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Exhibit 10.15
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of January 6, 1997 (this
"Agreement"), is made by and among National Equipment Services, Inc., a
Delaware corporation (the "Company"), Industrial Crane Maintenance Systems,
Inc., a Texas corporation (the "Purchaser"), and Golder, Thoma, Xxxxxxx, Xxxxxx
Fund V, L.P., a Delaware limited partnership ("Fund V"), Xxxxx Xxxxxxx
("Xxxxxxx"), Xxxxxx X'Xxxxxx ("X'Xxxxxx") and Xxxx Xxxxxxxxx ("Xxxxxxxxx," and
together with Fund V, Xxxxxxx and X'Xxxxxx referred to herein as the "Existing
Stockholders"). Except as otherwise indicated, capitalized terms used herein
are defined in Section 6 hereof.
WHEREAS, pursuant to an Asset Purchase Agreement, dated as of January 6,
1997 (the "Acquisition Agreement"), by and among the Company, the Purchaser
and others, the Company will purchase certain of the assets and assume certain
of the liabilities of the Purchaser (the "Acquisition").
WHEREAS, the purchase and sale of stock contemplated by this Agreement
will be consummated contemporaneously with the consummation of the Acquisition
pursuant to the terms of the Acquisition Agreement.
The parties hereto agree as follows:
1. Authorization of Stock. The Company will authorize the issuance and
sale to the Purchaser of 97 shares of the Company's Class A Common Stock, par
value $.01 per share (the "Class A Common Stock") at a purchase price of
$1000.00 per share, and 300 shares of the Company's Class B Common Stock, par
value $.01 per share (the "Class B Common Stock") at a purchase price of $10.00
per share, each having the rights described in the Company's Certificate of
Incorporation (as amended, the "Certificate of Incorporation"). The shares of
Class A Common Stock and Class B Common Stock being purchased by the Purchaser
hereunder are collectively referred to herein as the "Shares."
2. Purchase and Sale of Shares.
(a) Purchase and Sale. The Company will sell to the Purchaser, and, on
the terms and subject to the conditions set forth herein, the Purchaser will
purchase from the Company, the Shares, at the purchase price per Share as set
forth in Section 1 above.
(b) The Closing. The Closing of the sale and purchase of the Shares (the
"Closing") will take place at the offices of Xxxxxxxx & Xxxxx, 000 Xxxx
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000. At the Closing, the Company will
deliver to the Purchaser certificates evidencing the number of Shares to be
purchased by the Purchaser, issued in the name of the Purchaser, upon
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payment of the purchase price therefor by wire transfer of immediately
available funds to the bank account designated by the Company.
3. Restrictions on Transfers.
(a) Restrictions. Subject to the Stockholders Agreement, Restricted
Securities are transferable pursuant to (i) public offerings registered under
the Securities Act, (ii) Rule 144 or Rule 144A of the Securities and Exchange
Commission (or any similar rule then in force) if such rule is available, and
(iii) subject to the conditions specified in Section 3(b) below, any other
legally available means of transfer pursuant to the Securities Act.
(b) Procedure for Transfer. In connection with the transfer of any
Restricted Securities (other than a transfer referred to in Section 3(a)(i)
above), the holder thereof will deliver written notice to the Company
describing in reasonable detail the transfer or proposed transfer, together
with an opinion of counsel (unless waived by the Company) which (to the
Company's reasonable satisfaction) is knowledgeable in securities law matters
to the effect that such transfer of Restricted Securities may be effected
without registration of such Restricted Securities under the Securities Act.
In addition, if the holder of such Restricted Securities delivers to the
Company an opinion of such counsel that no subsequent transfer of such
Restricted Securities will require registration under the Securities Act, the
Company will promptly upon such contemplated transfer deliver new certificates
for such Restricted Securities which do not bear the Securities Act Legend set
forth in Section 5(a) below. If the Company is not required to deliver new
certificates for such Restricted Securities not bearing such legend, the holder
thereof will not transfer the same until the prospective transferee has
confirmed to the Company in writing its agreement to be bound by the conditions
contained in this Section and Section 5(a).
(c) Transferees. Upon request of the Purchaser, the Company shall
promptly supply to the Purchaser or its prospective transferees all information
regarding the Company required to be delivered in connection with a transfer
pursuant to Rule 144A of the Securities and Exchange Commission.
4. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchaser that as of the Closing:
(a) Organization, etc. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
The Company has all requisite corporate power and authority to carry on its
businesses as now conducted and presently proposed to be conducted and to carry
out the transactions contemplated by this Agreement.
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(b) Capital Stock and Related Matters.
(i) As of the Closing hereunder, (a) the authorized capital stock of
the Company will consist of 25,000 shares of Class A Common Stock and
150,000 shares of Class B Common Stock, and (b) the Company will have
issued, and there will be outstanding 1,647 shares of Class A Common Stock
and 86,300 shares of Class B Common Stock.
(ii) As of the Closing hereunder, the Company will not have
outstanding, nor will it have entered into any contract or agreement
(other than this Agreement) to issue, any stock or securities convertible
or exchangeable for any shares of its capital stock, nor will it have
outstanding, nor will it have entered into any contract or agreement
(other than this Agreement) to issue, any rights or options to subscribe
for or to purchase any capital stock or any stock or securities
convertible into or exchangeable or exercisable for any capital stock,
except (i) pursuant to the Senior Management Agreements and (ii) pursuant
to the Purchase Agreement. As of the Closing, all of the outstanding
shares of the Company's capital stock will have been duly authorized, and
upon payment therefor will be validly issued and will be fully paid and
nonassessable.
(c) Authorization; No Breach. The execution, delivery and performance of
this Agreement has been duly authorized by the Company. This Agreement
constitutes a valid and binding obligation of the Company enforceable in
accordance with its terms, subject to the availability of equitable remedies
and to the laws of bankruptcy and other similar laws affecting creditors'
rights generally. The execution and delivery by the Company of this Agreement
and the offering, sale and issuance of the Shares hereunder, do not and will
not (i) conflict with or result in a breach of the terms, conditions or
provisions of, (ii) constitute a default under, (iii) result in the creation of
any lien, security interest, charge or encumbrance upon the Company's capital
stock or assets pursuant to, (iv) give any third party the right to accelerate
any obligation under, (v) result in a violation of, or (vi) require any
authorization, consent, approval, exemption or other action by or notice to any
court or administrative or governmental body (other than in connection with
certain state and federal securities laws) pursuant to, the Certificate of
Incorporation or the Company's bylaws, or any law, statute, rule, regulation,
instrument, order, judgment or decree to which the Company is subject or any
agreement or instrument to which the Company is a party.
5. Purchaser's Representations and Warranties
(a) Purchaser's Investment Representations. The Purchaser hereby
represents that it is acquiring the Restricted Securities purchased hereunder
or acquired pursuant hereto for its own account with the present intention of
holding such securities for investment purposes and that it has no intention of
selling such securities in a public distribution in violation of the federal
securities laws or any applicable state securities laws; provided that nothing
contained herein will prevent the Purchaser and the subsequent holders of
Restricted Securities from transferring such securities in compliance with the
provisions of Section 3 hereof and in compliance with the provisions of the
Stockholders Agreement. Each certificate for such Restricted Securities will
be imprinted with a legend in substantially the following form (the "Securities
Act Legend"):
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON
_______________, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). THE TRANSFER OF SUCH SECURITIES IS SUBJECT
TO THE CONDITIONS SET FORTH AND OTHERWISE REFERENCED IN THE STOCK PURCHASE
AGREEMENT, DATED AS OF JANUARY 6, 1997, BY AND AMONG THE ISSUER (THE
"COMPANY") AND CERTAIN INVESTORS, AND THE COMPANY RESERVES THE RIGHT TO
REFUSE TO TRANSFER SUCH SECURITIES UNTIL SUCH CONDITIONS HAVE BEEN
FULFILLED WITH RESPECT TO SUCH TRANSFER. UPON WRITTEN REQUEST, A COPY OF
SUCH CONDITIONS WILL BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF
WITHOUT CHARGE."
Whenever any Shares cease to be Restricted Securities and are not otherwise
restricted securities, the holder thereof will be entitled to receive from the
Company, without expense, upon surrender to the Company of the certificate
representing such Shares, a new certificate representing such Shares of like
tenor but not bearing a legend of the character set forth above.
(b) Other Representations and Warranties of the Purchaser. The Purchaser
hereby represents and warrants to and covenants and agrees with, the Company
that:
(i) the Purchaser has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the securities
purchased hereunder and has had full access to such other information
concerning the Company as the Purchaser may have requested and that in
making its decision to invest in the securities being purchased hereunder
it is not in any way relying on the fact that any other Person has decided
to invest in the securities;
(ii) the Purchaser (a) is an "accredited investor" as defined in
Rule 501(a) under the Securities Act or (b) by reason of its business and
financial experience, and the business and financial experience of those
retained by it to advise it with respect to its investment in the
securities being purchased hereunder, it, together with such advisors, has
such knowledge, sophistication and experience in business and financial
matters so as to be capable of evaluating the merits and risks of its
prospective investment in such securities, is able to bear the economic
risk of such investment and, at the present time, is able to afford a
complete loss of such investment; and
(iii) (A) the Purchaser has the requisite power and authority to
purchase the securities to be purchased by it hereunder and has authorized
the purchase of such securities and (B) the purchase of the securities to
be purchased by it hereunder does not violate its charter, by-laws or
other organizational documents.
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6. Definitions.
"Fair Market Value" of each Share means the value agreed upon by the
holder thereof and the Board; provided that if the holder thereof and the Board
are unable to agree upon such value, then the holder thereof and the Company
will share the cost, on an equal basis, of a mutually acceptable business
appraiser whose determination will be binding.
"Person" means an individual, a partnership, a limited liability company,
a joint venture, a corporation, a trust, an unincorporated organization and a
government or any department or agency thereof.
"Public Offering" means the sale in an underwritten public offering
registered under the Securities Act of 1933, as amended from time to time, of
shares of the Company's capital stock approved by the Board.
"Purchase Agreement" means that certain Purchase Agreement, dated as of
June 4, 1996, between the Company and Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV,
L.P., an Illinois limited partnership, as the same may be amended or amended
and restated from time to time.
"Registration Agreement" means that certain Registration Agreement, dated
as of June 4, 1996, among the Company and others, as the same may be amended or
amended and restated from time to time.
"Restricted Securities" means the Shares issued hereunder and any
securities issued with respect to the Shares by way of a dividend or split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. Restricted Securities will continue as
such in the hands of any transferee; provided that, as to any particular
Restricted Securities, such securities will cease to be Restricted Securities
when they have (a) been effectively registered under the Securities Act and
disposed of in accordance with the registration statement covering them, (b)
become eligible for sale pursuant to Rule 144 or Rule 144A of the Securities
and Exchange Commission (or any similar rule then in force) and disposed of in
accordance therewith or (c) been otherwise transferred and new securities for
them not bearing the Securities Act Legend set forth in Section 5(a) have been
delivered by the Company in accordance with Section 3(b). Whenever any
particular securities cease to be Restricted Securities, the holder thereof
will be entitled to receive from the Company, without expense, new securities
of like tenor not bearing a Securities Act Legend of the character set forth in
Section 5(a).
"Rule 144" means Rule 144 promulgated by the Securities and Exchange
Commission under the Securities Act as such rule may be amended from time to
time, or any similar rule then in force.
"Rule 144A" means Rule 144A promulgated by the Securities and Exchange
Commission under the Securities Act as such rule may be amended from time to
time, or any similar rule then in force.
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"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Securities and Exchange Commission" includes any governmental body or
agency succeeding to the functions thereof.
"Senior Management Agreements" means those certain Senior Management
Agreements, whether in existence as of the date hereof or entered into at a
later date, between the Company and each of the executive officers of the
Company who own any capital stock of the Company.
"Stockholders Agreement" means that certain Stockholders Agreement, dated
as of June 4, 1996, among the Company and others, as the same may be amended or
amended and restated from time to time.
7. Miscellaneous.
(a) Joinder. The Company, the Purchaser and the Existing Stockholders
hereby agree that the Stockholders Agreement and the Registration Agreement are
hereby amended by adding the Purchaser as a party thereto and as a Stockholder
under the Stockholders Agreement. The Purchaser hereby agrees to be subject to
all of the rights and obligations and to be bound by all of the terms and
conditions set forth in the Stockholders Agreement and the Registration
Agreement to the same extent as if the Purchaser were originally a party
thereto. The Company and the Existing Stockholders hereby waive any and all
requirements and/or breaches arising under the Stockholders Agreement, the
Registration Agreement and any agreements mentioned therein resulting from the
consummation of the transactions contemplated herein.
(b) Repurchase of Shares.
(i) In the event Xxxxx X. Xxxxxxx, the holder of 50% of the issued
and outstanding capital stock of the Purchaser, ceases to be employed by
the Company or its subsidiaries for any reason (the "Termination"), the
Shares (whether held by the Purchaser or one or more of the Purchaser's
transferees, other than the Company, Fund V or an affiliate of the Company
or Fund V) will be subject to repurchase by the Company and Fund V
pursuant to the terms and conditions set forth in this Section 7(b) (the
"Repurchase Option").
(ii) In the event of Termination, the purchase price for each Share
will be the Fair Market Value for such share.
(iii) The Company's board of directors (the "Board") may elect to
purchase all or any portion of the Shares by delivering written notice
(the "Repurchase Notice") to the holder or holders of the Shares within 90
days after the Termination. The Repurchase Notice
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will set forth the number of Shares to be acquired from each holder, the
aggregate consideration to be paid for such shares and the time and place
for the closing of the transaction.
(iv) If for any reason the Company does not elect to purchase all of
the Shares pursuant to the Repurchase Option, Fund V shall be entitled to
exercise the Repurchase Option for the Shares the Company has not elected
to purchase (the "Available Shares"). As soon as practicable after the
Company has determined that there will be Available Shares, but in any
event within 45 days after the Termination, the Company shall give written
notice (the "Option Notice") to Fund V setting forth the number of
Available Shares and the purchase price for the Available Shares. Fund V
may elect to purchase any or all of the Available Shares by giving written
notice to the Company within one month after the Option Notice has been
given by the Company. As soon as practicable, and in any event within ten
days after the expiration of the one-month period set forth above, the
Company shall notify each holder of Shares as to the number of Shares
being purchased from such holder by Fund V (the "Supplemental Repurchase
Notice"). At the time the Company delivers the Supplemental Repurchase
Notice to the holder(s) of Shares, the Company shall also deliver written
notice to Fund V setting forth the number of shares Fund V is entitled to
purchase, the aggregate purchase price and the time and place of the
closing of the transaction.
(v) The closing of the purchase of the Shares pursuant to the
Repurchase Option shall take place on the date designated by the Company
in the Repurchase Notice or Supplemental Repurchase Notice, which date
shall not be more than one month nor less than five days after the
delivery of the later of either such notice to be delivered. The Company
and/or Fund V will pay for the Shares to be purchased pursuant to the
Repurchase Option by delivery of a check or wire transfer of funds in the
aggregate amount of the purchase price for such shares. In addition, the
Company may pay the purchase price for such shares by offsetting amounts
outstanding under any bona fide debts owed by the Purchaser to the
Company. The Company and Fund V will be entitled to receive
representations and warranties from the sellers as to their title to the
Shares being sold and to require all sellers' signatures be guaranteed.
(vi) The right of the Company and the Investor to repurchase Shares
pursuant to this Section 7(b) shall terminate upon the occurrence of a
Public Offering.
(c) Remedies. The holders of Shares acquired hereunder (directly or
indirectly) will have all of the rights and remedies set forth in this
Agreement, the Certificate of Incorporation, and all of the rights and remedies
which such holders have been granted at any time under any other agreement or
contract, and all of the rights and remedies which such holders have under any
law. Any Person having any rights under any provision of this Agreement will
be entitled to enforce such rights specifically, to recover damages by reason
of any breach of any provision of this Agreement, and to exercise all other
rights granted by law.
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(d) Amendments and Waivers. Except as otherwise provided herein, no
modification, amendment or waiver of any provision hereof will be effective
against the Company or the Purchaser unless such modification, amendment or
waiver is approved in writing by each of the Company and the Purchaser. The
failure of any party to enforce any provision of this Agreement or under any
agreement contemplated hereby or under the Certificate of Incorporation or the
Company's bylaws will in no way be construed as a waiver of such provisions and
will not affect the right of such party thereafter to enforce each and every
provision of this Agreement, any agreement referred to herein, the Certificate
of Incorporation, or the Company's bylaws in accordance with their terms.
(e) Survival of Representations and Warranties. All representations and
warranties contained herein or made in writing by any party in connection
herewith will survive the execution and delivery of this Agreement, regardless
of any investigation made by the Company or the Purchaser or on any of their
behalves.
(f) Successors and Assigns.
(i) Except as otherwise expressly provided herein, all covenants and
agreements contained in this Agreement by or on behalf of any of the
parties hereto will bind and inure to the benefit of the respective
successors and assigns of such parties whether so expressed or not. In
addition, and whether or not any express assignment has been made, the
provisions of this Agreement which are for the Purchaser's benefit as the
purchaser or holder of Shares, as the case may be, are also for the
benefit of and enforceable by any subsequent holder of the Purchaser's
Shares.
(ii) If a sale, transfer, assignment or other disposition of any
Shares is made in accordance with the provisions of this Agreement to any
Person and such securities remain Restricted Securities immediately after
such disposition, such Person shall, at or prior to the time such
securities are acquired, execute a counterpart of this Agreement with such
modifications thereto as may be necessary to reflect such acquisition, and
such other documents as are necessary to confirm such Person's agreement
to become a party to, and to be bound by, all covenants, terms and
conditions of this Agreement, the Stockholders Agreement and the
Registration Agreement, each as theretofore amended.
(g) Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable under any applicable law or rule in any jurisdiction,
such provision will be ineffective only to the extent of such invalidity,
illegality or unenforceability in such jurisdiction, without invalidating the
remainder of this Agreement in such jurisdiction or any provision hereof in any
other jurisdiction.
(h) Counterparts. This Agreement may be executed simultaneously in
separate counterparts, any one of which need not contain the signatures of more
than one party, but all such
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counterparts taken together will constitute one and the same Agreement.
(i) Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(j) Governing Law. The corporate laws of the State of Delaware will
govern all questions concerning the relative rights of the Company and its
securityholders. All other questions concerning the construction, validity and
interpretation of this Agreement will be governed by and construed in
accordance with the domestic laws of the State of Illinois, without giving
effect to any choice of law or conflict of law provision or rule (whether of
the State of Illinois or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Illinois.
(k) Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when personally delivered or
received by certified mail, return receipt requested, or sent by guaranteed
overnight courier service. Notices, demands and communications will be sent to
parties hereto at the addresses indicated below:
Notices to the Company:
National Equipment Services, Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
With a copy to:
Xxxxxxxx and Xxxxx
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Perl
Notices to the Purchaser:
Industrial Crane Maintenance Systems, Inc.
c/o ES&L Service
00 Xxxxxx Xxx
Xxxx Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxxx
or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending party.
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* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase
Agreement on the day and year first above written.
NATIONAL EQUIPMENT SERVICES, INC.
By: /s/ Xxxxx Xxxxxxx
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Its: President
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INDUSTRIAL CRANE MAINTENANCE SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Its:
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GOLDER, THOMA, XXXXXXX, XXXXXX FUND V, L.P.
By: GTCR V, L.P.
Its: General Partner
By: Golder, Thoma, Cressey, Rauner, Inc.
Its: General Partner
By: Xxxx X. Xxxxx
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Its: Principal
/s/ Xxxxx Xxxxxxx
--------------------------------
XXXXX XXXXXXX
/s/ Xxxxxx X'Xxxxxx
--------------------------------
XXXXXX X'XXXXXX
/s/ Xxxx X. Xxxxxxxxx
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XXXX XXXXXXXXX
