2002, AS MAY BE
AMENDED FROM TIME TO TIME, BY AND AMONG THE ISSUER AND
CERTAIN OF THE ISSUER'S EQUITYHOLDERS. THE HOLDER HEREOF IS
ENTITLED TO THE BENEFITS OF AND IS SUBJECT TO THE TERMS AND
CONDITIONS OF THE INVESTOR RIGHTS AGREEMENT. A COPY OF SUCH
INVESTOR RIGHTS AGREEMENT WILL BE FURNISHED WITHOUT CHARGE
BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST."
(b) The legend set forth above regarding this Agreement shall be
removed from the certificates evidencing any securities which cease to be LLC
Interests. Upon the request of any LLC Interests Holder, the Company shall
remove the Securities Act portion of the legend set forth above from the
certificate or certificates for such LLC Interests (if such LLC Interests are
certificated as of such time); PROVIDED, that such LLC Interests are eligible
(as reasonably determined by the Company in reliance upon an opinion of counsel
to the LLC
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Interests Holder) for sale pursuant to Rule 144(k) (or any similar rule or rules
then in effect) under the Securities Act.
SECTION 5. TRANSFERS IN VIOLATION OF AGREEMENT. Any Transfer or attempted
Transfer of any LLC Interests in violation of any provision of this Agreement or
the LLC Agreement shall be null and void, and the Company shall not record such
Transfer on its books or treat any purported transferee of such LLC Interests as
the owner of such securities for any purpose.
SECTION 6. PREEMPTIVE RIGHTS.
(a) Except in the case of an Exempt Issuance (as defined below), the
Company shall not issue (an "ISSUANCE") additional equity securities, or
securities convertible into or exchangeable for, or options to purchase, any
such equity securities, to any BRS Investor, officer, director or Affiliate of
the Company or any BRS Investor unless, prior to such Issuance, the Company
notifies the holders of Registrable Securities in writing of the Issuance and
grants to the holders of Registrable Securities the right (the "RIGHT") to
subscribe for and purchase a portion of such additional equity securities so
issued at the same price as issued in the Issuance such that, after giving
effect to the Issuance and exercise of the Right (including, if applicable, the
issuance of equity securities upon conversion, exchange or exercise of any such
security), the equity securities owned by the holders of Registrable Securities
(rounded to the nearest whole unit or share, as applicable) shall represent the
same percentage of the outstanding equity of the Company as was owned by the
holders of Registrable Securities prior to the Issuance. The Right may be
exercised by the holders of Registrable Securities at any time by written notice
to the Company received by the Company within 15 business days after receipt of
notice from the Company of the Issuance (the "ACCEPTANCE PERIOD"), and the
closing of the purchase and sale pursuant to the exercise of the Right shall
occur at least 15 days after the Company receives notice of the exercise of the
Right and prior to or concurrently with the closing of the Issuance.
(b) To the extent exercise of a Right by the holders of Registrable
Securities has not been received within the Acceptance Period, the Company may,
at its election, during a period of 90 days following the expiration of the
applicable Acceptance Period, issue and sell the remaining equity interests in
connection with the Issuance to any officer, director or Affiliate of the
Company or any BRS Investor at a price and upon terms not more favorable to such
any stockholder, officer, director or Affiliate of the Company or any BRS
Investor than those stated in the Company's notice to the holders of Registrable
Securities. In the event the Company has not sold any equity interests covered
by a Company's notice to the holders of Registrable Securities, to any
stockholder, officer, director or Affiliate of the Company or any BRS Investor
within such 90-day period, the Company shall not thereafter issue or sell such
equity interests to any stockholder, officer, director or Affiliate of the
Company or any BRS Investor, without first offering such to the holders of
Registrable Securities in the manner provided in this Section 6; PROVIDED,
HOWEVER, that failure by the holders of Registrable Securities to exercise its
option to purchase with respect to one Issuance and sale of equity interests
shall not affect its option to purchase equity interests in any subsequent
Issuance.
(c) EXEMPT ISSUANCES. Notwithstanding the foregoing, the Right shall
not apply (i) to any issuance of equity securities (or securities convertible
into or exchangeable for, or options to purchase, equity securities) to
employees or directors of the Company (other than
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any director elected by any BRS Investor) or any subsidiary, PROVIDED that the
aggregate amount of equity securities so issued shall not exceed the sum of (a)
10% of the aggregate number of Class A Common Units and Class B Common Units
outstanding at the close of business on the date hereof plus (b) the amount of
any LLC Interests repurchased by the Company from the BRS Investors or any
member of the Company's management team (and not reissued thereto), or (ii) to
any issuance, pro rata to all holders of equity securities, of equity securities
(or securities convertible into or exchangeable for, or options to purchase,
equity securities) as a dividend on, subdivision of, or other distribution in
respect of, the equity securities (each such issuance, an "EXEMPT ISSUANCE").
(d) TERMINATION. The provisions of this Section 6 shall terminate
upon consummation of a Qualifying Public Offering.
SECTION 7. REGISTRATION RIGHTS.
(a) PIGGYBACK REGISTRATION RIGHTS.
(i) RIGHT TO PIGGYBACK. Subject to the last sentence of this
subsection (i), whenever the Company proposes to register any equity
securities (or securities convertible into or exchangeable for, or options
to acquire, equity securities) with the Commission under the Act and the
registration form to be used may be used for the registration of the
Registrable Securities (a "PIGGYBACK REGISTRATION"), the Company will give
written notice to the holders of Registrable Securities, at least 30 days
prior to the anticipated filing date, of its intention to effect such a
registration, which notice will specify the proposed offering price (if
available), the kind and number of securities proposed to be registered,
the distribution arrangements and such other information that at the time
would be appropriate to include in such notice, and will, subject to
subsection (a)(ii) below, include in such Piggyback Registration all
Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 20 business days after the
effectiveness of the Company's notice. Except as may otherwise be provided
in this Agreement, Registrable Securities with respect to which such
request for registration has been received will be registered by the
Company and offered to the public in a Piggyback Registration pursuant to
this Section 7 on the terms and conditions at least as favorable as those
applicable to the registration of shares of equity securities (or
securities convertible into or exchangeable or exercisable for equity
securities) to be sold by the Company and by any other person selling under
such Piggyback Registration.
(ii) PRIORITY ON PIGGYBACK REGISTRATIONS. If the managing
underwriter or underwriters, if any, advise the holders of Registrable
Securities in writing that in its or their reasonable opinion that the
number or kind of securities proposed to be sold in such registration
(including Registrable Securities to be included pursuant to subsection
(a)(i) above) will materially adversely affect the success of such
offering, the Company will include in such registration the number of
securities, if any, which, in the opinion of such underwriter or
underwriters, or the Company, as the case may be, can be sold as follows:
(A) first, the securities the Company proposes to sell, (B) second, the
securities proposed to be sold by Persons initially requesting such
registration, if any (other than any BRS
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Investor), and (C) third, the securities proposed to be sold by any BRS
Investor and the Registrable Securities requested to be included in such
registration by the holders of Registrable Securities and all other Persons
having registration rights with respect to such offering. To the extent
that the privilege of including Registrable Securities in any Piggyback
Registration must be allocated among the holders of Registrable Securities
and other Persons pursuant to clause (B) or (C) above, the allocation shall
be made pro rata based on the number of Registrable Securities that each
such participant shall have requested to include therein or proposed to be
sold by any BRS Investor, as the case may be. If any holder of Registrable
Securities is excluded as a result of the foregoing restrictions from
registration, then such holder shall be entitled to sell, on a pro rata
basis, the excluded Registrable Securities, prior to any other Registrable
Securities, pursuant to the underwriters' over-allotment option.
(iii) SELECTION OF UNDERWRITERS. If any Piggyback Registration
is an underwritten offering, the Company will select a managing underwriter
or underwriters to administer the offering, which managing underwriter or
underwriters will be of nationally recognized standing.
(b) DEMAND REGISTRATION RIGHTS.
(i) RIGHT TO DEMAND BY THE HOLDERS OF REGISTRABLE SECURITIES.
On any two occasions after 180 days after the first Public Offering, the
holders of Registrable Securities holding 33% or more (singly or
collectively) of the Registrable Securities issued to the Investor on the
date hereof (or any successor security) (collectively, a "DEMANDING GROUP")
may, make a written request of the Company for registration with the
Commission, under and in accordance with the provisions of the Act, of all
or part of their Registrable Securities (a "DEMAND REGISTRATION");
PROVIDED, that (a) the Company need not effect a Demand Registration unless
such Demand Registration shall include at least 50% of the Registrable
Securities held on the date of such written request by the Demanding Group,
(b) the Company will not be obligated to effect any Demand Registration
within 180 days of the effectiveness of another registration statement, (c)
the Company may, if the Board unanimously determines in the exercise of its
reasonable judgment that to effect such Demand Registration at such time
would have a material adverse effect on the Company, defer such Demand
Registration for a single period not to exceed 90 days, and (c) if the
Company elects to defer any Demand Registration pursuant to the terms of
this sentence, no Demand Registration shall be deemed to have occurred for
purposes of this Agreement. Within 10 days after receipt of the request for
a Demand Registration, the Company will send written notice (the "NOTICE")
of such registration request and its intention to comply therewith to each
of the holders of Registrable Securities who are holders of Registrable
Securities and, subject to subsection (iii) below, the Company will include
in such registration all Registrable Securities of such holder of
Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 20 business days after the
effectiveness of the Notice. All requests made pursuant to this subsection
(b)(i) will specify the aggregate number of Registrable Securities
requested to be registered and will also specify the intended methods of
disposition thereof.
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(ii) PRIORITY ON DEMAND REGISTRATIONS. If in any Demand
Registration, the managing underwriter or underwriters thereof advise the
Company in writing that in its or their reasonable opinion the number of
securities proposed to be sold in such Demand Registration exceeds the
number that can be sold in such offering without having a material effect
on the success of the offering (including, without limitation, an impact on
the selling price or the number of Shares that any participant may sell),
the Company will include in such registration only the number of securities
that, in the reasonable opinion of such underwriter or underwriters (or
holders of Registrable Securities, as the case may be) can be sold without
having a material adverse effect on the success of the offering as follows:
(A) first, the Registrable Securities requested to be included in such
Demand Registration by the holders of Registrable Securities pro rata among
those requesting to be included in such Registration on the basis of the
number of securities requested to be included, (B) second, the securities
requested to be included in such Demand Registration by all other Persons
having registration rights with respect thereto pro rata among those
requesting such Registration on the basis of the number of securities
requested to be included, and (C) third, securities to be issued and sold
by the Company.
(iii) SELECTION OF UNDERWRITERS. If a Demand Registration is an
underwritten offering, the holders of a majority of the Registrable
Securities to be included in such Demand Registration held by members of
the Demanding Group that initiated such Demand Registration will select a
managing underwriter or underwriters of recognized national standing to
administer the offering.
(v) EFFECTIVE REGISTRATION STATEMENT. A demand registration
requested pursuant to this Section 7(b) shall not be deemed to have been
effected (i) unless a registration statement with respect thereto has
become effective; PROVIDED, HOWEVER, that if such registration does not
become effective after the Company has filed it solely by reason of the
refusal to proceed by the requesting holders of Registrable Securities
(other than a refusal to proceed based upon the advice of counsel relating
to a matter with respect to the Company), then such registration shall be
deemed to have been effected unless such requesting holders shall have
elected to pay all registration expenses referred to in Section 7(e) hereof
in connection with such registration, (ii) if, after the registration
statement that relates to such registration has become effective, such
registration statement becomes subject to any stop order, injunction or
requirement of the Commission or other governmental agency or court for any
reason and such stop order, injunction or requirement is not promptly
withdrawn or lifted, or (iii) the conditions to closing specified in the
purchase agreement or underwriting agreement entered into in connection
with such registration are not satisfied, other than by reason of some act
or omission by such requesting holders.
(c) REGISTRATION PROCEDURES. With respect to any Piggyback
Registration or Demand Registration (generically, a "REGISTRATION"), the Company
will, subject to Sections 7(a)(ii) and 7(b)(iii), as expeditiously as
practicable:
(i) prepare and file with the Commission, within 90 days
after mailing the applicable Notice, a registration statement or
registration statements, on Form S-3, if
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available, (the "REGISTRATION STATEMENT") relating to the applicable
Registration on any appropriate form under the Act, which form shall be
available for the sale of the Registrable Securities in accordance with the
intended method or methods of distribution thereof; PROVIDED that the
Company will include in any Registration Statement on a form other than
Form S-1 all information that the holders of the Registrable Securities so
to be registered shall reasonably request, (PROVIDED that such information
is either required by Form S-1 or relevant to the offering) and shall
include all financial statements required by the Commission to be filed
therewith, cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc. ("NASD"), and use all
commercially reasonable efforts to cause such Registration Statement to
become effective; PROVIDED FURTHER, that before filing a Registration
Statement or prospectus related thereto (a "Prospectus") or any amendments
or supplements thereto, the Company will furnish to the holders of the
Registrable Securities covered by such Registration Statement and the
underwriters, if any, copies of all such documents proposed to be filed,
which documents will be subject to the reasonable review of such holders
and underwriters and their respective counsel, and the Company will not
file any Registration Statement or amendment thereto or any Prospectus or
any supplement thereto to which the holders of a majority of the
Registrable Securities covered by such Registration Statement or the
underwriters, if any, shall reasonably object;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary
to keep each Registration Statement effective for the applicable period, or
such shorter period which will terminate when all Registrable Securities
covered by such Registration Statement have been sold; cause each
Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Act; and comply
with the provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of distribution by
the sellers thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) notify the selling holders of Registrable Securities and
the managing underwriters, if any, promptly, and (if requested by any such
person or entity) confirm such advice in writing, (A) when the Prospectus
or any Prospectus supplement or post-effective amendment has been filed,
and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any request by the
Commission for amendments or supplements to the Registration Statement or
the Prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose, (D) if at any time the representations and warranties of the
Company contemplated by subsection (xiv) below cease to be true and
correct, (E) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose and (F) of the happening of any event which makes any
statement made in the Registration Statement, the Prospectus or any
document incorporated therein by reference untrue or which requires the
making of any
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changes in the Registration Statement, the Prospectus or any document
incorporated therein by reference in order to make the statements therein
not misleading;
(iv) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement at the
earliest possible moment;
(v) if requested by the managing underwriter or underwriters
or a holder of Registrable Securities being sold in connection with an
underwritten offering, promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing underwriters and
the holders of a majority of the Registrable Securities being sold agree
should be included therein relating to the plan of distribution with
respect to such Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities being sold
to such underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the underwritten (or
best efforts underwritten) offering of the Registrable Securities to be
sold in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as notified of the matters
to be incorporated in such Prospectus supplement or post-effective
amendment;
(vi) furnish to each selling holder of Registrable Securities
and each managing underwriter, without charge, at least one conformed copy
of the Registration Statement and any amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(vii) deliver to each selling holder of Registrable Securities
and the underwriters, if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such selling holder of Registrable Securities and
underwriters may reasonably request; the Company consents to the use of
each Prospectus or any amendment or supplement thereto by each of the
selling holders of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered
by such Prospectus or any amendment or supplement thereto;
(viii) prior to any public offering of Registrable Securities,
register or qualify or cooperate with the selling holders of Registrable
Securities, the underwriters, if any, and their respective counsel in
connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or "blue sky" laws of
such jurisdictions as any seller or underwriter reasonably requests in
writing, considering the amount of Registrable Securities proposed to be
sold in each such jurisdiction, and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of
the Registrable Securities covered by the Registration Statement; PROVIDED
that the Company will not be required to qualify generally to do business
in any jurisdiction where it is not then so qualified or to take any action
that would subject it to general service of process in any such
jurisdiction where it is not then so subject;
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(ix) cooperate with the selling holders of Registrable
Securities and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends and to be in
such denominations and registered in such names as the managing
underwriters may request at least two business days prior to any sale of
Registrable Securities to the underwriters;
(x) use all commercially reasonable efforts to cause the
Registrable Securities covered by the applicable Registration Statement to
be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof or
the underwriters, if any, to consummate the disposition of such Registrable
Securities;
(xi) upon the occurrence of any event contemplated by
subsection (iii)(F) above, prepare a supplement or posteffective amendment
to the Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable
Securities, the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(xii) cause all Registrable Securities covered by any
Registration Statement to be listed on each securities exchange on which
similar securities issued by the Company are then listed, or cause such
Registrable Securities to be authorized for trading on the Nasdaq National
Market System if any similar securities issued by the Company are then so
authorized, if requested by the holders of a majority of such Registrable
Securities or the managing underwriters, if any;
(xiii) provide a CUSIP number for all Registrable Securities,
not later than the effective date of the applicable Registration Statement;
(xiv) enter into such agreements (including an underwriting
agreement) and take all such other actions in connection therewith in order
to expedite or facilitate the disposition of such Registrable Securities
and in such connection, whether or not an underwriting agreement is entered
into and whether or not the Registration is an underwritten Registration
(A) make such representations and warranties and indemnities to the
underwriters, if any, in form, substance and scope as are customarily made
by issuers to underwriters in primary underwritten offerings; (B) obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to
the managing underwriters, if any) addressed to the underwriters, if any,
covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such underwriters; (C) obtain "cold comfort" letters and
updates thereof from the Company's independent certified public accountants
addressed to the underwriters, if any, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort"
letters by underwriters in connection with primary underwritten offerings;
and (D) the Company shall deliver such documents and
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certificates as may be requested by the managing underwriters, if any, to
evidence compliance with subsection (iii)(F) above and with any customary
conditions contained in the underwriting agreement or other agreement
entered into by the Company. The above shall be done at each closing under
such underwriting or similar agreement or as and to the extent required
thereunder;
(xv) make available for inspection by a representative of any
underwriter participating in any disposition pursuant to such Registration,
and any attorney or accountant retained by the underwriter, all financial
and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such representative,
underwriter, attorney or accountant in connection with such Registration
Statement; PROVIDED that any records, information or documents that are
designated by the Company in writing as confidential shall be kept
confidential by such Persons unless disclosure of such records, information
or documents is required by court or administrative order or any regulatory
body having jurisdiction;
(xvi) otherwise use all commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission, and
make generally available to its security holders, earnings statements
satisfying the provisions of Section 11(a) of the Act, no later than 45
days after the end of any 12-month period (or 90 days, if such period is a
fiscal year) (A) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm or best efforts
underwritten offering, or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration Statement,
which statements shall cover said 12-month periods; and
(xvii) promptly prior to the filing of any document that is to
be incorporated by reference into any Registration Statement or Prospectus
(after initial filing of the Registration Statement), provide copies of
such document to the managing underwriters, if any, make the Company's
representatives available for discussion of such document and make such
changes in such document prior to the filing thereof as counsel for such
selling holders or underwriters may reasonably request.
The Company may require each seller of Registrable Securities as to
which any Registration is being effected to furnish to the Company such
information regarding the proposed distribution of such securities and the
proper name and address of such seller as the Company may from time to time
reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in subsection (iii)(F) of this
subsection (c), such holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Registration Statement until such
holder's receipt of copies of the supplemented or amended Prospectus as
contemplated by subsection (xi) of this subsection (c), or until it is advised
in writing (the "ADVICE") by the Company that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus, and, if so
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directed by the Company, such holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the time periods referred to in subsection (ii) of this
subsection (c) shall be extended by the number of days during the period from
and including the date of the giving of such notice to and including the date
when each seller of Registrable Securities covered by such Registration
Statement shall have received the copies of the supplemented or amended
prospectus contemplated by subsection (xi) of this subsection (c) or the Advice.
(d) RESTRICTIONS ON PUBLIC SALE.
(i) PUBLIC SALE BY HOLDERS OF REGISTRABLE SECURITIES. To the
extent not inconsistent with applicable law, the holders of Registrable
Securities, if requested by the managing underwriter or underwriters for
any registration statement filed by the Company, agrees not to effect any
public sale or distribution of Registrable Securities, including a sale
pursuant to Rule 144 (or any similar provision then in force) under the
Act, during the 180-day period (or such shorter period as may be applicable
to sales by the Company) beginning on, the effective date of such
registration statement and during the 30-business day period following
notice of such registration statement.
(ii) PUBLIC SALE BY THE COMPANY AND OTHERS. If requested by
the managing underwriter or underwriters for any underwritten Registration,
or by the holders of a majority of the Registrable Securities held by the
Persons whose securities are being registered in a Demand Registration that
is not being underwritten, (i) the Company will not effect any public sale
or distribution of equity securities for their own account (or securities
convertible into or exchangeable or exercisable for equity securities)
during the 180-day period (or such shorter period as may be agreed to by
such underwriters or holders) beginning on, the effective date of such
registration statement and during the 30-business day period following
notice of such registration statement, and (ii) the Company will assist the
underwriters to cause each other holder of equity securities (or securities
convertible into or exchangeable for, or options to purchase, equity
securities) purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to
effect any public sale or distribution of any such securities during such
period described in (A) above (except as part of such Registration, if
otherwise permitted).
(iii) OTHER REGISTRATIONS. If the Company has previously filed
a Registration Statement with respect to Registrable Securities, and if
such previous Registration has not been withdrawn or abandoned, the Company
will not file or cause to be effected any other registration of any of its
equity securities (or securities convertible into or exchangeable for, or
options to purchase, equity securities) under the Act (except on Form S-8
or any similar successor form), whether on its own behalf or at the request
of any holder or holders of equity securities (or securities convertible
into or exchangeable or exercisable for equity securities), until a period
of at least six months has elapsed from the effective date of such previous
Registration; PROVIDED, that if the Company and holders of 50% or more of
the aggregate number of Registrable Securities
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included in such previous Registration shall agree in writing, such period
may be shortened.
(e) REGISTRATION EXPENSES.
(i) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, including,
without limitation, all registration and filing fees, the fees and expenses
of the counsel and accountants for the Company (including the expenses of
any "cold comfort" letters and special audits required by or incident to
the performance of such persons), all other costs and expenses of the
Company incident to the preparation, printing and filing under the Act of
the Registration Statement (and all amendments and supplements thereto) and
furnishing copies thereof and of the Prospectus included therein, the costs
and expenses incurred by the Company in connection with the qualification
of the Registrable Securities under the state securities or "blue sky" laws
of various jurisdictions, the costs and expenses associated with filings
required to be made with the NASD (including, if applicable, the fees and
expenses of any "qualified independent underwriter" and its counsel as may
be required by the rules and regulations of the NASD), the costs and
expenses of listing the Registrable Securities for trading on a national
securities exchange or authorizing them for trading on the Nasdaq National
Market System and all other costs and expenses incurred by the Company in
connection with any Registration hereunder; PROVIDED, that, except as
otherwise provided in subsection (ii) below, the Company shall not bear the
costs and expenses of the holders of Registrable Securities for
underwriters' commissions, brokerage fees, transfer taxes, or the fees and
expenses of any counsel, accountants or other representative retained by
the holders of Registrable Securities.
(ii) Notwithstanding the foregoing and except as provided
below, in connection with each Registration hereunder, the Company will
reimburse holders of Registrable Securities being registered in any
Registration hereunder for the reasonable out-of-pocket expenses, including
the reasonable fees and disbursements of not more than one counsel, which
counsel shall be chosen by the majority in interest of the holders of
Registrable Securities requesting such registration.
(f) INDEMNIFICATION.
(i) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify, to the full extent permitted by law, the holder of Registrable
Securities and each of its respective officers, directors and agents and
each person who controls any of them (within the meaning of the Act and the
Exchange Act), against all losses, claims, damages, liabilities and
expenses caused by any untrue or alleged untrue statement of a material
fact contained in any Registration Statement, Prospectus or preliminary
Prospectus or any omission or alleged omission to state therein a material
fact necessary to make the statements therein (in the case of a Prospectus
or any preliminary Prospectus, in light of the circumstances under which
they were made) not misleading, except insofar as the same are caused by or
contained in any information with respect to the holder of Registrable
Securities furnished in writing to the Company by such holder of
Registrable Securities or its representative specifically for use therein.
The Company will also
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indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers and directors and each person who controls such persons (within
the meaning of the Act) to the same extent as provided above with respect
to the indemnification of the holders of Registrable Securities; PROVIDED,
HOWEVER, if pursuant to an underwritten public offering of Registrable
Securities, the Company and any underwriters enter into an underwriting or
purchase agreement relating to such offering that contains provisions
relating to indemnification and contribution between the Company and such
underwriters, such provisions shall be deemed to govern indemnification and
contribution as between the Company and such underwriters.
(ii) INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. In
connection with any registration in which the holders of Registrable
Securities is participating, the holders of Registrable Securities will
furnish to the Company in writing such information with respect to the
holders of Registrable Securities as the Company reasonably requests for
use in connection with any Registration Statement or Prospectus and agrees
to indemnify, to the full extent permitted by law, the Company, the
directors and officers of the Company signing the Registration Statement
and each person who controls the Company (within the meaning of the Act and
the Exchange Act) against any losses, claims, damages, liabilities and
expenses resulting from any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or
necessary to make the statements in the Registration Statement or
Prospectus or preliminary Prospectus (in the case of the Prospectus or any
preliminary Prospectus, in light of the circumstances under which they were
made) not misleading, to the extent, but only to the extent, that such
untrue statement or omission is contained in any information with respect
to such holder of Registrable Securities so furnished in writing by such
holders of Registrable Securities specifically for inclusion therein. In no
event shall the liability of any selling holder of Registrable Securities
hereunder be greater in amount than the dollar amount of the proceeds
received by such holder upon the sale of the Registrable Securities giving
rise to such indemnification obligation. The Company shall be entitled to
receive indemnities from underwriters, selling brokers, dealer managers and
similar securities industry professionals participating in the
distribution, to the same extent as provided above with respect to
information with respect to such persons or entities so furnished in
writing by such persons or entities or their representatives specifically
for inclusion in any Prospectus or Registration Statement.
(iii) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person or
entity entitled to indemnification hereunder will (A) give prompt written
notice to the indemnifying party after the receipt by the indemnified party
of a written notice of the commencement of any action, suit, proceeding or
investigation or threat thereof made in writing for which such indemnified
party will claim indemnification or contribution pursuant to this
Agreement; PROVIDED, HOWEVER, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of
its obligations under the preceding clauses (i) and (ii), except to the
extent that the indemnifying party is actually prejudiced by such failure
to give notice as determined by a final determination by a court of
competent jurisdiction and (B) unless in such indemnified party's
reasonable judgment a conflict of interest may exist between such
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indemnified and indemnifying parties with respect to such claim, permit
such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. Whether or not such
defense is assumed by the indemnifying party, the indemnifying party will
not be subject to any liability for any settlement made without its consent
(but such consent will not be unreasonably withheld). No indemnifying party
will be required to consent to the entry of any judgment or to enter into
any settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release
from all liability in respect of such claim or litigation. An indemnifying
party who is not entitled to, or elects not to, assume the defense of a
claim will not be obligated to pay the fees and expenses of more than one
counsel in any one jurisdiction 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, in which event the indemnifying party shall be
obligated to pay the fees and expenses of such additional counsel or
counsels.
(iv) CONTRIBUTION. If for any reason the indemnification
provided for in the preceding clauses (i) and (ii) is unavailable to an
indemnified party as contemplated by the preceding clauses (i) and (ii),
then the indemnifying party in lieu of indemnification shall contribute to
the amount paid or payable by the indemnified party as a result of such
loss, claim, damage, liability or expense in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnified party and the indemnifying party, but also the relative fault
of the indemnified party and the indemnifying party, as well as any other
relevant equitable considerations, PROVIDED that such holder of Registrable
Securities shall not be required to contribute in an amount greater than
the difference between the net proceeds received by such holder of
Registrable Securities with respect to the sale of any LLC Interests and
any successor securities and all amounts already contributed by such holder
of Registrable Securities with respect to such claims, including amounts
paid for any legal or other fees or expenses incurred by such holder of
Registrable Securities.
(g) RULE 144. The Company agrees that at all times after it has
filed a registration statement pursuant to the requirements of the Act relating
to any class of equity securities of the Company, it will file in a timely
manner all reports required to be filed by it pursuant to the Act and the
Exchange Act and will take such further action as any holder of Registrable
Securities may reasonably request in order that such holder may effect sales of
Shares pursuant to Rule 144. At any reasonable time and upon request of the
Investor, the Company will furnish the holders of Registrable Securities and
others with such information as may be necessary to enable the holders of
Registrable Securities to effect sales of securities pursuant to Rule 144 under
the Act and will deliver to the holders of Registrable Securities a written
statement as to whether it has complied with such requirements. Notwithstanding
the foregoing, the Company may deregister any class of its equity securities
under Section 12 of the Exchange Act or suspend its duty to file reports with
respect to any class of its securities pursuant to Section 15(d) of the Exchange
Act if it is then permitted to do so pursuant to the Exchange Act and the rules
and regulations thereunder.
22
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(h) PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No holder of
Registrable Securities may participate in any underwritten registration
hereunder unless the holder of Registrable Securities (i) agrees to sell its
Registrable Securities on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to select the underwriter pursuant to
Sections 7(a)(iii) and 7(b)(iv) above, and, subject to the provisions of Section
2, (ii) accurately completes in a timely manner and executes all questionnaires,
powers of attorney, underwriting agreements and other documents customarily
required under the terms of such underwriting arrangements.
(i) OTHER REGISTRATION RIGHTS. The Company will not grant to any
person (including the Investor) any demand or piggyback registration rights with
respect to the equity securities of the Company (or securities convertible into
or exchangeable for, or options to purchase, equity securities) other than
piggyback registration rights that are not inconsistent with the terms of this
Section 7. To the extent that the Company grants to any person registration
rights with respect to any securities of the Company having provisions more
favorable to the holders thereof than the provisions contained in this
Agreement, the Company will confer comparable rights to the holders of
Registrable Securities under this Agreement.
SECTION 8. LIMITATION ON COMPANY ACTIVITIES. At all times during the term
of this Agreement, the Company shall not (i) hold any material assets other than
(a) the equity interests of H&E Equipment Services and (b) books, records,
permits, licenses, qualifications and other similar corporate assets necessary
for the preservation of its corporate or limited liability company existence, or
(ii) incur any indebtedness for borrowed money unless the net proceeds of such
incurrence are concurrently contributed to the capital of, or used to purchase
equity interests in, H&E Equipment Services.
SECTION 9. NON-VOTING OBSERVER.
(a) GENERALLY. So long as TCW collectively owns at least $10.0
million in aggregate principal amount of the Notes they will be entitled to
designate one observer (a "NON-VOTING OBSERVER") selected by TCW to be present
at all meetings of the Board, all committees and subcommittees thereof, and the
board of directors or any other governing body (and all committees and
subcommittees thereof) of any existing or future, direct or indirect subsidiary
of the Company (collectively, the "GOVERNANCE MEETINGS"). Such observer shall be
notified of any Governance Meetings, including such meeting's time and place, in
the same manner as directors of the Company, and shall have the same access to
information concerning the business and operations of the Company or the
applicable subsidiary as the applicable Board members and on the same terms and
shall be entitled to participate in discussions and consult with, and make
proposals and furnish advice to, the Board, without any right to vote on any
matter brought before the Board whatsoever; PROVIDED, HOWEVER, that the Board or
similar managing body of the relevant subsidiary of the Company, as the case may
be, shall be under no obligation to take any action with respect to any
proposals made or advice furnished by any Non-Voting Observer, other than to
give due consideration thereto.
23
<Page>
(b) EXPENSES. All reasonable travel expenses incurred by a
Non-Voting Observer or a representative in order to attend any Governance
Meetings shall be reimbursed by the Company from time to time promptly on
demand.
(c) REPRESENTATIVE. In the event that, after receiving proper notice
of a Governance Meeting, any Non-Voting Observer determines that he or she is
unable to attend such meeting, TCW shall have the right to designate a
representative to attend and observe such meeting on behalf of such Non-Voting
Observer who shall be entitled to participate in the same manner as the
Non-Voting Observer set forth in Section 8(a) above.
SECTION 10. AMENDMENT AND WAIVER. No modification or amendment of any
provision of this Agreement shall be effective against the LLC Interests Holders
or the Company unless such modification or amendment is approved in writing by
(i) the Company, (ii) BRS Majority Holders and (iii) the holders of Registrable
Securities holding a majority of the Registrable Securities then outstanding;
and any amendment to which such written consent is obtained will be binding upon
the Company and each LLC Interests Holder. No waiver of any provision of this
Agreement shall be effective against any LLC Interests Holder unless such waiver
is approved in writing by such LLC Interests Holder. No waiver of any provision
of this Agreement shall be effective against the Company unless such waiver is
approved in writing by the Company. The failure of any party to enforce any of
the provisions of this Agreement shall in no way be construed as a waiver of
such provisions and shall not affect the right of such party thereafter to
enforce each and every provision of this Agreement in accordance with its terms.
Each LLC Interests Holder shall remain a party to this Agreement only so long as
such person is the holder of record of LLC Interests.
SECTION 11. ENTIRE AGREEMENT. Except as otherwise expressly set forth
herein, this document embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
SECTION 12. SUCCESSORS, ASSIGNS AND TRANSFEREES. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
legal representatives, heirs, legatees, successors and assigns including any
party to which any holder of Registrable Securities transferred or sold his or
its Registrable Securities. Each transferee of LLC Interests from a party hereto
or Permitted Transferee thereof shall take such LLC Interests subject to the
same restrictions and the same rights as existed in the hands of the transferor
except that Securities sold in a Public Offering shall no longer be subject to
any of the provisions of this Agreement.
SECTION 13. SPECIFIC PERFORMANCE, ETC. The Company and the LLC Interests
Holders, in addition to being entitled to exercise all rights provided herein,
in the Company's LLC Agreement or granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
24
<Page>
SECTION 14. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal law of the State of New York.
SECTION 15. INTERPRETATION. The headings of the sections contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not affect the meaning or interpretation of this
Agreement.
SECTION 16. NOTICES. All notices and other communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally or sent by registered or certified mail (return
receipt requested) postage prepaid to the parties at the following addresses (or
at such other address for any party as shall be specified by like notice,
PROVIDED that notices of a change of address shall be effective only upon
receipt thereof). Notices sent by mail shall be effective five days after
mailing.
(a) If to the Company, at:
H&E Holdings L.L.C.
11110 Mead Road, Second Floor
Baton Rouge, Louisiana 70816
Attention: Chief Executive Officer
Tel: (225) 298-5230
Fax: (225) 298-5382
With a copy, which shall not constitute notice, to:
Bruckmann, Rosser, Sherrill & Co., Inc.
126 East 56th Street, 29th Floor
New York, New York 10022
Attention: Bruce Bruckmann and Rice Edmonds
Tel: (212) 521-3700
Fax: (212) 521-3799
and
Kirkland & Ellis
153 East 53rd Street
New York, New York 10022
Attention: W. Brian Raftery, Esq.
Tel: (212) 446-4800
Fax: (212) 446-4900
and
25
<Page>
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.
(b) If to the holders of Registrable Securities Investor, at:
its address as shown in the
stock register of the Company
With a copy, which shall not constitute notice, to:
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Attention: Kirk A. Davenport, Esq.
Tel: (212) 906-1284
Fax: (212) 751-4864
SECTION 17. RECAPITALIZATIONS, EXCHANGE, ETC. AFFECTING THE COMPANY'S LLC
INTERESTS. The provisions of this Agreement shall apply, to the full extent set
forth herein with respect to the LLC Interests, to any and all equity interests
of the Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets, or otherwise) that may be issued in respect of,
in exchange for, or in substitution of the LLC Interests and shall be
appropriately adjusted for any stock dividends, splits, reverse splits,
combinations, recapitalizations and the like occurring after the date hereof.
SECTION 18. INSPECTION AND COMPLIANCE WITH LAW. Copies of this Agreement
will be available for inspection or copying by the holders of Registrable
Securities at the offices of the Company through the Secretary of the Company.
The Company shall take all reasonable action to insure that the provisions of
laws of the State of New York relating to agreements similar to this Agreement
are promptly complied with.
26
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SECTION 19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, by the original parties hereto and any successor in interest, each
of which shall be deemed to be an original and all of which together shall be
deemed to constitute one and the same agreement.
SECTION 20. TERMINATION. This Agreement will automatically terminate and be
of no further force or effect immediately after the consummation of an Approved
Company Sale.
SECTION 21. ATTORNEYS' FEES. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to any other available remedy.
SECTION 22. SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby.
SECTION 23. 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 ANY ANCILLARY AGREEMENT OR THE VALIDITY, PROTECTION,
INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF.
SECTION 24. VENUE; SUBMISSION TO JURISDICTION. ANY AND ALL SUITS, LEGAL
ACTIONS OR PROCEEDINGS ARISING OUT OF THIS AGREEMENT SHALL BE BROUGHT ONLY IN
THE SUPREME COURT OF THE STATE OF NEW YORK AND EACH PARTY TO THIS AGREEMENT
HEREBY SUBMITS TO AND ACCEPTS THE EXCLUSIVE JURISDICTION OF SUCH COURT FOR THE
PURPOSE OF SUCH SUITS, LEGAL ACTIONS OR PROCEEDINGS. IN ANY SUCH SUIT, LEGAL
ACTION OR PROCEEDING, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES THAT SERVICE
THEREOF MAY BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO HIM OR IT AT THE
ADDRESS AS PROVIDED IN SECTION 14 HEREOF. TO THE FULLEST EXTENT PERMITTED BY
LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH HE OR IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OR ANY SUCH SUIT, LEGAL ACTION
OR PROCEEDING IN SUCH COURT AND HEREBY FURTHER WAIVES ANY CLAIM THAT ANY SUIT,
LEGAL ACTION OR PROCEEDING BROUGHT IN SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
SECTION 25. 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,
27
<Page>
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.
SECTION 26. 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 or any duty hereunder shall
fall upon a Saturday, Sunday, or any date on which commercial banks in the State
of New York 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Investor
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
<Page>
IN WITNESS WHEREOF, the parties hereto have executed this Investor
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
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Jana Ernakovich
--------------------------------------------
Name: Jana Ernakovich
Title: Vice President
<Page>
SCHEDULE 1
LIST OF EQUITY SECURITIES AND HOLDERS THEREOF
<Table>
<Caption>
Series A Series B Series C Series D
Name and Member Preferred Units Preferred Units Preferred Units Preferred Units
- ------------------------------------------- --------------- --------------- --------------- ---------------
BRSEC Co-Investment, LLC 10,500.000 9,200.000 20,814.929 --
BRSEC Co-Investment II, LLC -- 10,882.282 42,484.581 17,200.000
John M. Engquist -- -- 3,500.000 15,714.251
Kristan Engquist Dunne -- 1,756.171 -- 822.000
Wheeler Investments, Inc. -- 1,600.000 3,578.750 10,390.000
Don Wheeler -- 3,800.000 8,556.142 --
Southern Nevada Capital Corporation -- 800.000 1,606.639 --
Bagley Family Investments, L.L.C. -- -- -- --
Kenneth Sharp, Jr. -- -- -- --
Siegfried Wallin -- -- -- --
The Connor Family Trust -- -- -- --
The McClain Family Revocable Trust -- -- -- --
C/J Land & Livestock L.P. -- -- -- --
John and Ellen Williams Limited Partnership -- -- -- --
Robert G. Williams Limited Partnership -- -- -- --
Credit Suisse First Boston Corporation 552.632 1,475.708 4,239.002 2,612.962
--------------- --------------- --------------- ---------------
Total 11,052.632 29,514.161 84,780.043 46,739.213
=============== =============== =============== ===============
<Caption>
Class A Class B
Name and Member Common Units Common Units
- ------------------------------------------- -------------- --------------
BRSEC Co-Investment, LLC 785,000.0000 --
BRSEC Co-Investment II, LLC 1,245,000.0000 --
John M. Engquist -- 1,170,300.0000
Kristan Engquist Dunne -- 74,700.0000
Wheeler Investments, Inc. -- 261,560.7810
Don Wheeler -- 2,174.9643
Southern Nevada Capital Corporation -- 164,325.5681
Bagley Family Investments, L.L.C. -- 85,813.7130
Kenneth Sharp, Jr. -- 44,561.5525
Siegfried Wallin -- 28,955.9663
The Connor Family Trust -- 24,235.9744
The McClain Family Revocable Trust -- 16,474.0928
C/J Land & Livestock L.P. -- 32,299.1292
John and Ellen Williams Limited Partnership -- 32,299.1292
Robert G. Williams Limited Partnership -- 32,299.1292
Credit Suisse First Boston Corporation 106,842.105 103,684.211
-------------- --------------
Total 2,136,842.105 2,073,684.211
============== ==============
</Table>
<Page>
EXHIBIT A
FORM OF JOINDER TO
INVESTOR RIGHTS AGREEMENT
THIS JOINDER to the Investor Rights Agreement, dated as of June __,
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 certain [SERIES A/B/C/D PREFERRED
UNITS/CLASS [A/B] COMMON UNITS] from _____________ and the Agreement and/or the
Company require Holder, as a holder of such [SERIES A/B/C/D PREFERRED
UNITS/CLASS [A/B] COMMON UNITS], to become a party to the Agreement, and Holder
agrees to do so in accordance with the terms hereof.
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:
(A) AGREEMENT TO BE BOUND. Holder hereby 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 and shall be deemed a [BRS INVESTOR/INVESTOR/MANAGEMENT
INVESTOR/OTHER INVESTOR] and an LLC Interests Holder for all purposes
thereof. In addition, Holder hereby agrees that all Preferred Units
and all Common Units held by Holder shall be deemed LLC Interests for
all purposes of the Agreement.
(B) 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 LLC Interests Holder and the respective
successors, heirs and assigns of each of them, so long as they hold
any LLC Interests.
(C) 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.
(D) NOTICES. For purposes of Section 14 of the Agreement,
all notices, demands or other communications to the Holder shall be
directed to:
[NAME]
[ADDRESS]
<Page>
(E) GOVERNING LAW. This Joinder shall be governed by and
construed in accordance with the laws of the State of New York,
without giving effect to any rules, principles or provisions of choice
of law or conflict of laws.
(F) 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 Investor 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: