EXHIBIT 4.10
HANOVER COMPRESSOR COMPANY
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT AND THE ACCOMPANYING MATERIALS DO NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY A SECURITY IN
ANY JURISDICTION IN WHICH, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH
AN OFFER OR SOLICITATION.
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN
EXAMINATION OF HANOVER COMPRESSOR COMPANY (THE "COMPANY"), ITS MANAGEMENT AND
THE TERMS OF THIS OFFERING, INCLUDING THE MERITS AND RISKS THEREOF. THE COMMON
STOCK HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION (THE "COMMISSION") NOR HAS THE COMMISSION PASSED UPON THE FAIRNESS OR
MERITS OF AN INVESTMENT IN THE COMMON STOCK, NOR UPON THE ACCURACY OR ADEQUACY
OF THE INFORMATION CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE, THE INFORMATION CONTAINED HEREIN IS LESS
DETAILED AND COMPLETE THAN AN INVESTOR WOULD RECEIVE IF THE COMMON STOCK WERE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR IF AN
ALTERNATIVE EXEMPTION FROM SUCH REGISTRATION WERE RELIED UPON.
THE COMMON STOCK IS SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE
AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED HEREUNDER AND PURSUANT
TO THAT CERTAIN FORM OF STOCKHOLDERS' AGREEMENT, ATTACKED HERETO AS EXHIBIT A
(THE "STOCKHOLDERS' AGREEMENT"). INVESTORS SHOULD BE AWARE THAT THEY WILL BE
REQUIRED TO BEAR THE FINANCIAL RISK OF HIS OR ITS INVESTMENT FOR AN INDEFINITE
PERIOD OF TIME.
THIS AGREEMENT is made and entered into as of _________, _______, 1992 by
and among the party set forth on the signature page hereto (the "Investor") and
the Company.
WITNESSETH:
WHEREAS, the Company is a corporation organized under the laws of the State
of Delaware and is engaged in the business of selling, leasing, maintaining and
refurbishing compressors (the "Compressors") utilized by the natural gas
industry;
WHEREAS, the Company desires to offer (the "Offering") an aggregate of
22,884 shares of its Common Stock, $.01 par value (the "Common Stock") to
certain qualified subscribers, of which it is anticipated that 1525.6 shares of
such Common Stock will be
purchased by the Company's management and 6102.4 shares will be purchased by
Hanover Energy Inc. ("HEI"), as hereinafter set forth;
WHEREAS, the Offering will terminate on April 1, 1992 or such subsequent
date, not later than April 20, 1992, as the Company may determine, in its sole
and absolute discretion, and without notice to or the consent of any Investor
(the "Termination Date"), unless the company shall have accepted subscriptions
for all of the shares of common Stock offered pursuant to the Offering and shall
have renegotiated the terms and conditions of its existing indebtedness extended
by Manufacturers Hanover (the "MH Indebtedness"), on terms not materially less
favorable than the terms (the "Minimum Financing Terms") described under the
heading "Recent Developments" contained in Exhibit B attached hereto, in each
case prior to such date;
WHEREAS, certain affiliates of the Company reserve the right to purchase
any unsold shares of Common Stock offered hereby for their own account. Such
Common Stock, if acquired by an affiliate of the Company, will be acquired on
the same terms as the Common Stock offered hereby and will be held in accordance
with applicable law. It is a condition to the closing of the Offering that
various members of the Company's management acquire not less than $1,000,000 of
the Common Stock (the "Management Stock") offered hereby. It is anticipated that
any unsold shares of Common Stock offered hereby will be acquired by either HEI,
which owns 95% of the Company's Common Stock, or by GKH Partners, L.P., a
Delaware limited partnership, or its affiliates (collectively, "GKH") which
own an aggregate of 64. 18% of the outstanding Common stock of Hanover Energy
Holding Corporation, which is the direct parent of HEI;
WHEREAS, the Investor has previously been given access to and an
opportunity to review the documents, agreements, information and reports
described in Schedule A attached hereto (the "Data");
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby acknowledge, agree and understand the
following:
THE COMMON STOCK HAS NOT BEEN REGISTERED UNDER THE ACT, NOR HAS THE COMMON
STOCK BEEN REGISTERED UNDER THE SECURITIES LAWS OF ANY STATE. THE SALE OF THE
COMMON STOCK IS BEING MADE BY THE COMPANY IN RELIANCE ON APPLICABLE EXCEPTIONS
UNDER THE ACT AND/OR THE RULES PROMULGATED THEREUNDER. AS A CONDITION TO ANY
SALE, THE COMPANY WILL BE RELYING ON CERTAIN REPRESENTATIONS AND WARRANTIES FROM
THE UNDERSIGNED AS SET FORTH IN THIS AGREEMENT TO THE EFFECT, AMONG OTHER
THINGS, THE UNDERSIGNED IS ACQUIRING HIS OR ITS COMMON STOCK SOLELY FOR HIS OR
ITS OWN ACCOUNT AND NOT WITH A VIEW TOWARD DISTRIBUTION OR FRACTIONALIZATION.
THERE IS NO PUBLIC OR OTHER MARKET FOR THE COMMON STOCK NOR IS SUCH MARKET
LIKELY TO DEVELOP. TRANSFER OF THE COMMON
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STOCK IS SPECIFICALLY RESTRICTED UNDER THIS SUBSCRIPTION AGREEMENT AND THE
STOCKHOLDERS' AGREEMENT. THE INVESTOR HAS NO RIGHT TO REQUIRE THE COMPANY TO
REGISTER HIS OR ITS COMMON STOCK UNDER THE ACTS FOR THESE REASONS THE
UNDERSIGNED WILL BE REQUIRED TO RETAIN OWNERSHIP OF HIS OR ITS COMMON STOCK AND
BEAR THE ECONOMIC RISK OF HIS OR ITS INVESTMENT FOR AN INDEFINITE PERIOD.
THE UNDERSIGNED SHOULD NOT CONSTRUE THE CONTENTS OF THIS AGREEMENT OR ANY
COMMUNICATION, WHETHER WRITTEN OR ORAL, FROM THE COMPANY, ITS OFFICERS,
DIRECTORS, COUNSEL OR AGENTS, AS LEGAL, TAX OR BUSINESS ADVICE, AND SHOULD
CONSULT HIS OR ITS OWN LEGAL COUNSEL, ACCOUNTANTS AND OTHER PROFESSIONAL
ADVISORS AS TO LEGAL, TAX, ACCOUNTING AND RELATED MATTERS CONCERNING HIS OR ITS
INVESTMENT.
INVESTMENT IN THE COMMON STOCK IS SPECULATIVE AND INVOLVES A HIGH DEGREE OF
RISK. THIS INVESTMENT IS SUITABLE ONLY FOR PERSONS WHO CAN AFFORD TO LOSE THEIR
ENTIRE INVESTMENT.
THE COMPANY RESERVES THE RIGHT TO REJECT ANY SUBSCRIPTION MADE HEREUNDER IN
ITS ABSOLUTE DISCRETION AND FOR WHATEVER REASON.
1. Subscription. The Investor hereby irrevocably subscribes for the
number of shares of Common Stock set forth on the signature page of this
Subscription Agreement under the terms and conditions set forth below. The
Investor agrees to pay to the Company the sum set forth on the signature page as
the purchase price for the Common Stock subscribed for.
Subject to the terms and conditions hereof, the Investor hereby tenders two
executed copies of this Agreement, two executed copies of the Stockholders'
Agreement, a completed Form W-9 and a certified or cashier's check made payable
to the order of "Hanover Compressor Company" or other immediately available
funds (the "Funds") in an amount equal to $655.48 multiplied by the number of
shares of Common Stock subscribed for. The Company's acceptance hereof shall be
deemed acknowledgment of its receipt of such Funds and documents.
The Funds shall be promptly deposited in an interest bearing, segregated
account and such Funds may be invested in treasury bills or other cash
equivalents, as determined in the sole and absolute discretion of the Company.
If acceptable subscriptions for all of the shares of Common Stock offered hereby
are received prior to the Termination Date, if the Management Stock is
subscribed for and if a binding agreement amending the MH Indebtedness on terms
not materially less favorable than the Minimum Financing Terms has been entered
into prior to the Termination Date (together, the "Offering Conditions"), all
subscriptions will be transferred from the segregated bank account to the
Company, together with all income, if any, earned thereon. In the event the
Offering Conditions have not been satisfied in full prior to the Termination
Date, the offering will be terminated and all funds will be returned to
Investors with a pro rata share of
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interest earned thereon, calculated on the basis of the amount of Funds invested
by the Investor and the length of time interest on such Funds was earned.
2. Representation and Warranties of the Investor. The Investor hereby
represents and warrants to the Company as follows:
(a) The undersigned or his or its designated agents or consultants (the
"Representatives") have carefully reviewed, are familiar with and understand the
Data, the Stockholders' Agreement and Exhibit B attached hereto entitled "Recent
Company Developments," and confirm that the Data provided complies in full with
the description thereof set forth on Schedule A attached hereto.
(b) All documents, records and books pertaining to an investment in the
Company and requested by him or it have been made available or delivered to him
or it, subject to the terms and conditions of that certain Confidentiality
Agreement, previously executed by the Investor (the "Confidentiality
Agreement"). The undersigned or his or its Representatives have had an
opportunity to ask questions of and receive answers from the Company concerning
the terms and conditions of his or its investment and the financial condition,
operations and prospects of the Company. No statement, printed material or
inducement given or made by the Company or any of its affiliates, agents or
representatives is contrary to the information contained herein or contained in
the Data and the undersigned acknowledges and agrees that the undersigned has
relied solely on the Data in connection with his or its decision to acquire the
Common Stock. In addition, the undersigned acknowledges that in reliance upon
certain state and federal securities law exemptions, the Investor is receiving
less information than the undersigned would have received if an information
memorandum complying with Rule 502 (b) (2) of Regulation D promulgated pursuant
to the Act had been prepared and made available to him or it or if the Common
Stock had been registered pursuant to the Act.
(c) The undersigned: (i) has adequate means of providing for his or its
current needs and possible personal contingencies and has no need for liquidity
in his or its Common Stock; (ii) can bear the economic risk of losing his or its
entire investment therein; (iii) has, or in the case of a entity Investor, the
person making the decision to invest in the Common Stock has such knowledge and
experience in financial matters that he is capable of evaluating the relative
risks and merits of this investment; (iv) is, or in the case of a entity
Investor, the person making the decision to invest in the Common Stock is
familiar with the nature of, and risks attendant, investment in the Common Stock
and the natural gas compressor industry generally; and (v) has, or in the case
of a entity Investor, the person making the decision to invest in the Common
Stock has determined that the purchase of such Common Stock is consistent with
his or its financial objectives.
(d) The undersigned is an "accredited investor" as set forth on Schedule B
hereto.
(e) The address set forth below is the undersigned's true and correct
residence (or, if an entity, its principal business address), and the
undersigned has no present intention of becoming a domiciliary of any other
state or jurisdiction. If the undersigned is an individual, he
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is registered to vote in, and/or is the holder of a current driver's license
issued by, the state of his residence as set forth below.
(f) The undersigned acknowledges that the Common Stock will be sold (i)
pursuant to the applicable exemptions from registration under the securities
laws of certain states and (ii) that the Common Stock has not been registered
under the Act in reliance upon exemptions from registration provided thereunder
and, in connection therewith, the undersigned hereby covenants and agrees that
the undersigned will not offer, sell or otherwise transfer the Common Stock
except in accordance with this Agreement and with the terms and conditions of
the Stockholders' Agreement. The undersigned further agrees the Common Stock
will not be transferable (except in accordance with the procedures set forth in
the Stockholders' Agreement) without the prior written consent of the Company.
The undersigned understands and agrees that the Company will not consent to a
transfer of the Common Stock unless the transferee meets the financial and other
suitability standards required of an initial subscriber or unless such
conditions are waived by the Company in its sole discretion. The Company its
sole and absolute discretion, require the Investor to an opinion reasonably may,
in deliver of counsel (from a law firm and in form and substance satisfactory to
the Company) to the effect that any such transfer is exempt from the
registration requirements of the Act. The undersigned further understands that
the Company is under no obligation to register the Common Stock on his or its
behalf, to assist him or it in complying with any exemption from registration or
to consent to the transfer thereof.
(g) The Common Stock for which the undersigned hereby subscribes is being
acquired solely for his or its own account, for investment purposes only, and is
not being purchased with a view to or for the resale, distribution, subdivision
or fractionalization thereof; the undersigned has no present plans to enter into
any such contract, undertaking, agreement or arrangement. The undersigned has no
reason to anticipate any change in his or its circumstances, financial or
otherwise, which may cause or require any sale or disposition by him or it of
any of the Common Stock subscribed for. In order to induce the Company to issue
and sell the Common Stock subscribed for hereby to the undersigned Investor, it
is agreed that the Company will have no obligation to recognize the ownership,
beneficial or otherwise, of such Common Stock by anyone but the undersigned
Investor.
(h) This Agreement has been duly and validly executed and delivered by the
undersigned and constitutes the valid and binding obligation of the Investor
enforceable in accordance with its terms. If the undersigned is a corporation,
partnership, trust or other entity, the undersigned represents and warrants that
it is authorized and otherwise duly qualified to purchase and hold the Common
Stock, and such entity has not been formed for the specific purpose of acquiring
the Common Stock unless (in the case of a partnership or corporation) all of its
equity owners qualify as accredited individual investors under the standards set
forth in Schedule B hereto.
(i) All information which the undersigned has provided to the Company
concerning himself, his financial position and his knowledge of financial and
business matters, or in the case of a corporation, partnership, trust or other
entity, the information concerning the person making the investment decision on
behalf of such entity, including all information contained herein, is
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true, correct and complete as of the date set forth at the end hereof, and if
there should be any change in such information prior to this subscription being
accepted, the undersigned will immediately provide the Company with such
information.
(j) The undersigned obtained knowledge of this investment by personal
contact with an officer, director, shareholder, affiliate or agent of the
Company.
(k) None of the following has ever been represented, guaranteed or
warranted to him or it by the Company:
(i) that the Company will be profitable or that the undersigned will
realize tax benefits in connection with an investment in the Company, or
that the undersigned will realize profits or losses, as a result of his or
its investment in the Company; or
(ii) that the past performance or experience on the part of any
officer, director, shareholder, employee, agent or affiliate thereof, or
any employee, agent or affiliate of the Company will in any way indicate
the predictable results of ownership of Common Stock or of the overall
venture.
(1) The undersigned acknowledges, is aware of and understands the following
certain specific risks, which risks do not constitute an exhaustive delineation
of all material risks attendant an investment in the Company:
(i) Natural Gas Compressor Industry Considerations. The Company's
profitability is, in part, dependent upon the current market for natural
gas. Since 1982, there has been an over-supply of natural gas and,
consequently, prices have declined significantly and remain at relatively
low levels. In general, future prices of natural gas are dependent upon
numerous factors beyond the control of the company, including competition,
conservation efforts and various economic, political and regulatory
developments. The current unsettled energy market, highlighted by recent
political events in the Middle East and elsewhere, make it particularly
difficult to estimate future prices of natural gas. Although declines in
natural gas prices tend to decrease efforts to discover and develop new
natural gas reserves, thus placing greater reliance upon older, developed
natural gas reserves (which reliance requires additional compression in
order to deliver the remaining natural gas reserves to market) a
significant decline in the price of natural gas could result in the
widespread failure of natural gas producers and would likely have a
material adverse effect on the Company's financial condition and results of
operation.
(ii) Potential Liability and Insurance. Natural gas operations are
subject to certain risks, including explosions, uncontrollable flows of gas
or well fluids, fires, pollution and other environmental risks. These risks
could expose the Company to substantial liability for injury and loss of
life, property damage, pollution and other environmental damages, and
consequential damages, if such damages resulted from a Compressor defect or
from the Company's negligence in maintaining, servicing or refurbishing its
Compressors.
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Although the Company has obtained certain insurance, as described in
greater detail in the Data, no assurance can be given that such insurance
is adequate to cover the Company's intended operations, will be generally
available in the future or, if available, that premiums will be reasonable.
If the Company were to incur a substantial liability and such damages were
not covered by insurance or were in excess of policy limits, or if the
Company were to incur such liability at a time when it is no longer able to
obtain liability insurance, its financial condition could be materially
adversely affected. The Company, consistent with industry trends, may find
it difficult to obtain adequate insurance coverage against possible
liabilities that may be incurred in connection with the conduct of its
business. There can be no assurance that all possible types of liabilities
that may be incurred by the Company will be covered by its insurance or
that the dollar amount of such liabilities will not exceed the Company's
policy limits. A partially or completely uninsured claim, if successful
and of sufficient magnitude, could have a materially adverse effect on the
Company and its financial condition.
(iii) Additional Environmental Liability Risks. In addition to
liability which may arise as a result of an alleged Compressor defect or
Company negligence, if environmental damage is found to have occurred as a
result of the Company's operating activities, the Company could incur
substantial liability. In such event, the Company may be liable for all
costs of remediation, as well as certain other costs. Under the
Comprehensive Response, Compensation and Liability Act ("CERCLA"), the
Company may also be liable for all costs of remediation of any property
which it is deemed to be the owner or operator. Various Preliminary
Environmental (Phase I) Site Assessments have been conducted with respect
to certain properties owned by various subsidiaries of the Company. Such
Assessments have identified potential sources of ground contamination.
Although remediation efforts have been undertaken by the Company, investors
are strongly urged to carefully review such Assessments which are included
in the Data.
(iv) Restrictions Imposed by the Terms of the Company's Indebtedness.
The terms of the Company's existing indebtedness impose a variety of
restrictions on the Company's operations including, without limitation,
limiting the Company's ability to incur additional indebtedness, dispose of
its assets and extend guarantees. Such restrictions may limit the Company's
ability to fully exploit business opportunities. In addition, under the
terms of its existing indebtedness, the Company may not declare or pay any
dividend or make any payment for the purchase, redemption or acquisition of
any shares of Common Stock. While the Company's receipt of minimum
Financing Terms not materially less favorable than the terms described
under the heading "Recent Developments" is a condition to the Offering, the
Company's management and not an independent third party will determine, in
its sole reasonable discretion, whether the conditions to the release of
subscription funds shall have been satisfied. Deviations from financing
terms described under the heading "Recent Developments" which the Company
does not in its sole discretion xxxx material, will not provide a basis for
a return of subscription funds.
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(v) Control by Principal Stockholders. As of March 1, 1992,
approximately 95% of the Company's outstanding Common Stock was owned by
HEI. Concurrently with the Offering, HEI, GKH, certain affiliates of HEI
and various members of the Company's management have been given the
opportunity to subscribe for this Offering. It is anticipated that any
shares not acquired as a result of this Offering will be acquired either by
HEI or GKH. As a result of such ownership and certain agreements under the
Agreement, such persons will have the power to appoint not less than a
majority of the members of the Company's Board of Directors and thereby
control the operations, management and policies of the Company.
(vi) Factors Affecting Projections. The Company's projected financial
statements for the years 1992 through 1995 (the "Projections") included in
the Data were prepared by management of the Company in the ordinary course
and are based, in part, on assumptions concerning facts and events over
which the Company will have no control, and which could, if they change,
produce results significantly different from those set forth in the
Projections. Furthermore, such assumptions have not been reviewed by an
independent third party. There can be no assurance that the actual results
of operations will be comparable to those set forth in the Projections.
Investors are cautioned against undue reliance on the Projections and are
strongly urged to carefully scrutinize the assumptions upon which such
Projections are based.
(vii) Guarantee of Funds Used to Acquire Management Stock. It is a
condition to the closing of this Offering that an aggregate of $1,000,000
of the Common Stock will be purchased by certain members of the Company's
management team. It is anticipated that any such acquisition may be
financed through certain third party loans, 50% of the principal amount of
which would be guaranteed by the Company. Were such officers to default on
such loans, the Company would be required to repay a portion of such
amounts pursuant to its guarantee. The Projections assume that no default
shall occur with respect to such loans.
(viii) Transition of Management. Prior to October 1991, the
Company's Chief Executive Officer was Xxxxxxx Xxxxxxx and its Vice
President - Financial was Xxxxxx Xxxxxxxx. Messrs. XxXxxx and Bedrich, the
current Chief Executive officer and Chief Financial officer, respectively,
of the Company, assumed their respective positions in October, 1991 and
November, 1992. Although Xx. XxXxxx served in various capacities for the
Company since 1990, including as Chief Operating officer thereof, and
although both Messrs. Bedrich and XxXxxx have extensive management
experience generally, Messrs. XxXxxx and Bedrich have served only briefly
in their current respective positions.
(m) The undersigned acknowledges, and is aware of and understands the
following intended uses for the proceeds of the Offering:
(i) Approximately $5,000,000 of the proceeds will be used to repay a
portion of the MH Indebtedness. Such repayment will permit the Company to
avoid technical
8
defaults of various financial covenants under documents relating to the MH
Indebtedness and obtain the Minimum Financing Terms.
(ii) Approximately $1,400,000 of the proceeds will be used to pay
existing accounts payable of the Company in order to establish the level of
trade support necessary to maintain the Company's current level of business
activity as well as projected growth.
(iii) Approximately $8,500,000 of the proceeds will be used for
general corporate purposes, including the purchase of additional natural
gas compressors, if such purchases are economically justified. While such
purchases, if any, should allow the Company to capitalize upon economies of
scale, no assurance can be given that demand for the Company's products and
services will be sufficient to justify any such acquisitions.
3. Irrevocability of this Agreement. Except as otherwise provided under
applicable law, the Investor agrees that the undersigned shall not cancel,
terminate or revoke this subscription Agreement and that this Subscription
Agreement shall survive the death, incapacity or disability of the Investor.
4. Indemnification. The Investor agrees to indemnify and hold harmless
the Company and anyone acting on his or its behalf from and against all damages,
losses, costs and expenses (including reasonable attorneys' fees) which may be
incurred by reason of the failure of the Investor to fulfill any of the terms
and conditions of this Subscription Agreement, or by reason of any breach of the
representations and warranties made by the Investor herein.
5. Miscellaneous.
(a) Notices to the Company. All notices or other communications given or
made hereunder shall be in writing and shall be delivered or mailed by
registered or certified mail, return receipt requested, postage prepaid, to the
Investor at his or its address set forth below and to Hanover Compressor
Company, 0000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention:
Xxxxxx Xxxxxxx.
(b) Effect and Interpretation. Notwithstanding the place where this
Agreement may be executed by any of the parties hereto, the parties expressly
agree that all terms and provisions hereof shall be construed in accordance with
and governed by the laws of the State of Delaware without regard to the
conflicts of laws provisions thereof.
(c) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof any may be
amended only by a writing executed by all parties. This Agreement, and the
information contained herein expressly supersedes all understandings and
agreements of the parties (other than the Confidentiality Agreement which shall
survive execution hereof to the extent set forth therein), whether written or
oral, between the parties with respect to the subject matter hereof.
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(d) Successors. This Subscription Agreement and all the terms and
provisions hereof shall be binding upon and shall inure to the benefit of the
parties hereto, and their respective heirs, legal representatives, successors
and assigns.
(e) Severability. In the event any one or more of the provisions contained
herein shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Subscription Agreement, but this Subscription
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
(f) Certain Tax Matters. Under Sections 1441 and 1442 of the Internal
Revenue Code, as amended, a corporation, partnership, trust or estate must
withhold tax with respect to certain transfers of property if a holder of the
interest in the entity is a foreign person. To inform the Company that no
withholding is required with respect to any distribution upon any shares of
Common Stock, the undersigned hereby certifies as follows: (1) the undersigned
is not a non-resident alien for purposes of U.S. income taxation; (2) his or its
social security number is as set forth on the signature page; and (3) his or its
home address is as set forth an the signature page. The Investor understands
under penalties of perjury that this certification may be disclosed to the
Internal Revenue Service and that any false statement which the Undersigned has
made here could be punished by fine, imprisonment or both.
The Investor has completed and submitted herewith a Form W-9 relative to
the Investor's taxpayer identification number and other matters and does hereby
represent and warrant that such form is complete, true and correct.
(g) Counterparts. This Subscription Agreement may be executed
simultaneously in one or more counterparts each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this Subscription Agreement
as of the date first above written.
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Residence Address
or if an Entity Investor,
address of principal Total
Signature(s) executive offices Subscription
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(If signing in a
representative capacity,
please indicate nature
of such capacity)
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$
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10
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$
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Mailing Address Tax I.D. or Social
Please Print Name(s) If Different Security No. (s)
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Date: __________________, 1992.
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Phone:
(1) Office:______________ Ext. ______
Home:________________
(2) Office:______________ Ext. ______
Home:________________
___ Individual ____ Joint Tenants with _____ Corporation
Right Survivorship
(Both Parties Sign) Date Formed:
_____________
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___ Tenants in Common _____ Partnership No.
(Both Parties Sign) of Partners
_____________
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___ Community Property _____ Trust (___ Revocable)
(Both Parties Sign) (___ Irrevocable)
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_____ Other (specify)
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(Individual Form)
STATE OF )
)
COUNTY OF )
I, _______________, a Notary Public in and for said County, in the State
aforesaid, do hereby certify that the person whose name is subscribed to above
appeared before me this day in person, and acknowledged and swore that he signed
and delivered the said instrument as his or its respective free and voluntary
act and deed for the uses and purposes therein set forth, and that the
statements contained therein are true.
Given under my hand and notarial seal as of the ____ day of
________________, 1992.
My commission expires:
__________________________ ________________________________
Notary Public
(Entity Form)
STATE OF )
)
COUNTY OF )
I, ______________________________________, a Notary Public in and for said
County, in the State aforesaid: do hereby certify that the person whose name is
subscribed to above, known to me to be the _____________________ of
____________________________ of (a corporation, partnership, limited
partnership, (other), appeared before me this day in person, and acknowledged
and swore that he signed and delivered the said instruments on behalf of said
entity for the uses and purposes therein set forth, and that the statements
contained therein are true.
Give under my hand and notarial seal as of the ____________ day of
______________, 1992.
My commission expires:
__________________________ ________________________________
Notary Public
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ACCEPTANCE
The undersigned hereby accepts the foregoing subscription this ____ day of
__________, 1992. This subscription shall not be binding until accepted by
Hanover Compressor Company and shall become effective as of the date of such
acceptance.
HANOVER COMPRESSOR COMPANY
By: _____________________________________
Its: ____________________________________
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EXHIBIT
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS" AGREEMENT (the "Agreement") is made and entered into as
of _______________________, 1992 by and among HANOVER COMPRESSOR COMPANY, a
Delaware corporation (the "Company"), HANOVER ENERGY INC., a Texas corporation
("HEI"), and the other persons set forth on the signature pages hereof.
WHEREAS, the Company is authorized to issue 200,000 shares of common stock,
$.01 par value (the "Common Stock") and 100,000 shares of series A preferred
stock, $.01 par value (the "Preferred Stock");
WHEREAS, the parties hereto are stockholders (the "Stockholders") of the
Company and each owns the number of shares of Common Stock set forth opposite
his name on the signature page;
WHEREAS, the parties hereto wish to provide for the containment of
ownership of their shares of Common Stock amongst themselves and certain other
persons upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.01 Definitions. Except as otherwise herein expressly provided, the
following terms and phrases shall have the meanings set forth below:
"Affiliate" shall mean any Person who or which, directly or
indirectly, through one or more intermediaries, controls or is
controlled by, or is under common control with, any specified Person
(the term "control" for these purposes meaning the ability, whether by
ownership of shares or other equity interests, by contract or otherwise,
to elect a majority of the directors of a corporation, to select the
managing or general partner of a partnership, or otherwise to select, or
have the power to remove and then select, a majority of those persons
exercising governing authority over an entity, and, without limiting the
generality of the foregoing, shall conclusively be presumed in the case
of ownership of fifty percent (50%) or more of the equity interests of
such entity) and their Immediate Family. With respect to any Person
which is a trust, the term "Affiliate" shall mean the grantor of such
trust and the Immediate Family of the Person who is the grantor of such
trust and/or another trust for the benefit of such Person and/or such
Person's Immediate Family. No Party to this Agreement will be deemed to
be an Affiliate of another party hereto solely because they are
Stockholders.
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"Company Notice" shall have the meaning set forth in Section
3.01 hereof.
"Company Option" shall have the meaning set forth in Section
3.02 hereof.
"Company Option Period" shall have the meaning set forth in
Section 3.02 hereof.
"Divorce Transfer" shall mean, as to any Stockholder, the
execution by such Stockholder of a property settlement agreement, or the
entry of a final order of a court against such Stockholder from, which
there is no further right of appeal, in respect of a divorce or
dissolution of marriage proceeding, the effect of which is to grant
rights to all or any part of the Shares owned by such Stockholder to any
Person other than such Stockholder.
"Fair Market Value" shall mean, with respect to any Shares, that
price at which parties dealing at arm's length and without any
compulsion or duress to either purchase or sell such Shares would agree
to purchase and sell such Shares. In the event that the relevant parties
are unable to agree as to "Fair Market Value," Fair Market Value shall
be determined by an appraisal conducted by an appraiser acceptable to
the relevant parties. Such appraiser shall be experienced in making
appraisals of businesses or assets similar to those of the Company. Such
appraisal shall be final and binding upon the parties hereto and the
cost for such appraisal shall be borne equally by the parties in
dispute.
"Immediate Family" shall mean, with respect to any individual,
the spouse, parents or children of such individual (regardless of
whether legally adopted or biological).
"Insolvency" shall mean, with respect to any Person, (a) the
filing by such Person of any proceeding in bankruptcy or
reorganization, (b) the making of an assignment for the benefit of
creditors, (c) the failing to vacate, discharge or dismiss within sixty
(60) days of its initiation either (i) the filing of a proceeding in
bankruptcy against such Person or (ii) the appointment of a receiver or
trustee for all or any part of his or its assets or property or (d) the
attachment or levy, or attempted attachment or levy, against any Shares.
"Involuntarily offered shares" shall mean the following:
(a) if the offer Event results from the Insolvency or
death of, or the Unpermitted Transfer or attempted Unpermitted
Transfer of Shares by, a Stockholder, all of the Shares owned by
such Stockholder and, to the extent affected by a Permitted
Transferor's Insolvency, all or such affected portion of such
Permitted Transfer Shares; and
(b) if the Offer Event results from a Divorce Transfer,
all of the Shares subject to such Divorce Transfer.
"Legal Representative" shall mean and include any Person
empowered or entitled to act with respect to the property of any
Stockholder, including, but not limited to, any executors,
administrators, trustees or conservators of any insolvent, dissolved,
deceased or legally incompetent Stockholder.
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"Offer" shall have the meaning set forth in Section 3.01 hereof.
"Offer Event" shall mean any of the following:
(a) the Insolvency of a Stockholder or a Permitted
Transferor (other than a Significant Stockholder) where, under
applicable law, such Permitted Transferor's Insolvency affects
the Permitted Transfer Shares;
(b) any Unpermitted Transfer or attempted Unpermitted
Transfer of Shares by a Stockholder;
(c) the death of a natural Stockholder; or
(d) a Divorce Transfer relative to Shares.
"Offer Event Notice" shall have the meaning set forth in Section
4.01 hereof.
"Offering Stockholder" shall have the meaning set forth in
Section 3.01 hereof.
"Permitted Transfer Shares" shall have the meaning set forth in
Section 2.02 hereof.
"Permitted Transferee" shall mean, with respect to any
Stockholder, (a) an Affiliate of a Stockholder, (b) one or more members
of such Stockholder's Immediate Family, (c) a trust for the benefit of
such Stockholder and/or one or more members of such Stockholder's
Immediate Family and (d) the beneficiary of such Stockholder where such
Stockholder is a trust or one or more members of such beneficiary's
Immediate Family.
"Permitted Transferor" shall mean any Stockholder who transfers
all or a portion of his or its Shares to a Permitted Transferee pursuant
to the terms of subsection (a) of Section 2.02 hereof.
"Person" shall mean any individual, partnership, corporation,
trust, business association or other entity.
"Proposed Voluntary Transfer Consideration" shall have the
meaning set forth in Section 3.01 hereof.
"Purchase Price" shall have the meaning set forth in Section
5.01 hereof.
"Shares" shall mean any or all shares of Common Stock of the
Company outstanding from time to time and owned by the Stockholders.
"Significant Stockholder" shall mean any Stockholder which
directly or through its Affiliates owns greater than fifty percent (50%)
of the Shares.
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"Stockholder" shall mean each of the parties hereto and any
Persons to whom such Persons transfer their Shares pursuant to the terms
hereof or otherwise and who are bound by the provisions hereof.
"Stockholder Notice" shall have the meaning set forth in Section
3.02 hereof.
"Stockholder Option" shall have the meaning set forth in Section
3.03 hereof.
"Stockholder Option Period" shall have the meaning set forth in
Section 3.03 hereof.
"Third Party Purchaser" shall have the meaning set forth in
Section 3.06 hereof.
"Unpermitted Transfer" shall mean any disposition or transfer of
Shares other than in accordance with the terms and conditions of this
Agreement.
"Voluntarily Offered Shares" shall have the meaning set forth in
Section 3.01 hereof.
ARTICLE II.
DISPOSITION OF STOCK
2.01 Revocation of Earlier Agreements. This Agreement supersedes all
previous agreements made among any of the Stockholders and/or the Company,
whether written or oral, relating to the disposition of, or restrictions on the
disposition of, the Shares; and all such prior agreements are hereby revoked.
2.02 Restricted Disposition; Exceptions. No Stockholder or his or its
Legal Representative shall, directly or indirectly, voluntarily or
involuntarily, assign, sell, pledge, encumber, give or otherwise transfer,
dispose of or alienate to any Person by whatever means, any Shares now or at any
time hereafter owned by him or it except as follows:
(a) Each Stockholder shall have the right to transfer all or any
part of his or its Shares to one or more Permitted Transferees;
provided, however, that such transferred Shares (the "Permitted Transfer
Shares") shall remain subject to all of the terms and conditions of this
Agreement and such Permitted Transferee (s) shall first comply with the
provisions of Article VIII hereof;
(b) Each of the Stockholders shall have the right to transfer
all or a portion of his or its' Shares to any Person subject to the
restrictions of Article III hereof;
(c) The Shares of a Stockholder may be transferred subject to
the restrictions of Article IV hereof; and
(d) The Shares of a Significant Stockholder, together with the
Shares of his or its Permitted Transferees, may be transferred without
restriction hereunder (except for the restriction set forth in Section
3.05 hereof), but subject to applicable federal and state securities
laws.
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ARTICLE III.
OPTION UPON VOLUNTARY TRANSFER
3.01 Notice of Transfer. If a Stockholder (other than a Significant
Stockholder, which shall not, except as otherwise expressly set forth herein to
the contrary, be subject to the transfer restrictions set forth in this Article
III, but shall be entitled to participate in any sale or disposition pursuant to
Section 3.05 hereof) receives a bona fide written offer (the "Offer") from a
third party to purchase all or a portion of his or its Shares for cash (the
"Voluntarily offered Shares") and such Stockholder (the "Offering Stockholder")
desires to accept the offer, the Offering Stockholder shall give written notice
to the Company (the "Company Notice") of his or its intention to transfer the
Voluntarily Offered Shares. In addition to stating the intention to transfer the
Voluntarily Offered Shares, the Company Notice shall state (a) the name,
business address and residence address of the proposed transferee, (b) the
amount of the consideration to be paid (the "Proposed Voluntary Transfer
Consideration"), and (c) any material terms of the sale. The Company Notice
shall not be effective unless accompanied by a copy of the offer.
3.02 Company Option to Purchase. The Company shall have the option (the
"Company Option"), exercisable within fifteen (15) days of the date that the
Company Notice is deemed given hereunder (the "Company Option Period", to
purchase all or a portion of the Voluntarily Offered Shares upon the terms and
conditions set forth in Article V hereof. In the event that the Company desires
to exercise its Company Option, it shall promptly, but in no event later than
immediately prior to the expiration of the Company option Period, deliver
written notice of the same to the Offering Stockholder stating the number of
Voluntarily Offered Shares that it is willing to purchase pursuant to the
Company Option. In the event that the Company shall not elect to so purchase all
of the Voluntarily offered Shares, the Company shall promptly, but in no event
later than immediately prior to the expiration of the Company Option Period,
deliver written notice (the "Stockholder Notice") to the remaining
Stockholders of the number of Voluntarily Offered Shares that the Company does
not desire to purchase pursuant to the Company Option and a copy of the Company
Notice.
3.03 Stockholder Option to Purchase.
(a) In the event that the Company does not elect to purchase all of the
Voluntarily Offered Shares pursuant to the Company Option, each Stockholder
(other than the Offering Stockholder) shall have the option (the "Stockholder
Option"), exercisable within fifteen (15) days of the date that the Stockholder
Notice is deemed given hereunder (the "Stockholder Option Period"), to purchase,
upon the terms and conditions set forth in Article V hereof, that proportion of
the balance of the Voluntarily Offered Shares that equals a fraction, the
numerator of which is equal to the number of shares of stock of the Company
owned by such Stockholder at the time that the Stockholder Notice is deemed
given hereunder and the denominator of which is equal to the total number of
shares then owned by all of the Stockholders other than the Offering
Stockholder. Each Stockholder desiring to exercise his or its Stockholder Option
shall promptly, but in no event later than immediately prior to the expiration
of the Stockholder
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Option Period, deliver written notice to the Offering Stockholder stating the
number of Voluntarily Offered Shares that such Stockholder is willing to
purchase pursuant to the Stockholder Option.
(b) Within five (5) days after the Offering Stockholder has determined
which of the other Stockholders have elected to exercise the Stockholder Option,
the Offering Stockholder shall deliver a notice to each of the other
Stockholders indicating which other Stockholders have elected to purchase their
pro rata share of the Voluntarily Offered Shares and whether any of the other
Stockholders have declined their option to purchase their respective pro rata
share thereof and in the event that one or more other Stockholders have declined
to exercise such Stockholder Option, then the Offering Stockholder shall
pursuant to such notice grant to each Stockholder who or which has so elected to
purchase all of his or its pro rata share of the Voluntarily offered Shares the
additional right and option, but not the obligation, to purchase such amounts of
the remaining Voluntarily Offered Shares as may be mutually agreed upon by or
among such Stockholders, as the case may be, and in the event the Stockholders
are unable to agree as to such amount, each such Stockholder may purchase its
respective pro rata share (determined on a fully diluted basis) with respect to
the number of Shares of the Company held by each other Stockholder who or which
has exercised the Stockholder Option. Any Voluntarily Offered shares remaining
unpurchased under this Section 3.03(b) due to any such Stockholder electing to
purchase less than his or its respective pro rata share of such Voluntarily
Offered Shares may be purchased by the other exercising Stockholder(s) in such
amounts as may be mutually agreed. Each recipient of such additional Stockholder
Option may exercise the same by delivering to the Offering Stockholder written
notice to such effect within five (5) days of the Offering Stockholder's
delivery of notice granting such additional Stockholder Option. A Stockholder's
response to such additional Stockholder Option shall be final, binding and
conclusive as to such Stockholder.
3.04 Forfeiture of Options. If, at the expiration of the last applicable
option period, the eligible Persons have not elected to purchase all of the
Voluntarily Offered Shares, then and in such event all of the options shall be
deemed to have been unexercised, and the Offering Stockholder shall, subject to
Section 3.05 hereof, have the right to sell all of the Voluntarily offered
Shares to the party named in the Offer so long as (a) such sale is consummated
within sixty (60) days after the expiration of the last applicable option
period; (b) such sale is made strictly upon the terms set forth in the Offer and
none other; and (c) the proposed transferee agrees, in writing, prior to such
transfer, to be bound by the terms of this Agreement.
3.05 Rights of Inclusion. Notwithstanding anything to the contrary
contained herein, in the event one or more Stockholders propose to sell or
otherwise dispose of more than fifty percent (50%) of the outstanding Shares of
Common Stock pursuant to an Offer and in the event at the expiration of the last
applicable option period eligible Persons have not elected to purchase all of
the Voluntarily Offered Shares (if applicable), then in such event each
Stockholder shall have the right to sell, pursuant to the Offer, the number of
Shares of Common Stock equal to the product of (x) the total number of Shares to
be acquired pursuant to the offer, multiplied by (y) a
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fraction, the numerator of which shall be the total number of Shares of Common
Stock owned by such Stockholder, and the denominator of which shall be the total
number of Shares of Common Stock then outstanding; provided that the rights of
inclusion set forth in this Section 3.05 shall be applicable to those Shares of
Common Stock issued pursuant to the exercise of options granted under that
certain Hanover Compressor Company Stock Compensation Plan, including with
respect to those options which become exercisable pursuant to Section 4.1
thereof, on the same terms as are set forth in this Section 3.65. Such sale
shall occur on the terms and conditions set forth in the Offer. Simultaneously
with the consummation of such sale or other disposition of the Shares, the
Offering Stockholder shall remit to each Stockholder electing to sell pursuant
to this Section 3.05, the total sales price of the Shares of Common Stock sold
by such Stockholder and shall furnish such other evidence of completion of such
sale or other disposition and the terms thereof, as may be reasonably requested
by such Stockholder. Absent intentional misconduct or gross negligence on the
part of the offering Stockholder, the offering Stockholder shall have no
liability to any Stockholder with respect to the good faith allocation of
purchase price among Stockholders pursuant to the terms hereof. The right of a
Stockholder to participate in any sale or disposition of Common Stock pursuant
to this Section 3.05 shall be exercisable for a period of ten (10) days
following written notice thereof given by the Offering Stockholder and may be
exercised only by written notice to such effect. In the event any Stockholder
has not given the Offering Stockholder written notice of his or its desire to
participate in such sale within such ten (10) day period, such Stockholder will
be deemed to have waived any and all of his or its rights with respect to such
sale and the Offering Stockholder shall be entitled to sell all of the
Voluntarily Offered Shares to the party named in the offer on the terms set
forth in Section 3.04 hereof.
The provisions of this Section 3.05 shall not be applicable to any transfer
of Common Stock: (1) to any Permitted Transferee; (2) pursuant to an effective
registration statement under the Securities Act of 1933, as amended, or (3)
pursuant to Rule 144 or Rule 144A or any similar provisions then in effect.
3.06 Right to Compel Sale. In the event one or more Stockholders owning
more than fifty percent (50%) of the Shares propose to sell or otherwise dispose
of (including by means of a merger or stock-for-stock exchange) all of its or
their respective Shares of Common Stock pursuant to an Offer, then in addition
to the right of the remaining Stockholders to, under certain circumstances,
participate in such sale pursuant to the provisions of Section 3.05 hereof, the
Offering Stockholder may, at its option, require the remaining Stockholders to
sell or otherwise dispose of (and to vote their Shares of Common Stock in favor
of such transaction, to the extent required) all Shares of Common Stock hold by
him or it to the party named in the Offer for the same consideration per Share
and otherwise on the same terms and conditions set forth in the Offer. In the
event the Offering Stockholder elects to compel the sale of Common Stock
pursuant to this Section 3.06, the offering Stockholder shall send written
notice to each of the remaining Stockholders, setting forth the consideration
per Share to be paid and the other terms and conditions of Offer. Within thirty
(30) days following the date such notice is given, each of the remaining
Stockholders shall deliver to the Offering Stockholder certificates evidencing
all Shares of Common Stock held by such Stockholder, duly endorsed in blank,
together with all other documents reasonably required by the offering
Stockholder, in order to consummate such
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transaction. In the event that a Stockholder shall fail to deliver such
certificates as required hereunder, the Company is hereby authorized and
directed, and the Company agrees, to immediately thereafter reflect the transfer
on its books of such Shares to the party compelling sale thereof (which party
shall be deemed for all purposes to legally own such Shares as nominee for such
Stockholder with full irrevocable power and authority to vote and dispose of
such Shares) and to remit to such Stockholder his or its respective share of the
total sales price of the Shares sold pursuant to this Section 3.06 as
hereinafter set forth. Thereafter, the Shares held by such Stockholder shall
conclusively be presumed lost and of no value.
If within 120 days after the Offering Stockholder gives notice of their
intent to compel the disposition of Shares, they have not completed the sale of
all Shares of Common Stock in accordance with the term set forth in such notice,
the Offering Stockholder shall return to each Stockholder, all certificates
evidencing such Shares of Common Stock previously delivered for sale pursuant
hereto, and all of the restrictions contained herein shall continue in effect as
if no such notice had been given.
Promptly, but in no event later than two (2) business days following the
consummation of any transaction pursuant to this Section 3.06, the Offering
Stockholder shall remit to each of the remaining Stockholders the total sales
price of the Shares of Common Stock sold pursuant to this Section 3.06, and
shall furnish such other evidence of completion as may reasonably be requested
by such Stockholders. Absent intentional misconduct or gross negligence on the
part of the offering Stockholder, such Offering Stockholder shall have no
liability to any other Stockholder with respect to the good faith allocation of
purchase price pursuant to the terms hereof.
ARTICLE IV.
OPTION UPON INVOLUNTARY OR OTHER TRANSFER
4.01 Notice of Offer Event. Promptly, but in no event later than ten
(10) days, after the occurrence of an Offer Event, the Stockholder owning the
Involuntarily offered shares, or his or its Legal Representative, shall give the
Company written notice (the "Offer Event Notice") of the occurrence of the Offer
Event.
4.02 Options to Purchase in Case of Occurrence of Offer Event. In the
event of an of an Offer Event, the Company and the Stockholders (other than the
affected Stockholder) shall have the same options to purchase the Involuntarily
Offered Shares for the same time periods (commencing on the date that the Offer
Event Notice is deemed given hereunder), in the same relative amounts and,
except as set forth in Article V hereof, upon the same terms as are set forth in
Article III hereof.
4.03 Forfeiture of Option; Transfer. In the event that the eligible
Persons do not elect to purchase all of the Involuntarily Offered Shares within
the last applicable option period, then all acceptances shall be void and the
following shall occur:
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(a) if the Offer Event results from the Insolvency of a
Stockholder or the Permitted Transferor thereof, the Involuntarily
Offered Shares shall be transferred free of the terms of this Agreement;
(b) if the Offer Event results from an Unpermitted Transfer or
attempted Unpermitted Transfer, no transfer of the Involuntarily Offered
Shares shall occur, and the Unpermitted Transfer or attempted Unpermitted
Transfer of the Involuntarily Offered Shares shall be void for all
purposes;
(c) if the offer Event is triggered by the death of a
Stockholder, the Involuntarily Offered Shares shall be transferred
pursuant to the terms and conditions of the will, trust instrument or
laws of intestate succession, as appropriate, but in any event shall
remain subject to all of the provisions and restrictions of this
Agreement; and
(d) if the Offer Event results from a Divorce Transfer, the
Involuntarily Offered Shares shall be transferred to the transferee
subject to the provisions and restrictions of this Agreement.
ARTICLE V.
TERMS OF PURCHASE
The terms of a purchase pursuant to Articles III and IV shall be as
follows:
5.01 Purchase Price. The purchase price (the "Purchase Price") shall be
as follows:
(a) in the case of any purchase pursuant to Article III hereof,
the Proposed Voluntary Transfer Consideration;
(b) in the case of any purchase pursuant to Article IV hereof
(other than in the case of an Unpermitted Transfer or attempted
Unpermitted Transfer), the Fair Market Value of the Involuntarily
Offered Shares; and
(c) in the case of any purchase following an Unpermitted
Transfer or attempted Unpermitted Transfer, fifty percent (50%) of the
Fair Market Value of the Involuntarily offered Shares.
5.02 Payment. Each purchaser shall pay his proportionate share of the
Purchase Price, payable, in the event of a purchase pursuant to Article III
hereof, on the terms set forth in the Offer. Each purchaser's proportionate
share of the Purchase Price shall equal the proportion which the number of
Shares purchased by him or it bears to the total number of Shares purchased by
all of such purchasers. Each purchaser shall be liable only for his or its
respective proportionate share of the Purchase Price.
5.03 Time and Place of Closing. The closing shall occur at the principal
office of the Company on the date which is thirty (30) days following the
expiration of the last applicable
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option period; provided, however, that in the event that an appraisal is
required pursuant to the terms hereof, the closing shall take place within
fifteen (15) days after the results of such appraisal have been delivered to the
Company or the date set forth above, whichever is later.
ARTICLE VI.
DELIVERY OF CERTIFICATES
If the Shares of any Stockholder are purchased hereunder, the selling
Stockholder (or his or its Legal Representative) shall at closing endorse in
blank and deliver to the purchaser or purchasers all instruments evidencing such
purchased Shares, together with all other documents that may be required in the
sole opinion of the Company's attorneys to effect a complete transfer and
assignment of the Shares so purchased, free and clear of any lien, pledge,
community property rights or encumbrance whatsoever, except as created by the
pledge of the Shares pursuant to the terms of the Pledge Agreement. If the
selling Stockholder, or his Legal Representative, fails to endorse and deliver
all instruments representing the purchased Shares at closing, the instruments
representing the purchased Shares shall conclusively be presumed lost and of no
value. The officers of the Company are hereby authorized and directed, and the
Company agrees, to immediately thereafter reflect such transfer in the records
of the Company as of such date and issue new certificates to the purchaser of
such purchased Shares.
ARTICLE VII.
ENDORSEMENT ON STOCK CERTIFICATE
Upon the execution of this Agreement, the certificates evidencing the
Shares shall be surrendered to the Company and endorsed as follows:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and may not be sold, transferred or otherwise disposed
of except in accordance with the Act or laws or an applicable exemption
therefrom. The sale, transfer, pledge or other disposition of the shares
evidenced by this certificate is restricted by the terms of that certain
Stockholders' Agreement dated as of April ____, 1992 by and among
Hanover Compressor Company (the "Company") and each of the Stockholders
specified therein, which Stockholders, Agreement may be examined at the
principal offices of the Company, and any such shares may be sold,
transferred, pledged or otherwise disposed of only after compliance with
said Stockholders' Agreement."
Except for certificates issued as the result of the Insolvency of a
Stockholder or Permitted Transferor (which certificates shall contain only the
first sentence of the foregoing endorsement), and certificates issued after the
termination of this Agreement pursuant to Article X, all
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certificates evidencing Shares which are subsequently issued by the Company
shall bear the foregoing endorsement.
ARTICLE VIII.
RIGHTS OF TRANSFEREES
The disposition or transfer of Shares to any transferee pursuant to the
terms hereof (other than Shares transferred pursuant to an Offer Event resulting
from the Insolvency of a Stockholder or the Permitted Transferor thereof) shall
not be deemed to have been fully consummated until such time as the transferee
executes and delivers to the Company and each of the remaining Stockholders a
signed counterpart of this Agreement. Until this Agreement is executed and
delivered as herein provided, the transferee shall not be deemed to be a
Stockholder of the Company for any purpose.
ARTICLE IX.
SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF
Any Person against whom enforcement of this Agreement is sought hereby
declares that it is difficult to measure in money the damages which will occur
to a party hereto or a Legal Representative by reason of a failure to perform
any of the obligations under this Agreement, including, but not limited to, the
failure to transfer Shares to a purchasing Stockholder and the attempted
transfer of Shares to a Person in contravention of the terms of this Agreement.
Therefore, notwithstanding' any other provision of this Agreement, the parties
hereto hereby waive any claim or defense to an action to enforce the provisions
hereof or to enjoin the breach hereof of the nature that the party instituting
such action or proceeding has adequate remedy at law. Any Person against whom
such relief is sought also hereby agrees to waive any requirement that the party
instituting such action furnish a bond of any type.
ARTICLE X.
TERM
10.01 TERM. This Agreement shall commence on the date hereof and shall
continue until terminated upon the occurrence of any of the following events:
(a) dissolution of the Company;
(b) the voluntary agreement, in writing, of all of the
Stockholders;
(c) the consummation of a publicly registered offering of any
equity or convertible debt securities of the Company; and
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(d) whenever there is only one surviving Stockholder and all
obligations of such Stockholder and the estates of deceased
Stockholders, one to the other, have been satisfied.
10.02 Termination. Upon termination of this Agreement, the Company
shall, upon surrender to it by the Stockholders of the certificates representing
the outstanding Shares then held by the Stockholders, issue to the Stockholders
new certificates for an equal number of Shares but without the endorsement set
forth in Article VII hereof.
ARTICLE XI.
VOTING OF SHARES; NO PREEMPTIVE RIGHTS
11.01 Voting of Shares. Each Stockholder shall vote his or its Shares of
Common Stock at any regular or special meeting of Stockholders or in connection
with any written consent executed in lieu of such meeting and shall take all
action necessary to ensure that the Certificate of Incorporation and By-Laws of
the Company do not at any time, conflict with the provisions of this Agreement.
11.02 No Preemptive Rights. No Stockholder shall by reason of his or its
holding of the Shares have any preemptive or preferential rights to purchase or
subscribe to any shares of any class of the Company's stock, whether now or
hereafter authorized, or any notes, debentures, bonds or other securities
convertible into or carrying options or warrants to purchase shares of any class
of the Company's stock now or hereafter authorized, whether or not the issuance
of any such shares, notes, debentures, bonds or other securities, would
adversely affect the dividend or voting rights of the Stockholders.
ARTICLE XII.
MISCELLANEOUS
12.01 Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement or the application
thereof to any party or circumstance shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the minimal extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Agreement or the application
circumstances.
12.02 Governing Law. This Agreement shall be construed under the laws of
the State of Delaware (without regard to Delaware conflicts of law principles).
12.03 Counterparts. This Agreement may be executed in several
counterparts, each of which when so executed may be deemed to be an original.
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12.04 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Stockholders and their respective heirs, executors,
Legal Representatives and permitted assigns.
12.05 Notices. All notices required to be given under the terms of this
Agreement or which any of the parties may desire to give hereunder shall be in
writing and shall be deemed given upon personal delivery or three (3) days after
deposit in the United States mail, registered or certified, postage prepaid,
addressed to the party to be notified at the following address or at such other
address as the party to be notified may, from time to time in writing, furnish
to the other parties in the manner provided in this Section:
If to a Stockholder or At the last known address of the
his or its Legal Stockholder shown on the records
Representative: of the Company
If to HEI or the Company: 0000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxxxx
with a copy to: Xxxx Xxxxxx & Xxxxxxxxx
Two North XxxXxxxx Street
Suite 2200
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
12.06 Pronouns, Singular and Plural. Where the context so requires, the
singular shall include the plural and the plural the singular; and all pronouns
shall include the masculine, feminine and neuter.
12.07 Headings. The headings, titles and subtitles herein are inserted
for convenience of reference only and are to be ignored in any construction of
the provisions hereof.
12.08 Amendments. Subject to Section 12.12 hereof, no amendments or
additions to this Agreement shall be binding unless in writing and signed by all
the parties hereto.
12.09 Third Party Beneficiaries. Nothing contained herein shall confer
any right or claim upon, or otherwise inure to the benefit of, any third party.
12.10 Entire Agreement. This Agreement constitutes the entire agreement
of the parties in respect of the within subject matter and supersedes all other
prior agreements, oral or written, with respect to the same.
12.11 Capacity and Authority. Each party hereby represents and warrants
that he or it has full power, capacity and authority to enter into this
Agreement and that his or its doing so is
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not in violation of any contract or agreement, whether written or oral, to which
he or it is a party or by which he or it is bound and will not violate or
interfere with the rights of any other Person.
12.12 Additional Stockholders. Additional Persons may become parties to
this Agreement at any time and from time to time without the consent of the
other Stockholders at such time, provided that the Company approves the same by
executing the signature page in respect of such new party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
COMPANY: STOCKHOLDERS:
------- ------------
HANOVER COMPRESSOR COMPANY, HEI
---
a Delaware corporation
HANOVER ENERGY INC.,
a Texas corporation
By: _______________________ By: _____________________________
Its: _________________ Its: ________________________
Number of Shares:________
Additional Stockholders:
_________________________________
Number of Shares:________________
_________________________________
Number of Shares:________________
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