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EXHIBIT F
Purchase Agreement
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EXHIBIT F
PURCHASE AGREEMENT
dated as of
October 23, 2000
among
XXXXXXXXXXX INTERNATIONAL, INC.,
WEUS HOLDING, INC.,
ENTERRA COMPRESSION COMPANY,
GENERAL ELECTRIC CAPITAL CORPORATION,
AND
GLOBAL COMPRESSION SERVICES, INC.
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PURCHASE AGREEMENT
PURCHASE AGREEMENT ("Agreement") dated as of October 23, 2000 among,
Xxxxxxxxxxx International, Inc., a Delaware corporation ("Weatherford"), WEUS
Holding, Inc., a Delaware corporation and a wholly owned subsidiary of
Weatherford ("WEUS"), Enterra Compression Company, a Delaware corporation and a
wholly owned subsidiary of WEUS (the "Company), Global Compression Services,
Inc., a Delaware corporation ("GC"), and General Electric Capital Corporation, a
New York corporation and the ultimate parent of GC ("GE Capital").
RECITALS:
WHEREAS, GC is the owner of (a) 16,690,059 common shares (the "Shares") of
Xxxxxxxxxxx Global Compression Services, Ltd., a corporation organized under the
laws of Alberta, Canada ("Canada"), (b) a 35.64% limited partner interest (the
"Limited Partner Interest") in Xxxxxxxxxxx Global Compression Services, L.P., a
Delaware limited partnership (the "Partnership"), and (c) a 36% membership
interest (the "Membership Interest" and, together with the Shares and the
Limited Partner Interest, the "Interests") in Weatherford Global Compression
Holding, L.L.C., a Delaware limited liability company and the general partner of
the Partnership (the "General Partner");
WHEREAS, concurrently with the execution of this Agreement, Weatherford,
WEUS, the Company, Universal Compression Holdings, Inc., a Delaware corporation
("Parent"), and Universal Compression, Inc., a Texas corporation and a wholly
owned subsidiary of Parent ("Merger Subsidiary"), have entered into an Agreement
and Plan of Merger, a copy of which is attached hereto as Exhibit A (the "Merger
Agreement"), pursuant to which, on the terms and subject to the conditions set
forth therein, the Company will be merged with and into Merger Subsidiary (the
"Merger"), which Merger shall become effective at such time (the "Effective
Time") as the Certificate of Merger and the Articles of Merger are duly filed
with the Delaware Secretary of State and the Texas Secretary of State,
respectively (or at such later time as may be agreed in writing by the parties
to the Merger Agreement and specified in the Certificate or Articles of Merger);
WHEREAS, in connection with the Merger, WEUS (and any other affiliate of
Weatherford that may become a stockholder of the Company prior to the Merger;
any such affiliates being within the meaning of "WEUS" as used herein) will
receive 13,750,000 shares of common stock, par value $0.01 per share ("Parent
Common Stock") of Universal (the "Merger Shares");
WHEREAS, Weatherford, WEUS, and the Company have determined that it is in
their best interests that the Company purchase, subject to the terms and
conditions set forth herein, the Interests from GC (the "Purchase");
WHEREAS, GC and GE Capital have determined that it is in their best
interests that GC sell, subject to the terms and conditions set forth herein,
the Interests to the Company;
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WHEREAS, by consummation of the transactions contemplated by the Purchase,
Canada and the General Partner will become indirect wholly owned subsidiaries of
the Company, and the Company will own all of the outstanding limited partner
interests of the Partnership.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.1 Definitions. All capitalized terms used but not defined herein
shall have the meanings specified in the Merger Agreement.
ARTICLE II
Purchase
Section 2.1 The Sale and Purchase. Upon the terms and subject to the
satisfaction or waiver of the conditions hereof, and in reliance upon the mutual
representations, warranties, and covenants contained herein, immediately prior
to the Effective Time, GC will sell, assign, transfer, and deliver to the
Company, and the Company will purchase and acquire from GC, the Interests, free
and clear of any Liens, and in the proper form for transfer.
Section 2.2 Initial Purchase Price. The aggregate initial purchase price to
be paid by the Company hereunder at Closing (as defined in Section 7.1(c)) shall
be US$206,500,000 (the "Initial Purchase Price"). Upon the terms and subject to
the satisfaction or waiver conditions of this Agreement, at the Closing GC will
deliver to the Company (a) certificates representing the Shares and (b) an
Assignment with respect to the Limited Partner Interest and the Membership
Interest against payment by the Company of the Initial Purchase Price. The
Initial Purchase Price shall be paid by the Company to GC by wire transfer of
immediately available funds to an account designated by GC in writing to the
Company.
Section 2.3 Allocation of Initial Purchase Price. (a) The Initial Purchase
Price shall be allocated among the Interests being sold hereunder (the
"Allocation") as shall be mutually agreed no later than February 1, 2001 between
the Company and GC. GC and the Company agree that, except as otherwise required
by law, (a) the Allocation shall be binding on GC and the Company for all
federal, state, and local tax purposes and (b) GC and the Company, if required,
shall file with their respective federal income tax returns consistent IRS Forms
8594 -- Asset Acquisition Statements Under Section 1060, including any required
amendments thereto which shall reflect the allocations set forth in the
Allocation. The parties acknowledge that the allocation of the Initial Purchase
Price provided for in the Allocation will be reasonable.
(b) The Company and GC agree that any additional amounts paid by the
Company and received by GC pursuant to Section 2.5 shall be allocated among the
Interests being sold hereunder in the same percentages as the allocation of the
Initial Purchase Price. The
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Company and GC further agree, for all tax purposes, the fair market value as of
the date hereof of the right to receive additional amounts pursuant to Section
2.5 shall not exceed $25,000.
(c) For all income tax purposes, GC's distributable share of the
taxable income of the Partnership and Weatherford Global Compression Holding,
L.L.C., respectively, for the taxable years of such entities in which the
Closing occurs shall be determined on the basis of an interim closing of the
books on the date of Closing.
Section 2.4 Retained Liabilities; Expiration of Obligations. (a) After the
Closing, GC and GE Capital shall be jointly and severally obligated to pay,
perform, and otherwise be and remain responsible for each and every Excluded
Global Liability (as defined in the Formation Agreement). GC and GE Capital
hereby agree that Parent shall be entitled to recover from GC and GE Capital all
amounts in respect of losses attributable to each and every Excluded Global
Liability. GC and GE Capital agree that their liabilities and obligations
expressed in this Section 2.4(a) shall continue and be enforceable in accordance
with the terms hereof and the Formation Agreement. The parties hereby
acknowledge that the obligations of GC and GE Capital under Section 2.1(d)(4) of
the Formation Agreement have been fulfilled.
(b) As a result of the Purchase, GC will no longer be a limited partner
of the Partnership, and, pursuant to Section 4.8 of the Limited Partnership
Agreement of the Partnership (the "LP Agreement"), the obligations of the
Partnership with respect to payments to GC in respect of the Depreciation
Benefit Shortfall Amount (as defined in the LP Agreement) pursuant to Section
4.8 of the LP Agreement shall terminate on and as of the date of the Closing and
shall be of no further force or effect. The Depreciation Benefit Shortfall
Amount for the period of January 1, 2000 through the Closing Date of this
Agreement (the "Final DBSA") shall be calculated, verified by
PriceWaterhouseCoopers and paid by the Partnership to GC within 30 days after
the Closing Date, with any amount thereof remaining unpaid after such 30 day
period bearing interest at a rate equal to the prime rate of interest published
from time to time by The Wall Street Journal, plus two percent (2%) per annum.
Section 2.5 Purchase Price Adjustments. If the closing sale price on the
New York Stock Exchange of shares of Parent Common Stock on the day the
Effective Time occurs (or, if the Effective Time occurs on a day that is not a
trading day, on the trading day immediately preceding the day the Effective Time
occurs) is greater than or equal to $37 per share, then GC shall have the
following rights with respect to causing WEUS to sell certain of the Merger
Shares and receiving a portion of the proceeds from the sale of such shares:
(a) At any time and from time to time prior to the fifth anniversary of
the date of the Effective Time, GC shall have the right to direct WEUS to sell
(in each instance, a "Sale Request") up to an aggregate of 250,000 Merger Shares
in one or more transactions at prices that will yield net proceeds (after taking
into account underwriting discounts and commissions, if applicable) to WEUS of
not less than $47.00 per share, and WEUS shall have the obligation, subject to
applicable laws or regulations and subject to the limitations in the
Registration Rights Agreement (as defined in the Merger Agreement), to use its
commercially reasonable efforts to sell such shares promptly in such a manner
and upon such conditions so as to maximize the sale price of such shares,
including sales in compliance with Rule 144 or Rule 145 of the 1933 Act and the
anti-fraud provisions of the 1934 Act; provided, however, in no event shall GC
have the right to
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make more than 1 Sale Request in any one month period or to require WEUS to
request the filing of a registration statement for such shares.
(b) Upon receipt of a Sale Request from GC, WEUS shall be entitled to
either (i) sell the number of Merger Shares subject to such Sale Request in
accordance with (a) above or (ii) in lieu of selling such shares, pay to GC the
amount that would be payable to GC in accordance with (c) below had the shares
been sold at a price equal to the weighted average closing sales price of shares
of Parent Common Stock on the New York Stock Exchange on the third and fourth
trading days following the day on which WEUS received GC's Sale Request.
(c) If WEUS sells for cash any Merger Shares in accordance with (a) or
elects to pay GC in accordance with (b) above, in each case for a net price
(after taking into account underwriting discounts and commissions, if
applicable) greater than $47.00 per share (shares sold above such price being
referred to herein as "Qualifying Shares"), then WEUS shall pay to GC an amount
per Qualifying Share equal to the excess of the net price over $47.00 per share.
(d) All amounts payable by WEUS pursuant to this Section 2.5 shall be
paid by WEUS to GC by wire transfer of immediately available funds on the next
Business Day following each settlement date for the sale of Qualifying Shares,
or, in the event of a transaction under Section 2.5(b)(ii), on the fourth
Business Day following the fourth trading day referenced therein. The dollar
amounts per share and the number of shares in clauses (a), (b), and (c) of this
Section 2.5 shall be appropriately adjusted to reflect (i) the issuance of
Parent Common Stock as a dividend on the Parent Common Stock, (ii) subdivisions,
combinations and reclassifications of the Parent Common Stock, (iii) the
issuance to all holders of Parent Common Stock of rights or warrants entitling
them to subscribe for Parent Common Stock at less than the then current market
price of the Parent Common Stock or (iv) the distribution to all holders of
Parent Common Stock of evidences of indebtedness or securities or assets of
Parent.
(e) Whenever WEUS proposes to sell any Merger Shares, WEUS shall notify
GC of its intention to do so.
Section 2.6 Weatherford Support. Weatherford is executing this Agreement to
evidence its irrevocable and unconditional guarantee to GC and GE Capital that
(a) the Company shall duly and punctually pay the Initial Purchase Price at
Closing and (b) WEUS shall be, and Weatherford shall cause WEUS to be, duly and
punctually obligated under the terms of Section 2.5 hereof.
ARTICLE III
Representations and Warranties of GC
GE Capital and GC jointly and severally represent and warrant to
Weatherford, WEUS, and the Company as follows:
Section 3.1 Title to the Interests. GC has good and marketable title to the
Interests and will, upon delivery of the Assignment and the certificates
representing the Shares and receipt of the Initial Purchase Price pursuant to
the terms hereof, transfer to the Company good and marketable title to the
Interests, free and clear of any Liens. The Interests represent all of the
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outstanding shares of capital stock, limited partner interests, and membership
interests, as applicable, owned by GC in Canada, the Partnership, and the
General Partner, respectively. There are no outstanding subscriptions, options,
or rights of any kind issued, granted by, or binding upon GC or any of its
affiliates, to purchase or otherwise acquire the Interests or any portion
thereof.
Section 3.2 Authorization. GE Capital and GC each have the requisite
corporate power and authority to execute and deliver this Agreement and, subject
to the approvals described in Section 6.2 hereof, to consummate the transactions
contemplated by this Agreement. The execution and delivery of this Agreement by
GC and GE Capital and the performance by GC and GE Capital of their obligations
under this Agreement have been duly and validly authorized by all necessary
action on the part of GC and GE Capital, as applicable. This Agreement has been
duly executed, and delivered by GE Capital and GC and constitutes the valid and
binding obligation of GC and GE Capital, enforceable against each of them in
accordance with its terms, subject to (x) applicable bankruptcy, insolvency,
reorganization, moratorium, and other similar laws of general application with
respect to creditors, (y) general principles of equity, and (z) the power of a
court to deny enforcement of remedies generally based upon public policy.
Section 3.3 Consents and Approvals; No Violation. Neither the execution and
delivery of this Agreement by GE Capital or GC, nor the consummation by either
of them of the transactions contemplated by this Agreement, will: (a) require
any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Authority, except (i) in connection with the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act")
and (ii) in connection with the filing of premerger notification information
with the Canadian Competition Bureau, the expiration of the applicable waiting
period(s) under Part IX of the Competition Act (Canada) and the filing with
Industry Canada under the Investment Canada Act; (b) conflict with or result in
any violation of, or default (with or without notice or lapse of time, or both)
under, or result in the creation of any Lien upon any of the Interests, under
any provision of (x) any contract or agreement to which GC or GE Capital is a
party, except for such conflicts, violations or defaults which would not,
individually or in the aggregate, impair the consummation of the Purchase or (y)
subject to the governmental filings and other matters referenced by clause (a)
above, any law or arbitration award applicable to GE Capital, GC or the
Interests; (c) assuming compliance with the matters referred to in Section
3.3(a), violate any order, writ, injunction, decree, statute, rule, or
regulation applicable to GC or GE Capital; or (d) conflict with or result in any
breach of any provision of the Certificate of Incorporation or Bylaws (or other
similar governing documents) of GC or GE Capital, as applicable.
Section 3.4 Litigation and Compliance With Laws. There are no actions,
suits, claims, arbitration proceedings or governmental investigations or
inquiries that are pending or, to the knowledge of GC or GE Capital, threatened
against GC or GE Capital, or their respective officers, directors, employees or
their assets that could prevent, prohibit or impair or impede the transactions
contemplated by this Agreement. Neither GC nor GE Capital is subject to any
injunction, order or decree of any court or government authority that could
prevent, prohibit or impair or impede the transactions contemplated by this
Agreement. GC and GE Capital have complied with all applicable laws, rules,
regulations, reporting requirements, codes, plans, injunctions, judgments,
orders, decrees, rulings, and charges of federal, state, local, and foreign
governments, except where the failure to do so would not have a material adverse
effect upon GC's or GE Capital's ability to consummate the transactions
contemplated by this Agreement.
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Section 3.5 Financial Advisors. Except for ING Barings (advisor to GC and
GE Capital), no Person has acted, directly or indirectly, as a broker, finder or
financial advisor for GC or GE Capital in connection with the transactions
contemplated by this Agreement and no Person is entitled to any fee or
commission or like payment in respect thereof for which Weatherford, WEUS, or
the Company could become liable or obligated.
ARTICLE IV
Representations and Warranties of Weatherford, WEUS, and the Company
Weatherford, WEUS, and the Company jointly and severally represent and
warrant to GE Capital and GC as follows:
Section 4.1 Authorization. Weatherford, WEUS, and the Company each have the
requisite corporate power and authority to execute and deliver this Agreement
and, subject to the approvals described in Section 6.2 hereof, to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement by Weatherford, WEUS, and the Company and the performance by
Weatherford, WEUS, and the Company of their respective obligations under this
Agreement have been duly and validly authorized by all necessary action on the
part of Weatherford, WEUS, and the Company, as applicable. This Agreement has
been duly authorized, executed, and delivered by each of Weatherford, WEUS, and
the Company and constitutes the valid and binding obligation of each of them,
enforceable against each of them in accordance with its terms, subject to (x)
applicable bankruptcy, insolvency, reorganization, moratorium, and other similar
laws of general application with respect to creditors, (y) general principles of
equity, and (z) the power of a court to deny enforcement of remedies generally
based upon public policy.
Section 4.2 Consents and Approvals; No Violation. Neither the execution and
delivery of this Agreement by Weatherford, WEUS, or the Company nor the
consummation by Weatherford, WEUS, or the Company of the transactions
contemplated by this Agreement, will: (a) require any consent, approval,
authorization or permit of, or filing with or notification to, any Governmental
Authority, except (i) in connection with the HSR Act and (ii) in connection with
the filing of premerger notification information with the Canadian Competition
Bureau, the expiration of the applicable waiting period(s) under Part IX of the
Competition Act (Canada) and the filing with Industry Canada under the
Investment Canada Act; (b) conflict with or result in any violation of, or
default (with or without notice or lapse of time, or both) under, (i) any
contract or agreement to which Weatherford, WEUS, or the Company, is a party,
except for such conflicts, violations or defaults which would not, individually
or in the aggregate, impair the consummation of the Purchase, or (ii) subject to
the governmental filings and other matters referenced by clause (a) above, any
law or arbitration award applicable to Weatherford, WEUS, or the Company; (c)
assuming compliance with the matters referred to in Section 4.2(a), violate any
order, writ, injunction, decree, statute, rule, or regulation applicable to
Weatherford, WEUS, or the Company; or (d) conflict with or result in any breach
of any provision of the Certificate of Incorporation or Bylaws (or other similar
governing documents) of Weatherford, WEUS, or the Company, as applicable.
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Section 4.3 Availability of Funds. The Company will have sufficient funds
available to it to pay the Initial Purchase Price at Closing as described in
Section 2.2 hereof and WEUS will have sufficient funds available to satisfy its
obligations pursuant to Section 2.5 hereof.
Section 4.4 Litigation and Compliance With Laws. There are no actions,
suits, claims, arbitration proceedings or governmental investigations or
inquiries that are pending or, to the knowledge of Weatherford, WEUS, or the
Company, threatened against Weatherford, WEUS, or the Company, or their
respective officers, directors, employees or their assets that could prevent,
prohibit or impair or impede the transactions contemplated by this Agreement.
Neither Weatherford, WEUS, nor the Company is subject to any injunction, order
or decree of any court or government authority that could prevent, prohibit or
impair or impede the transactions contemplated by this Agreement. Weatherford,
WEUS, and the Company have complied with all applicable laws, rules,
regulations, reporting requirements, codes, plans, injunctions, judgments,
orders, decrees, rulings, and charges of federal, state, local, and foreign
governments, except where the failure to do so would not have a material adverse
effect upon the Company's ability to consummate the transactions contemplated by
this Agreement.
Section 4.5 Financial Advisors. Except for Xxxxxxx & Company International
(financial advisor to Weatherford, WEUS, and the Company), no Person has acted,
directly or indirectly, as a broker, finder or financial advisor for
Weatherford, WEUS, or the Company in connection with the transactions
contemplated by this Agreement and no Person is entitled to any fee or
commission or like payment in respect thereof for which GC or GE Capital could
become liable or obligated.
ARTICLE V
Covenants of GE Capital and GC
Section 5.1 Disposition of Interests. From the date hereof until the
Closing, GE Capital and GC covenant and agree that GC will not, and GE Capital
will not allow GC to, transfer, sell, dispose of, or agree to transfer, sell, or
dispose of the Interests or any portion thereof or issue or grant to any Person
any option or right to purchase the Interests or any portion thereof, or enter
into any agreement, commitment, or understanding to do, or with respect to, any
of the foregoing.
ARTICLE VI
Covenants of GE Capital, GC, Weatherford, WEUS, and the Company
Section 6.1 Reasonable Best Efforts. Subject to the terms and conditions of
this Agreement, each party will use its reasonable best efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper, or advisable under applicable laws and regulations to
consummate the transactions contemplated by this Agreement.
Section 6.2 Certain Filings. (a) The parties shall cooperate with one
another in determining whether any action by or in respect of, or filing with,
any Governmental Authority is required, or any actions, consents, approvals, or
waivers are required to be obtained from parties to
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any material agreements, in connection with the consummation of the transactions
contemplated by this Agreement, and in taking such actions or making such
filings, furnishing information required in connection therewith and seeking
timely to obtain such actions, consents, approvals, or waivers.
(b) If not previously filed by GC and the Company, within ten Business
Days after the date hereof, GC and the Company will make such filings as may be
required by the HSR Act, the Competition Act (Canada) and the Investment Canada
Act with respect to the consummation of the transactions contemplated by this
Agreement, will request early termination of any waiting period under the XXX
Xxx, xxx Xxxxxxxxxxx Xxx (Xxxxxx) and the Investment Canada Act, and will use
reasonable efforts to obtain early termination of any such waiting periods. GC
and the Company will file or cause to be filed as promptly as practicable with
the United States Federal Trade Commission ("FTC"), the United States Department
of Justice ("Justice Department"), and the Canadian Competition Bureau any
supplemental information which may be requested pursuant to the HSR Act or the
Competition Act (Canada), respectively. All filings referred to in this Section
6.2(b) will comply in all material respects with the requirements of the
respective laws pursuant to which they are made. Each party shall pay its own
fees in connection with the filing(s) by such party under the HSR Act and the
Competition Act (Canada).
(c) Without limiting the generality or effect of Section 6.2(b), and
notwithstanding any provision herein to the contrary, each of the parties will
(i) use reasonable commercial efforts to comply as expeditiously as possible
with all lawful requests of Governmental Authorities for additional information
and documents pursuant to the HSR Act, the Competition Act (Canada) and the
Investment Canada Act, (ii) not (A) extend any waiting period under the XXX Xxx,
xxx Xxxxxxxxxxx Xxx (Xxxxxx) or the Investment Canada Act or (B) enter into any
voluntary agreement with any Governmental Authorities not to consummate the
transactions contemplated by this Agreement, except with the prior consent of
the other, and (iii) cooperate with each other and use reasonable efforts to
obtain the requisite approval of the FTC, the Justice Department and the
Canadian Competition Bureau.
(d) Prior to the Effective Time, the Company shall provide GC with all
necessary and proper information to obtain a Section 116 Clearance Certificate
(the"Certificate") from the appropriate Canadian authority. Following the
receipt of such information from the Company, GC will use its reasonable efforts
to obtain such Certificate.
Section 6.3 Notices of Certain Events. Each of GC and the Company shall
promptly notify the other party hereto of:
(a) any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with the transactions
contemplated by this Agreement;
(b) any notice or other communication from any Governmental Authority
in connection with the transactions contemplated by this Agreement;
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(c) any actions, suits, claims, investigations, or proceedings
commenced or, to its actual knowledge, threatened against, relating to, or
involving, or otherwise affecting such party that relate to the consummation of
the transactions contemplated by this Agreement;
(d) (i) the discovery by such party that any representation or warranty
contained in this Agreement is untrue or inaccurate in any material respect and
(ii) any material failure on its part to comply with or satisfy any covenant,
condition, or agreement to be complied with or satisfied by it hereunder;
provided, however, that the delivery of any notice pursuant to this Section
6.3(d) shall not limit or otherwise affect the remedies available hereunder to
the party receiving such notice.
Section 6.4 Publicity. Each party agrees that it shall not issue any press
release or public announcement concerning this Agreement or the transactions
contemplated by this Agreement, other than as required by law, without providing
prior notice of the specific subject matter thereof to the other parties hereto.
Section 6.5 Amendment of Agreement Prior to the Merger. Notwithstanding any
other provision of this Agreement, GC and GE Capital agree with Weatherford,
WEUS, and the Company that, at the request of Weatherford, WEUS, or the Company
at any time prior to the Closing, this Agreement may be amended to reflect the
purchase by a Weatherford entity other than the Company of GC's interests in
Canada, the Partnership and the General Partner, or such other structure that
would reduce the transaction costs of the Merger to Weatherford, WEUS, or the
Company; provided, however, that such amendment shall not adversely affect the
rights of or the transaction costs to GC or GE Capital. If a revised structure
is substituted, the parties shall execute an appropriate amendment to this
Agreement in a form mutually acceptable to GC and GE Capital, on the one hand,
and Weatherford, WEUS, and the Company, on the other hand, to reflect the
revised structure.
ARTICLE VII
Conditions to the Purchase and Sale
Section 7.1 Conditions to the Obligations of Each Party. The obligations of
Weatherford, WEUS, the Company, GE Capital and GC to consummate the Purchase are
subject to the satisfaction, or waiver, of the following conditions:
(a) any applicable waiting period under the HSR Act relating to this
Agreement, the Purchase, and the other transactions contemplated hereby shall
have expired or been terminated;
(b) no provision of any applicable law or regulation and no judgment,
injunction, order, or decree shall prevent, prohibit or impair the consummation
of the Purchase; and
(c) all conditions to the Merger, as set forth in the Merger Agreement,
shall have been satisfied or waived, and such transaction shall close (the
"Closing") contemporaneously with the Purchase.
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Section 7.2 Conditions to the Obligations of Weatherford, WEUS, and the
Company. The obligations of Weatherford, WEUS, and the Company to consummate the
Purchase are subject to the satisfaction, or waiver, of the following further
conditions:
(a) (i) all representations and warranties of GE Capital and GC
contained in Article III and in any agreement, instrument, or document delivered
pursuant hereto or in connection herewith on or prior to the Closing shall be
true and correct in all material respects on and as of the date hereof and on
and as of the Closing as if made on and as of such date and (ii) all covenants
and agreements of GE Capital and GC contained in this Agreement to be performed
on or before the Closing in accordance with this Agreement shall have been duly
performed in all material respects; and
(b) the Company shall have received at the Closing (i) a
certificate(s), dated the day of the Closing and validly executed by or on
behalf of GE Capital and GC, to the effect that the conditions set forth in
clauses (a)(i) and (a)(ii) above have been so satisfied and (ii) an
acknowledgment of the obligations and rights referred to herein for the benefit
of the referenced parties.
Section 7.3 Conditions to the Obligations of GE Capital and GC. The
obligations of GE Capital and GC to consummate the Purchase are subject to the
satisfaction, or waiver, of the following further conditions:
(a) (i) all representations and warranties of Weatherford, WEUS, and
the Company contained in Article IV, and in any agreement, instrument, or
document delivered pursuant hereto or in connection herewith on or prior to the
Closing shall be true and correct in all material respects on and as of the date
hereof and on and as of the Closing as if made on and as of such date, and (ii)
all covenants and agreements of Weatherford, WEUS, and the Company contained in
this Agreement to be performed on or before the Closing in accordance with this
Agreement shall have been duly performed in all material respects; and
(b) GE Capital and GC shall have received at the Closing a
certificate(s), dated the day of the Closing and validly executed by or on
behalf of Weatherford, WEUS, and the Company, to the effect that the conditions
set forth in clauses (a)(i) and (a)(ii) above have been so satisfied and (ii) an
acknowledgment of the obligations and rights referred to herein for the benefit
of the referenced parties.
ARTICLE VIII
Termination
Section 8.1 Termination. This Agreement may be terminated by any party
hereto, and the Purchase may be abandoned, at any time prior to the Closing
(notwithstanding any corporate approvals of this Agreement and the transactions
contemplated herein) (a) if the Merger Agreement has been terminated; (b) if the
Closing contemplated herein shall not have occurred on or before March 31, 2001;
provided that all parties agree to use their reasonable efforts to cause the
Closing to occur on or before March 31, 2001, or as soon as possible thereafter;
or (c) if there has been a material violation or breach by any of the parties of
any agreement, representation or
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warranty contained in this Agreement which has rendered the satisfaction of any
condition to the obligations of the parties to effect the Closing impossible and
such violation or breach has not been waived by the other parties.
Section 8.2 Procedure and Effect of Termination. In the event of
termination of this Agreement and abandonment of the Purchase contemplated
hereby pursuant to Section 8.1, written notice thereof shall forthwith be given
by the terminating party to the other parties and this Agreement shall terminate
and the Purchase contemplated hereby shall be abandoned, without further action
by any of the parties hereto and all filings, applications and other submissions
made pursuant to this Agreement, to the extent practicable, shall be withdrawn
from the agency or other Person to which they were made. Said termination shall
not affect the rights of the parties hereto with respect to breaches of any
agreement, covenant, representation or warranty contained in this Agreement.
ARTICLE IX
Miscellaneous
Section 9.1 Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Delaware without reference
to the choice of law principles thereof.
Section 9.2 Entire Agreement. This Agreement and any other agreements to be
entered into as contemplated herein constitute the entire agreement between the
parties with respect to the subject matter hereof and there are no agreements,
understandings, representations or warranties between the parties other than
those set forth or referred to herein.
Section 9.3 Survival. The representations and warranties in Article III and
Article IV shall survive the execution and delivery of this Agreement for a
period of two years after the date of the Closing; provided, however, that the
representations and warranties in Section 3.1 and Section 4.3 shall survive
indefinitely.
Section 9.4 Expenses and Fees. Except to the extent specifically provided
for herein, whether or not the transactions contemplated hereby are consummated,
all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be borne by the party incurring such
costs and expenses.
Section 9.5 Notices. All notices hereunder shall be sufficient upon receipt
for all purposes hereunder if in writing and delivered personally, sent by
documented overnight delivery service or, to the extent receipt is confirmed,
telecopy, telefax, or other electronic transmission service to the appropriate
address or number as set forth below.
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If to GE Capital or GC, to:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
with a copy to:
Weil, Gotshal & Xxxxxx, LLP
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
if to the Company, to:
Xxxxxxxxxxx International, Inc.
0 Xxxx Xxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxx
with a copy to:
Xxxxxxx & Xxxxx L.L.P.
0000 Xxxxx Xxxxx
000 Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Section 9.6 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns permitted in this Section 9.6. Except as set forth in Section 6.5,
neither this Agreement nor any of the rights, interests or obligations of any
party arising hereunder or as contemplated by the transactions set forth herein
may be assigned, delegated, or otherwise transferred, including by operation of
law, without the consent of each of the other parties hereto.
Section 9.7 Headings; Definitions. The Section and Article headings
contained in this Agreement are inserted for convenience of reference only and
will not affect the meaning or interpretation of this Agreement. All references
to Sections or Articles contained herein mean Sections or Articles of this
Agreement unless otherwise stated. All capitalized terms defined herein are
equally applicable to both the singular and plural forms of such terms.
Section 9.8 Amendments and Waivers. This Agreement may not be modified or
amended except by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment is sought. Any
party hereto may, only by an instrument in writing, waive compliance by any
other party hereto with any term or provision of this Agreement on the part of
such other party hereto to be performed or complied with. The
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waiver by any party hereto of a breach of any term or provision of this
Agreement shall not be construed as a waiver of any subsequent breach.
Section 9.9 Agreement for the Parties' Benefit. This Agreement is not
intended to confer upon any Person not a party hereto any rights or remedies
hereunder, and no Person other than the parties hereto or such Persons described
above is entitled to rely on any representation, warranty, or covenant contained
herein.
Section 9.10 Severability. If any term or other provision of this Agreement
is invalid, illegal, or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal, or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that the transactions contemplated by this Agreement are
fulfilled to the extent possible.
Section 9.11 Jurisdiction. Any legal action, suit, or proceeding in law or
equity arising out of or relating to this Agreement and transactions
contemplated by this Agreement may be instituted in any state or federal court
in Xxxxxx County, Houston, Texas, and each party agrees not to assert, by way of
motion, as a defense, or otherwise, in any such action, suit, or proceeding, any
claim that it is not subject personally to the jurisdiction of such court, that
its property is exempt or immune from attachment or execution, that the action,
suit, or proceeding is brought in an inconvenient forum, that the venue of the
action, suit, or proceeding is improper or that this Agreement, or the subject
matter hereof or thereof may not be enforced in or by such court. Each party
further irrevocably submits to the jurisdiction of any such court in any such
action, suit, or proceeding. Any and all service of process and any other notice
in any such action, suit, or proceeding shall be effective against any party if
given by registered or certified mail, return receipt requested, or by any other
means of mail which requires a signed receipt, postage prepaid, mailed to such
party at the address listed in Section 9.4.
Section 9.12 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 9.13 Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement was not
performed in accordance with its terms or were otherwise breached, and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy to which they are entitled at law or in equity.
Section 9.14 Counterparts; Effectiveness. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other party. In making proof
of this Agreement, it shall not be necessary to produce or account for more than
one such counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXXXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxx X. Xxxx
--------------------------------------
Title: Executive Vice President
-------------------------------------
WEUS HOLDING, INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxx X. Xxxx
--------------------------------------
Title: Executive Vice President
-------------------------------------
ENTERRA COMPRESSION COMPANY
By: /s/ Xxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxx X. Xxxx
--------------------------------------
Title: Executive Vice President
-------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
--------------------------------------
Title: Vice President
-------------------------------------
GLOBAL COMPRESSION SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
--------------------------------------
Title: Vice President
-------------------------------------
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