EXHIBIT 10.43
AMENDMENT NO. 1 TO AGREEMENT
AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this "Amendment")
is dated as of November 14, 2000 and is by and among Hanover Compressor
Company, a Delaware corporation ("Parent"), Caddo Acquisition Corporation,
an Oklahoma corporation and a direct, wholly owned subsidiary of Parent
("Merger Sub"), and OEC Compression Corporation, an Oklahoma corporation (the
"Company"). Terms used and not defined herein shall have the meanings assigned
to them in the Agreement and Plan of Merger dated as of July 13, 2000 by and
among the Parent, Merger Sub and the Company (the "Merger Agreement").
RECITALS:
A. Parent, Merger Sub and the Company entered into the Merger Agreement
as of July 13, 2000; and
B. Parent, Merger Sub and the Company desire to amend the Merger Agreement
as set forth in this Amendment.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby,
Parent, Merger Sub and the Company hereby agree as follows:
1. The second sentence of Section 3.2 of the Merger Agreement is amended
to read in its entirety as follows: "As of the date hereof, (i) 37,060,776
shares of Company Common Stock are issued and outstanding, all of which are
validly issued, fully paid and nonassessable, (ii) 320,445 shares of Company
Common Stock are held in the treasury of the Company or by Subsidiaries of the
Company, and (iii) no shares of Company Preferred Stock are issued and
outstanding."
2. Sections 5.11 and 6.3(g) of the Merger Agreement are deleted in their
entirety. Parent and Merger Sub hereby waive any rights they may have as a
result of the breach or non-fulfillment of the requirements of such Sections
prior to the date of this Amendment.
3. Section 6.3(d) of the Merger Agreement is amended to read in its
entirety as follows:
(d) Absence of Certain Changes or Events. Since the date of this
Agreement there shall not have been any event, development or change of
circumstance that constitutes, has had, or, individually or in the
aggregate, could be expected to have a Company Material Adverse Effect.
Solely for purposes of this Section 6.3(d), a Company Material Adverse
Effect shall have been deemed to occur only if it results from: (i)
natural disasters or acts of God; (ii) war, terrorism or civil strife;
(iii) criminal acts or civil fraud; or (iv) willful misconduct of the
Company's officers.
4. Section 7.1(b) of the Merger Agreement is amended to read in its
entirety as follows:
(b) by either Parent or the Company if the Merger shall not have
been consummated by March 1, 2001 (the "Outside Date"), provided that
the right to terminate this Agreement under this Section 7.1(b) shall not
be available to any party whose failure to fulfill any obligation under
this Agreement has been the cause of or resulted in the failure of the
Merger to occur on or before such date); or
5. The following is added as the last sentence of Section 8.3 of the
Merger Agreement: "Knowledge" or "to the knowledge of" Parent or Merger Sub
means the actual knowledge of Xxxxxxx X. XxXxxx, Xxxxxxx X. Xxxxxxxx and
Xxxxxxx X. Xxxxx.
6. As of the date of this Amendment, to the knowledge of Parent and
Merger Sub, there has not been any event, development or change of circumstance
that constitutes, has had, or, individually or in the aggregate, could be
expected to have a Company Material Adverse Effect (as such term is used in
Section 6.3(d) of the Merger Agreement, as amended by this Amendment).
7. As of the date of this Agreement, to the knowledge of Parent and
Merger Sub, the Company has not breached any of the representations and
warranties contained in Article III of the Merger Agreement.
8. The Merger Agreement, as amended by this Amendment, and all documents
and instruments referred to in the Merger Agreement (a) constitute the entire
agreement and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof, and (b)
except as provided in Section 5.12 of the Merger Agreement, are not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder; provided that the Confidentiality Agreements shall remain in full
force and effect until the Effective Time.
9. The laws of the State of Oklahoma shall govern the interpretation,
validity and performance of the terms of this Amendment, regardless of the law
that might be applied under principles of conflicts of law.
10. This Amendment may be executed in two or more counterparts, all of
which shall be considered one and the same agreement and shall become effective
when two or more counterparts have been sighed by each of the parties and
delivered to the other parties, it being understood that all parties need not
sign the same counterpart.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment
or caused this Amendment to be duly executed on its behalf by its officer
thereunto duly authorized, as of the day and year first above written.
HANOVER COMPRESSOR COMPANY
a Delaware corporation
By: /s/ Xxxxxxx X. XxXxxx
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Name: Xxxxxxx X. XxXxxx
Title: Chief Executive Officer
CADDO ACQUISITION CORPORATION
an Oklahoma corporation
By: /s/ Xxxxxxx X. XxXxxx
------------------------------
Name: Xxxxxxx X. XxXxxx
Title: Chief Executive Officer
OEC COMPRESSION CORPORATION
an Oklahoma corporation
By:
------------------------------
Name:
-----------------------------
Title:
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IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment
or caused this Amendment to be duly executed on its behalf by its officer
thereunto duly authorized, as of the day and year first above written.
HANOVER COMPRESSOR COMPANY
a Delaware corporation
By:
------------------------------
Name: Xxxxxxx X. XxXxxx
Title: Chief Executive Officer
CADDO ACQUISITION CORPORATION
an Oklahoma corporation
By:
------------------------------
Name: Xxxxxxx X. XxXxxx
Title: Chief Executive Officer
OEC COMPRESSION CORPORATION
an Oklahoma corporation
By: /s/ Xxx Xxxxx
------------------------------
Name: Xxx Xxxxx
-----------------------------
Title:
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