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EXHIBIT 4.1
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Third Amended and Restated Registration Rights Agreement (the
"Agreement"), dated as of December 5, 1995, by and between Hanover Compressor
Company, a Delaware corporation (the "Company"), and the Persons named in
Schedule I hereto who execute counterparts of this Agreement.
R E C I T A L S:
A. The original parties to this Agreement, other than Astra
Resources, Inc. ("Astra"), are parties to that certain Second
Amended and Restated Registration Rights Agreement, dated as of
August 7, 1995 (the "Second Amended and Restated Agreement").
B. Pursuant to that certain Merger Agreement, dated as of the date
hereof (the "Merger Agreement") between the Company, Hanover Acquisition Corp.,
Astra and Astra Resources Compression, Inc., the Company is to issue to Astra
(i) 30,555.56 shares of the Company's common stock, par value $.001 per share
(the "Common Stock"). The execution of this Agreement is a condition to the
closing under the Merger Agreement.
C. In order to induce Astra to enter into and perform its obligations
under the Merger Agreement, the Company has agreed to provide Astra with
certain registration rights which may be deemed to be more favorable than the
registration rights granted to the parties to the Second Amended and Restated
Agreement.
D. The Second Amended and Restated Agreement requires the Company to
grant to the parties thereto any superior or more favorable registration rights
which the Company grants to any other Person.
E. All of the parties to the Second Amended and Restated Agreement and
Astra agree that it is in their mutual best interest to amend and restate the
Second Amended and Restated Agreement in its entirety to provide identical
registration rights to all of the stockholders of the Company entitled thereto.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized terms
shall have the following meanings:
"Common Stock" has the meaning set forth in the Recitals.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar or successor federal statute and the rules and
regulations of the SEC promulgated thereunder, all as the same shall be in
effect at the time.
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"Holder" means any Person named in Schedule I hereto who
executes a counterpart of this Agreement and any Person who becomes a Holder
after the date of this Agreement pursuant to Paragraph 10(a).
"Indemnified Party" has the meaning set forth in
Paragraph 7(c).
"Indemnifying Party" has the meaning set forth in
Paragraph 7(c).
"NASD" means the National Association of Securities
Dealers, Inc.
"Person" means an individual, partnership, corporation,
limited liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof, or any other entity of
any kind.
"Registered Securities" means Registrable Securities which
have been registered under the Securities Act pursuant to a registration
statement filed with and declared effective by the SEC.
"Registrable Securities" means (i) the Shares; (ii) the
shares of Common Stock and other securities into which the Shares are
convertible from time to time; (iii) the shares of Common Stock issued or
issuable as dividends on, or other distributions with respect to, the Shares;
and (iv) any other security issued or issuable in exchange for, or in
replacement of, any of the Shares, in each case until any such security ceases
to be a Registrable Security in accordance with Paragraph 2(a) hereof.
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with Paragraphs 3 and 4 of this
Agreement, including without limitation all registration and filing fees,
including fees with respect to filings required to be made with any stock
exchange or the NASD, fees and expenses of compliance with state securities or
blue sky laws (including reasonable fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities),
messenger, telephone and delivery expenses, and the fees and expenses of
counsel for the underwriter and the reasonable fees and expenses of one counsel
for the Selling Holders, costs of printing prospectuses, and fees and
disbursements of counsel for the Company and of all independent certified
public accountants of the Company (including the expenses of any special audit
and "cold comfort" letters required by or incident to such performance).
"Registration Statement" means any registration statement of
the Company which includes any of the Registrable Securities pursuant to the
provisions of this Agreement, including the
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prospectus included or deemed included in the Registration Statement and all
amendments and supplements to the Registration Statement or the prospectus,
including post-effective amendments, and all exhibits to, and all materials
incorporated by reference in, the Registration Statement.
"SEC" means the United States Securities and Exchange
Commission or any similar agency then having the authority to enforce the
Exchange Act or the Securities Act.
"Securities Act" means the Securities Act of 1933, as
amended, or any similar or successor statute, and the rules and regulations of
the SEC promulgated thereunder, all as the same shall be in effect at the time.
"Selling Expenses" means all fees and expenses of
underwriters including discounts, commissions or fees of underwriters, selling
brokers, dealer managers or similar securities industry professionals relating
to the distribution of the Registrable Securities.
"Selling Holders" has the meaning set forth in Paragraph
5(b).
"Shares" means the shares of Common Stock of the Company
owned by the Holders (including, without limitation, the shares of Common Stock
issued or issuable upon conversion of the Series B Preferred Stock) and any
shares hereafter acquired.
"Stockholder" means any holder of equity securities
issued by the Company.
"Stockholders Agreements" means (i) that certain Stockholders
Agreement, dated as of January 26, 1995 among the Company and the Stockholders
of the Company parties thereto, (ii) that certain Supplemental Stockholders
Agreement, dated as of March , 1995 among the Company and the Stockholders of
the Company parties thereto, (iii) that certain Stockholders Agreement dated as
of among the Company, Joint Energy Development Investments Limited Partnership
and other Stockholders of the Company parties thereto and (iv) that certain
stockholders Agreement dated as of the date hereof among the Company, Astra and
other Stockholders of the Company parties thereto.
2. Securities Subject to this Agreement.
(a) Registrable Securities. The securities entitled to the
benefits of this Agreement are the Registrable Securities, but such benefits
shall continue with respect to each such security only so long as such security
continues to be a Registrable Security. A security ceases to be a Registrable
Security when (i) a Registration Statement covering the sale of such
Registrable
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Security has been declared effective under the Securities Act and the
Registrable Security has been sold in accordance with the Registration
Statement; (ii) it is distributed to the public pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act; (iii) a new
certificate representing such security has been delivered (to the original
Holder or any subsequent transferee) by the Company free from any restrictive
legend and without issuance of stop transfer or other instructions to the
Company's transfer agent and the Holder of such security has been advised by
counsel acceptable to it that subsequent disposition of such security will not
require registration or qualification under the Securities Act or any state
"blue sky" or similar law then in effect; or (iv) the security has ceased to be
outstanding.
(b) Holders of Registrable Securities. This Agreement is for
the benefit of any person owning or having the right to acquire Registrable
Securities, irrespective of whether such person is a signatory to this
Agreement, provided the Registrable Securities were not acquired by such person
in a transaction which violated any of the restrictions on transfer contained
in the Stockholders Agreement to which such Registrable Securities may be
subject.
3. Registration under the Securities Act: Piggy-Back
Registration.
(a) Piggy-Back Registration. If (but without any obligation
to do so) the Company proposes to register (including for this purpose a
registration effected by the Company for stockholders other than. the Holders)
any of its capital stock or other securities under the Securities Act in
connection with the public offering of such securities (other than any
offerings registered under Form S-4 or Form S-8 or a comparable or successor
form), then:
(i) the Company in each case will
notify in writing each Holder of
its intention to effect such a
registration at least 30 days prior
to the proposed filing of a
Registration Statement in
connection therewith; and
(ii) the Company will offer each Holder
the opportunity to include in such
registration all or such lesser
amount of Registrable Securities as
each Holder may request. Upon the
request of one or more Holders which
in the aggregate own 2.5% or more of
the outstanding Registrable
Securities, given in writing within
20 days after receipt of the notice
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described under clause (i) above,
the Company will use its reasonable
best efforts as soon as practicable
thereafter to cause any of the
Registrable Securities specified by
such Holder to be included in the
Registration Statement; and
(iii) if the registration of which the
Company gives written notice under
clause (i) above involves an
underwriting, the Company shall use
its reasonable best efforts to cause
the managing underwriter(s) of the
proposed underwritten offering to
permit Holders to include their
Registrable Securities in the
underwriting on the same terms and
conditions as similar terms of the
Company included therein.
(b) Limitations on Company's Obligations to Effect Additional
Piggy-Back Registration. Notwithstanding the provisions of Paragraph 3(a)
above, if and to the extent that the managing underwriter(s) advise the Company
in writing that inclusion of the number of Registrable Securities held by
Holders requesting inclusion in the Registration Statement would materially
interfere with the underwriter's ability to effectuate the registration and
sale of securities proposed to be offered and sold pursuant to the Registration
Statement, the managing underwriter(s) shall select the permissible quantity of
Registrable Securities to be sold by the Holders (which may be none) by
reducing the total number of securities to be sold by the holders of securities
other than Registrable Securities and the Holders (but not the number of
securities to be sold by the Company) on a pro rata basis. For purposes of
apportionment pursuant to this Paragraph 3(b), for any selling Holder that is a
partnership or a corporation, the affiliates of such partnership or shareholder
shall collectively, with such Holder be deemed to be one "selling Holder," and
any pro rata reduction with respect to such "selling Holder" shall be based
upon the aggregate amount of shares carrying registration rights owned by
entities and individuals included in such "selling Holder."
(c) Underwritten Offer. If the registration of which the
Company gives written notice under Paragraph 3(a)(i) above involves an
underwriting, the Company shall so advise in such written notice. In such event
the right of any Holder to registration pursuant to Paragraph 3(a) shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in such underwriting. All
Holders proposing to distribute their Registrable Securities through such
underwriting shall (together with the Company and the
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other holders distributing their Registrable Securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the Company. If
any Holder disapproves of the terms of any such underwriting, such Holder may
elect to withdraw from the underwriting by prompt written notice to the Company
and the underwriter.
4. Registration under Securities Act: Demand Registration.
(a) Demand for Registration. At any time on or after the
third anniversary of this Agreement, any single Holder, which, together with
its Affiliates owns at least 18% of the outstanding shares (an "Initiating
Holder") may request in writing that the Company effect the registration under
the Securities Act of such Holders' Registrable Securities, in which case the
Company will use its best efforts to effect such registration.
(b) Limitation on Company's Obligation. The Company is
obligated to effect only one registration for any single Holder pursuant to
this Paragraph 4, unless the Company fails to effect the registration of all
Registrable Securities for which registration is requested pursuant to this
Paragraph 4 and have such registration declared or ordered effective (in which
event, subject to the foregoing qualification, one further request may be
made); and thereafter the Company shall have no obligation to include any
Registrable Securities in any registration with respect to such Initiating
Holder pursuant to this Paragraph 4.
(c) Underwritten Offer. If an Initiating Holder desires to
distribute Registrable Securities covered by its request by means of an
underwriting, it shall so advise the Company as a part of its request made
pursuant to this Paragraph 4. The Company shall select an underwriter (which
shall be reasonably acceptable to the Initiating Holder) for such underwriting
and shall together with the Initiating Holder enter into an underwriting
agreement in customary form with the underwriter.
5. Registration Obligations of the Company. In connection
with the filing of a Registration Statement pursuant to Paragraph
3 or 4, the Company shall:
(a) Use its reasonable best efforts to cause such
Registration Statement to remain in effect until the earlier of (i) the
completion of the distribution of the Registrable Securities included in the
Registration Statement, or (ii) two years after the date on which the
Registration Statement is declared effective.
(b) Notify the Holders whose Registrable Securities are
included in such Registration Statement (the "Selling Holders") as
to the filing of the Registration Statement and of all amendments
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or supplements thereto filed prior to the effective date of such
Registration Statement;
(c) Notify the Selling Holders, promptly after the Company
shall receive notice thereof, of the time when such Registration Statement
became effective or when any amendment or supplement to any prospectus forming
a part of said Registration Statement has been filed;
(d) Notify the Selling Holders promptly of any request by the
SEC for the amending or supplementing of such Registration Statement or
prospectus or for additional information;
(e) During the period in which the Company is obligated to
use its reasonable best efforts to keep a Registration Statement effective
pursuant to this Paragraph 4, prepare and promptly file with the SEC and
promptly notify the Selling Holders of the filing of any amendments or
supplements to such Registration Statement or prospectus as may be necessary to
correct any statements or omissions if, at any time when a prospectus relating
to the Registrable Securities is required to be delivered under the Securities
Act, any event with respect to the Company shall have occurred as a result of
which any such prospectus or any other prospectus as then in effect would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading; and, in addition,
during such period, prepare and file with the SEC, promptly upon the Selling
Holders' written request, any amendments or supplements to such Registration
Statement or prospectus which may be reasonably necessary or advisable in
connection with the distribution of the Registrable Securities;
(f) Prepare, promptly upon request of the Selling Holders or
any underwriters for the Selling Holders made during the period in which the
Company is obligated to use its reasonable best efforts to keep a Registration
Statement effective, such amendment or amendments to such Registration
Statement and such prospectus or prospectuses as may be reasonably necessary to
permit compliance with the requirements of Section 10(a)(3) of the Securities
Act;
(g) Advise the Selling Holders promptly after the Company
shall receive notice or obtain knowledge of the issuance of any stop order by
the SEC suspending the effectiveness of any such Registration Statement or
amendment thereto or of the initiation or threatening of any proceeding for
that purpose, and promptly use its reasonable best efforts to prevent the issue
of any stop order or obtain its withdrawal promptly if such stop order should
be issued;
(h) Use its reasonable best efforts to qualify as soon as
reasonably practicable the Registrable Securities for sale under the securities
or blue sky laws of such states and jurisdictions
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within the United States as shall be reasonably requested by the Selling
Holders; provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business, to become
subject to taxation or to file a consent to service of process generally in any
of the aforesaid states or jurisdictions;
(i) Furnish the Selling Holders, as soon as available, copies
of any Registration Statement and each preliminary or final prospectus, or
supplement or amendment required to be prepared pursuant hereto, all in such
quantities as the Selling Holders may from time to time reasonably request; and
(j) Furnish each Selling Holder such opinions of counsel and
accountants' "comfort" letters as it reasonably may request with respect to the
registration of its Registrable Securities, the Registration Statement covering
such Registrable Securities and the financial statements included therein.
(k) Apply for listing and use its reasonable best efforts to
list the Registrable Securities, if any, being registered on any national
securities exchange on which a class of the Company's equity securities is
listed or, if the Company does not have a class of equity securities listed on
a national securities exchange, apply for qualification and use its reasonable
best efforts to qualify the Registrable Securities, if any, being registered
for inclusion on the automated quotation system of the National Association of
Securities Dealers, Inc.
6. Expenses. The Company will pay all Registration Expenses in
connection with registrations of Registrable Securities effected pursuant to
Paragraphs 3 or 4. All Selling Expenses in connection with any registration
effected pursuant to this Agreement shall be borne by the Company and the
holders of the Registrable Securities so registered, pro rata on the basis of
the number of Shares included in the registration for the account of the
Company and the number of Registrable Securities so registered by each such
holder.
7. Indemnification.
(a) To the extent permitted by applicable law, the Company
will indemnify each Holder of the Registrable Securities requesting or joining
in a registration, each Person who controls such Holder within the meaning of
Section 15 of the Securities Act, and each underwriter of the securities so
registered and each Person who controls such underwriter, and their respective
officers, directors, partners, agents, employees and successors, against all
costs, expenses, demands, claims, losses, damages, liabilities, fines and
penalties (or actions in respect thereof), to which such holder or such other
Person may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such claims, losses, damages, liabilities, fines and
penalties arise out
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of or are based on any untrue statement (or alleged untrue statement) of a
material fact contained in any Registration Statement or prospectus, or arise
out of or are based upon any omission (or alleged omission) to state therein a
fact required to be stated therein or necessary to make the statements therein
not misleading, or any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law (other than with respect to violations or alleged violations
caused by the Person seeking indemnification under this Section 7(a)) and will
reimburse each such Holder, each Person who controls such Holder within the
meaning of Section 15 of the Securities Act and each such underwriter, and
their respective officers, directors, partners, agents, employees and
successors for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such demand, claim, loss,
damage, liability or action promptly after submission of supporting materials
with respect to such expenses; provided, however, that the Company shall not be
required to indemnify any holder or underwriter or Person which controls any
holder or underwriter for any cost, expense, demand, claim, loss, damage,
liability, fine or penalty which arises out of or is based upon any written
information provided by such holder or underwriter, respectively, expressly for
inclusion in the Registration Statement.
(b) To the extent permitted by applicable law, each Holder
requesting or joining in a registration will indemnify the Company, each of its
officers, directors, successors and controlling persons, and each underwriter,
if any, of the Company's securities covered by a registration statement, each
Person who controls the Company or such underwriter within the meaning of
Section 15 of the Exchange Act, and any other Holder selling securities in such
registration statement or any of its directors, officers, partners, agents or
employees or any other person who controls, within the meaning of Section 15 of
the Exchange Act, such Holder against all costs, expenses, demands, claims,
losses, damages, liabilities, fines and penalties (or actions in respect
thereof) to which such indemnified party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities arise out of or are based upon an untrue statement (or
alleged untrue statement) of a material fact contained in any Registration
Statement or prospectus, or arise out of or are based upon the omission (or
alleged omission) to state therein a fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) was made in any Registration
Statement or prospectus in reliance upon and in conformity with written
information furnished to the Company by such Holder requesting or joining in a
registration specifically for use in the preparation
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thereof; provided, that the liability of any Holder hereunder shall be limited
to the amount of proceeds received by such Holder in the offering giving rise
to the indemnification claim.
(c) Each party entitled to indemnification under this
Paragraph 6 (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has received written notice of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom, provided such
counsel for the Indemnifying Party, who shall conduct the defense of such claim
or litigation, shall be approved by the Indemnified Party (whose approval shall
not be unreasonably withheld or delayed). The Indemnified Party may participate
in such defense at such party's expense; provided, however, that the
Indemnifying Party shall bear the expense of such defense of the Indemnified
Party if (i) the Indemnifying Party has agreed in writing to pay such expenses,
(ii) the Indemnifying Party shall have failed to assume the defense of such
claim or employ counsel reasonably satisfactory to the Indemnified Party, or
(iii) in the reasonable judgment of the Indemnified Party, based upon the
written advice of such Indemnified Party's counsel, representation of both
parties by the same counsel would be inappropriate due to actual or potential
conflicts of interest. In the event that the Indemnifying Party properly does
not assume such defense, the Indemnifying Party shall not be subject to any
liability for any settlement made without its prior written consent, which
consent shall not be unreasonably withheld or delayed. The failure of any
Indemnified Party to give notice as provided herein shall relieve the
Indemnifying Party of its obligations under this Section 7 only to the extent
that such failure to give notice shall materially adversely prejudice the
Indemnifying Party in the defense of any such claim or any such litigation. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the prior written consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which 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 to such claim or
litigation in form and substance reasonably satisfactory to such Indemnified
Party.
8. Contribution.
(a) If the indemnification provided for in Paragraph 7 from
the Indemnifying Party is unavailable to or unenforceable by the Indemnified
Party in respect to any losses, claims, damages, liabilities or expenses
referred to herein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the
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relative fault of the Indemnifying Party and Indemnified Parties in connection
with the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of such Indemnifying Party and Indemnified Parties shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such Indemnifying Party or Indemnified Parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Paragraph 7, any
legal or other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
(b) The Company and the Holders agree that it would not be
just and equitable if contribution pursuant to this Paragraph 8 were determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to in the immediately
preceding paragraph. No Person guilty of fraudulent misrepresentation (within
the meaning of Section II(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(c) If indemnification is available under Paragraph 7, the
Indemnifying Parties shall indemnify each Indemnified Party to the full extent
provided in Paragraph 7 without regard to the relative fault of the
Indemnifying Party or Indemnified Party or any other equitable consideration
provided for in this Paragraph 8.
9. Hold-Back Agreements.
(a) Restrictions on Public Sale by Holder of Registrable
Securities. To the extent consistent with applicable law, each holder of
Registrable Securities whose Registrable Securities are included in a
Registration Statement filed pursuant to Paragraph 3 or 4 hereof agrees not to
effect any public sale or distribution of the issue being registered or any
similar security of the Company, including a sale pursuant to Rule 144 under
the Securities Act, during the 7-day period prior to, and during the 90-day
period beginning on, the effective date of such Registration Statement, to the
extent such sales may prevent the Company from being in compliance with the
Exchange Act; provided, however, that no such restriction shall apply to sales
of Registrable Securities made pursuant to that Registration Statement, which
may be made at any time following the effective date of that Registration
Statement.
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(b) Restrictions on Public Sale by the Company. The
Company shall not effect any public or nonpublic sale or distribution of any
securities similar to those being registered, or any securities convertible
into or exchangeable or exercisable for any such securities or similar
securities, during the 7-day period prior to, and during the 90-day period
beginning on, the effective date of any Registration Statement in which holders
of Registrable Securities are participating or the commencement of a public
distribution of Registrable Securities pursuant to any such Registration
Statement (except (i) as part of such registration or pursuant to registrations
on XXX Xxxxx X-0 or S-8 or any similar or successor form, or on any form filed
in connection with an exchange offer or an offering of securities solely to the
existing stockholders or employees of the Company or (ii) for sales or other
issuances of securities pursuant to outstanding options, warrants, rights or
similar obligations).
10. Rule 144 and Stock Exchange Listings.
From and after the time that the Company becomes subject to
the filing and reporting requirements of the Securities Act and the Exchange
Act, and so long as there are Registrable Securities outstanding:
(a) The Company will file the reports required to be filed by
it under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder, and will take such further action as any holder
of Registrable Securities may reasonably request, all to the extent required
from time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (ii) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of any holder of Registrable Securities, the Company
will deliver to such holder a written statement as to whether it has complied
with such information and requirements.
(b) The Company will use its reasonable best efforts to avoid
taking any action which would cause the Common Stock to cease to be eligible
for inclusion on either of the National Association of Securities Dealers
Automated Quotation System or for listing on any securities exchange on which
it may become listed.
11. Obligations of Holder.
(a) Each Holder of Registrable Securities included in any
registration shall furnish to the Company such information regarding such
Holder and the distribution proposed by such Holder as the Company may
reasonably request in writing and as shall be reasonably required in connection
with any registration, qualification or compliance referred to in this
Agreement.
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(b) Each Holder of the Registrable Securities agrees by
acquisition of such Registered Securities that upon receipt of any notice from
the Company pursuant to Paragraph 5(g), such Holder will forthwith discontinue
such Holders' disposition of Registered Securities pursuant to the registration
statement relating to such Registered Securities until such Holders' receipt of
the copies of the supplemented or amended prospectus contemplated by Paragraph
5(g) and if so directed by the Company, will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
Holders' possession of the prospectus relating to such Registered Securities at
the time of receipt of such notice.
12. Miscellaneous.
(a) Transfer of Certain Rights. The rights granted to the
Holders under this Agreement may be transferred only to a transferee who
delivers to the Company, within a reasonable time after such transfer, a
written instrument by which such transferee agrees to be bound by the
applicable terms of this Agreement and the applicable Stockholders
Agreement(s). Notwithstanding the foregoing, and to the extent consistent with
the applicable Stockholders Agreement(s), nothing herein shall prohibit: (i)
any Holder from transferring any of its rights under this Agreement to any
wholly-owned subsidiary of such Holder or to any entity which merges or
consoLidates with or acquires all or substantially all of the equity securities
or assets of such Holder, (ii) any Holder which is a partnership from
transferring any of its rights under this Agreement to a partner of such
partnership where such partner receives Registrable Securities in a
distribution from such partnership, (iii) any Holder who is an individual from
transferring any of its rights under this Agreement to such Holder's spouse or
to other relatives, or to a trust for the benefit of the Holder, or his or her
spouse or other relatives; or (iv) any trustee of a trust which holds
Registerable Securities from distributing such Registrable Securities to the
beneficiaries of such trusts; provided that any such transferee under
subparagraphs (i), (ii), (iii) or (iv) above will hold the Registrable
Securities subject to the terms and conditions of this Agreement and the
applicable Stockholders Agreements. Upon any transfer of the rights of a Holder
permitted by and completed in compliance with the terms of this Agreement, the
transferee shall become a "Holder" for purposes of this Agreement and the
Company shall add the name and address of the transferee to Schedule I (and, to
the extent the transferor no longer holds Registrable Securities shall delete
the name and address of the transferor).
(b) Remedies. In the event of a breach by the Company
of its obligations under this Agreement, each holder of Registrable
Securities, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The
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Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of any 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.
(c) No Inconsistent Agreements. The Company shall not on or
after the date of this Agreement enter into any agreement with respect to its
securities which is inconsistent with the rights granted to the holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. To the extent the Company on or after the date of this
Agreement grants any superior or more favorable rights or terms to any Person
with respect to its securities, any such superior or more favorable rights or
terms shall also be deemed to have been granted simultaneously to the holders
of Registrable Securities. The Company has not previously entered into or
become a party to nor is it bound by any agreement with respect to its
securities granting any registration rights to any Person which is inconsistent
with the rights granted hereunder. The rights granted to the holders of
Registrable Securities hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the securities of the
Company under any other agreements. In the event of a conflict between the
terms of this Agreement and the terms of the Stockholders Agreement, the terms
of the Stockholders Agreement shall govern for all purposes.
(d) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given without the written
consent of holders of at least a two-thirds majority of the Registrable
Securities affected by such amendment, modification, supplementation, waiver or
consent. Notwithstanding the foregoing, a waiver or consent to departure from
the provisions hereof with respect to (i) a maker which relates exclusively to
the rights of holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and which does not directly or indirectly
affect the rights of other holders of Registrable Securities may be given by
the holders of a two-thirds majority of the Registrable Securities being sold
by such holders, provided that the provisions of this sentence may not be
amended, modified, or supplemented except in accordance with the provisions of
the immediately preceding sentence and (ii) any amendments to Section 4 hereof
shall require the approval of Astra as long as Astra owns at least 15 % of the
outstanding shares of the Company.
(e) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing and shall be delivered by
hand, next-day courier service, registered or certified first-class mail,
return receipt requested, telex, telegram or telecopier; if to a Holder, at the
address set forth
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15
opposite such Holder's name on Schedule I attached hereto or such other address
as may have been furnished to the Company in writing; if to the Company, at
00000 Xxxxx Xxxxxxx-Xxxxxxx, Xxxxxxx, Xxxxx 00000 and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Paragraph 11(e).
All such notices and communications shall be deemed to have
been duly given when delivered by hand, if personally delivered; one business
day after sent if sent by courier service.
(f) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware
without regard to the conflict of laws provisions thereof.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i) 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, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(j) Entire Agreement. This Agreement (and all exhibits and/or
schedules attached hereto) is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the securities
now or hereafter owned by the Holders. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter, including, without limitation, the First Amended and Restated
Agreement.
(k) Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof or
thereof is validly asserted as a defense, the successful party shall be
entitled to recover, and the court shall award, reasonable attorneys' fees in
addition to its costs and expenses and any other available remedy.
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16
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties as of the date first above written.
THE COMPANY:
HANOVER COMPRESSOR COMPANY, a
Delaware corporation
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGES]
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17
THE HOLDERS:
ASTRA RESOURCES, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
GKH PARTNERS, L.P., a Delaware
limited partnership
By: JAKK HOLDING CORP., a
general partner
By:
--------------------------------
Xxxxxx X. Xxxxx, President
GKH INVESTMENTS, L.P., a
Delaware limited partnership.
By: GKH Partners, L.P., its
general partner
By: JAKK Holding Corp., a
general partner
By:
--------------------------------
Xxxxxx X. Xxxxx, President
------------------------------------
Xxxxxx Xxxxxxxxxx, Xx.
------------------------------------
Xxxxx X. Xxxxxxxx, solely in
her capacity as Trustee of the
Xxxxx X. Xxxxxxxx Declaration
of Trust
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18
-----------------------------------
Xxxxxxx X. Xxxxx, Xx.
-----------------------------------
Xxxxx Xxxxx
-----------------------------------
Xxxx Xxxx Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx Xxxxx
-----------------------------------
Xxxxxxx Xxxxxxx Xxxxx
-----------------------------------
Xxxxx X. Xxxxxxxxx
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19
-----------------------------------
C. Xxxxx Xxxxx, solely in his
capacity:
(i) as Trustee of the Trust for
the Benefit of Xxxxx Xxxxxxxxx
(ii) as Trustee of the Trust
for the Benefit of Xxxx Xxxxxxxxx
(iii) as Trustee of the Trust
for the Benefit of Xxxxxxxxxxx
Xxxxxxxxx
(iv) as Trustee of the Trust
for the Benefit of Xxxxx
Xxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxx X. Xxxxx
-----------------------------------
L. O. Xxxx Revocable Trust
-----------------------------------
Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxx
-----------------------------------
Xxx X. Xxxx
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20
JOINT ENERGY DEVELOPMENT
INVESTMENTS LIMITED PARTNERSHIP
By: Enron Capital Management
Limited Partnership, its
general partner
By: Enron Capital Corp., the
general partner of Enron
Capital Management Limited
Partnership
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
IPP95, L.P.
By: WESTINVEST, Inc., its
general partner
----------------------------------
Name:
Title:
XXXXX INVESTMENT GROUP, II
By:
-------------------------------
Name:
Title:
----------------------------------
Xxx Xxxxxxx, Jr.
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21
XXXX CANDIES, INC.
By:
------------------------
Name: Xxxx Candies
Title: President
---------------------------
Xxxxxxx X. Xxxxx
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