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EXHIBIT 4.15
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
(HEHC)
THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (HEHC) (this
"Agreement") dated as of May ______, 1997, among Hanover Compressor Company, a
Delaware corporation (the "Company") and the Stockholders party hereto (all
capitalized terms used but not defined prior to Article I shall have the
meaning ascribed to them in Article I), which Agreement shall be effective upon
the consummation of an initial public offering of Company Common Stock (the
"Effective Date").
W I T N E S S E T H:
WHEREAS, as of the date hereof, the Company and the Stockholders are
parties to that certain Stockholders Agreement dated as of January 27, 1995,
amended as of October 31, 1996 (the "Stockholders Agreement");
WHEREAS, no amendment of the Stockholders Agreement shall be valid
unless the same shall be executed by all of the Stockholders;
WHEREAS, the Company and the Stockholders agree that it is in their
best interests to amend and restate the Stockholders Agreement in its entirety.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
covenants and agreements herein contained and of other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS; ETC.
1.1 Definitions. Except as otherwise herein expressly provided,
the following terms and phrases shall have the meanings set forth below:
"Affiliate" shall mean (i) in the case of an entity, 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 or (ii)
in the case of an individual, such individual's spouse, children, grandchildren
or parents or a trust primarily for the benefit of any of the foregoing. With
respect to GKH, the term Affiliate shall expressly include the partners in GKH.
"Agreement" shall mean this Amended and Restated Stockholders
Agreement (HEHC), as originally executed and as amended, modified, supplemented
or restated from time to time, as the context requires.
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"Bankruptcy" shall mean (i) an adjudication of bankruptcy under the
Federal Bankruptcy Reform Act of 1978, as amended, or any successor statute,
(ii) an assignment for the benefit of creditors, (ii) the filing of a voluntary
petition in bankruptcy or reorganization, or (iv) the failure to vacate the
appointment of a receiver or trustee for any part of the assets or property of
the Company within 60 days from the date of such appointment.
"Board" shall mean the Board of Directors of the Company, as
constituted from time to time.
"Bona Fide Purchaser" shall mean any Person (other than a selling
Stockholder's Affiliates) who or which has delivered a good faith written offer
to purchase all or a portion of such Stockholder's Stock; provided, however,
that, such Person has the requisite financial resources necessary, in the
reasonable opinion of the Board, to purchase and acquire such Stockholder's
Stock.
"Common Stock" shall mean the Company's common stock, par value $.001
per share.
"Control" (including the terms "controlled by" and "under common
control with"), with respect to the relationship between or among two or more
Persons, means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the affairs or
management of a Person, whether through the ownership of voting securities, as
trustee or executor, by contract or otherwise, including, without limitation,
the ownership, directly or indirectly, of securities having the power to elect
a majority of the board of directors or similar body governing the affairs of
such Person.
"Dispose" or "Disposition" (and any derivatives thereof) shall mean
(i) a voluntary or involuntary sale, assignment, transfer, conveyance or other
disposition of a Stockholder's Stock, and (ii) any agreement, contract or
commitment to do any of the foregoing, but shall exclude any pledge of a
Stockholder's Stock.
"Encumbrance" or "Encumber" shall mean or refer to any lien, claim,
charge, pledge, mortgage, encumbrance, security interest, preferential
arrangement, restriction on voting or alienation of any kind, adverse interest,
or the interest of a third party under any conditional sale agreement, capital
lease or other title retention agreement.
"Exempt Disposition" shall mean a Disposition (i) pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(the "Securities Act") or (ii) pursuant to any public distribution of Stock
pursuant to Rule 144 of the Securities Act.
"GKH" shall mean the collective reference to (i) GKH Investments,
L.P., a Delaware limited partnership ("Investments"), (ii) GKH Partners, L.P.,
a Delaware limited partnership ("Partners") and (iii) the respective Affiliates
of Investments and Partners. Any and all decisions and determinations to be
made by GKH hereunder shall be made by Partners, for itself, Investments and
their respective Affiliates.
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"Non-GKH Holders" shall mean any Stockholder other than GKH.
"Person" shall mean any individual, partnership, corporation, limited
liability company, joint venture, trust, firm, association, unincorporated
organization or other entity.
"Stock" shall mean (i) shares of Common Stock, (ii) shares of
preferred stock, and (iii) options and warrants exercisable with respect to, or
other securities convertible into or exchangeable for shares of, Common Stock.
"Stockholder or "Stockholders" shall mean the parties hereto (other
than the Company), their appropriate successors and assigns and any person who
is (i) a holder of Stock and (ii) is or is required to be a party to this
Agreement at the time of reference thereto.
"Subsidiary" shall mean with respect to any Person, (a) any
corporation (whether now existing or hereafter organized) of which at least a
majority of the voting stock having ordinary voting power for the election of
directors is, at the time as of which any determination is being made, directly
or indirectly owned or controlled by such Person or as to which such Person has
the power to direct the management or operations hereof, whether by contract or
otherwise and (b) any partnership, joint venture, association or other business
entity (whether now existing or hereafter organized) of which more than 50% of
the equity interest is, at the time as of which any determination is being
made, directly or indirectly owned or controlled by such Person or as to which
such Person has the power to direct the management or operations hereof,
whether by contract or otherwise.
"Transfer Notice" shall mean the notice required to be delivered by
GKH to the non-GKH Stockholders pursuant to Section 2.1. To be effective, the
Transfer Notice must (i) state the identity and the address of the Bona Fide
Purchaser who has offered, in writing, to purchase the Disposing Stockholder's
Stock, and (ii) state all material terms of such Bona Fide Purchaser's offer.
1.2 Certain Other Defined Terms. The following terms are defined
in the Section of this Agreement set forth directly opposite such terms:
Term Section
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Company preamble
Participating Stockholder 2.2(b)
1.3 Article, Etc. References to an "Article" or a "Section" are,
unless otherwise specified, to one of the Articles or Sections of this
Agreement.
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ARTICLE II
TRANSFER RESTRICTIONS
2.1 Rights to Compel Disposition.
(a) Rights of GKH. If GKH proposes to Dispose of all
(but not less than all) of its Stock to a Bona Fide Purchaser other than
pursuant to an Exempt Disposition, then, notwithstanding anything in this
Agreement to the contrary, GKH may require the Non-GKH Holders to Dispose of
their Stock to such Bona Fide Purchaser for the same consideration per share
and otherwise on the same terms and conditions (other than with respect to
representations and warranties) upon which GKH effects the Disposition of its
Stock.
(b) Obligations of the Non-GKH Holders. In the event
that GKH desires to exercise its right pursuant to Section 2.1(a), GKH shall
deliver to the Company and the Non-GKH Holders written notice setting forth the
consideration per share of Stock to be paid by such Bona Fide Purchaser and the
other terms and conditions of such Disposition. Such notice shall also
constitute a Transfer Notice. Within 25 days following the date of such
notice, the Non-GKH Holders shall deliver to GKH (i) an appropriate assignment
duly executed in a proper form to effect the Disposition of such Stock from the
Non-GKH Holders to the Bona Fide Purchaser on the books and records of the
Company and (ii) a limited power-of-attorney authorizing GKH to effect the
Disposition of such Stock pursuant to the terms of such Bona Fide Purchaser's
offer as such terms may be modified by GKH, provided, that all of the Non-GKH
Holder's Stock is disposed of for the same consideration per share of Stock and
otherwise on the same terms and conditions upon which GKH effects the
Disposition of its Stock. In the event that any Non-GKH Holder shall fail to
deliver such documentation, assignment and limited power-of-attorney to GKH,
the Company shall cause a notation to be made on its books and records to
reflect that the Stock of the such Non-GKH Holder is bound by the provisions of
this Section 2.1 and that the Disposition of such Stock may be effected without
the such Non-GKH Holder's consent or surrender of its Stock.
ln addition, in the event GKH exercises its rights under Section
2.1(a), the Non-GKH Holders shall be required to make to a Bona Fide Purchaser
such unqualified representations and warranties with respect to their Stock as
are set forth in Section 2.3(b) hereof and representations and warranties
qualified to knowledge with respect to all other matters as are reasonably
requested by the Bona Fide Purchaser.
(c) Responsibility of GKH. Promptly (but in no event
later than the day of receipt) after the consummation of the Disposition of
Stock pursuant to this Section 2.1, GKH shall (i) deliver notice thereof to the
Non- GKH Holders, (ii) remit to the Non-GKH Holders the total sales price of
their Stock Disposed of pursuant hereto, and (iii) furnish such other evidence
of the completion and time of completion of such Disposition and the terms
thereof as may be reasonably requested in writing by the Non-GKH Holders.
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(d) Failure to Effect Transfer. If, within 90 days after
GKH's delivery of the notice required pursuant to Section 2.1(b), GKH has not
completed the Disposition of its Stock and that of the Non-GKH Holders in
accordance herewith, GKH shall return to the Non-GKH Holders (i) the
assignments with respect to the Non-GKH Holders' Stock which the Non-GKH
Holders delivered pursuant to this Section 2.1 and (ii) the related limited
power-of-attorney. Upon the Non-GKH Holder's receipt of such materials, all
the restrictions on Disposition contained in this Agreement with respect to the
Stock owned by the Stockholders shall again be in effect.
2.2 Rights of Inclusion.
(a) Rights of the Non-GKH Holders. If GKH proposes to
Dispose of any or all of its Stock to a Bona Fide Purchaser, other than
pursuant to an Exempt Disposition, then the Non-GKH Holders may require GKH to
require the Bona Fide Purchaser to purchase up to the same percentage of the
Stock then owned by such Non-GKH Holders as is proposed to be sold by GKH to
such Bona Fide Purchaser in accordance with this Section 2.2(a) for the same
consideration per share and otherwise on the same terms and conditions (other
than with respect to representations and warranties) upon which GKH effects the
Disposition of its Stock.
(b) Obligations of Participating Stockholder. If GKH
desires to accept a Bona Fide Purchaser's offer to purchase all of GKH's Stock
in accordance with Section 2.2(a), GKH shall deliver a copy of the Bona Fide
Purchaser's offer to the Company and the Non-GKH Holders, and, within 30 days
of the receipt of such copy, in the event that any Non-GKH Holders desires to
exercise its rights pursuant to this Section 2.2 (each a "Participating
Stockholder"), such Participating Stockholder shall deliver to GKH and the
Company written notice to such effect and shall deliver to GKH (i) an
appropriate assignment duly executed in a proper form to effect the Disposition
of such Stock to the Bona Fide Purchaser on the books and records of the
Company and (ii) a limited power-of-attorney authorizing GKH to effect the
Disposition of such Stock pursuant to the terms of such Bona Fide Purchaser's
offer as such terms may be modified by GKH, provided, that all of the
Participating Stockholder's Stock that is being transferred pursuant to this
Section 2.2 is Disposed of for the same consideration per share and otherwise
on the same terms and conditions upon which effects the Disposition of its
Stock. The failure of a Participating Stockholder to deliver notice of its
desire to exercise its rights under or to otherwise comply with the provisions
of this Section 2.2(b) shall be deemed to be a waiver of the Participating
Stockholder's rights hereunder.
The Participating Stockholders shall be required to make to a Bona
Fide Purchaser such unqualified representations and warranties with respect to
their Stock as are set forth in Section 2.3(b) hereof and representations and
warranties qualified to knowledge with respect to all other matters as are
reasonably requested by the Bona Fide Purchaser.
(c) Responsibility of GKH. In the event that any
Participating Stockholder timely exercises its rights of inclusion under this
Section 2.2, promptly (but in no event later than the day of receipt) after the
consummation of the sale of Stock under this Section 2.2, GKH
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shall (i) deliver notice thereof to each Participating Stockholder, (ii) remit
to each Participating Stockholder the total sales price of such Participating
Stockholder's Stock sold pursuant hereto and (iii) furnish such other evidence
of the completion and time of completion of such Disposition and the terms
thereof as may be reasonably requested in writing by each Participating
Stockholder.
(d) Failure to Effect Transfer. In the event that any
Stockholder elects to exercise its rights of inclusion under this Section 2.2
as a Participating Stockholder, if, within 90 days after GKH's delivery of the
copy of the Bona Fide Purchaser's offer pursuant to Section 2.2(b), GKH has not
completed the Disposition of its Stock and that of the Participating
Stockholders in accordance herewith, GKH shall return to each Participating
Stockholder (i) the assignments with respect to each Participating
Stockholder's Stock which each Participating Stockholder delivered for
Disposition pursuant to this Section 2.2 and (ii) the related limited
power-of-attorney. Upon the Participating Stockholders' receipt of such
materials, all the restrictions on Disposition contained in this Agreement with
respect to the Stock owned by the Stockholders shall again be in effect.
2.3 Agreement of Selling Stockholders. All sales of Stock to be
made pursuant to Sections 2.1 and 2.2 of this Agreement shall be subject to the
following terms:
(a) the Disposing Stockholder shall deliver to the
purchaser the Stock being sold, free and clear of Encumbrances, together with
duly executed stock transfer powers in favor of the purchaser or its nominees
and such other documents, including evidence of ownership and authority, as the
purchaser may reasonably request; and
(b) the Disposing Stockholder shall not be required to
make any unqualified representations or warranties to any Person in connection
with such sale, except as to (i) good title to the Stock being sold, (ii) the
absence of Encumbrances with respect to the Stock being sold, (iii) its valid
existence and good standing (if applicable), (iv) the authority for, and
validity and binding effect of (as against such Disposing Stockholder), any
agreement entered into by such Disposing Stockholder in connection with such
sale, (v) all required material consents to Disposing Stockholder's sale and
material governmental approvals having been obtained (excluding any securities
laws) and (vi) the fact that no broker's commission is payable by the Disposing
Stockholder as a result of Disposing Stockholder's conduct in connection with
the sale.
2.4 General Transfer Restriction. Unless otherwise agreed by all
of the Stockholders, any Stock Disposed by a Stockholder, other than pursuant
to an Exempt Disposition, shall remain subject to all of the terms and
conditions of this Agreement in the hands of any Person to whom such Stock may
be Disposed and any such Person shall be required to first deliver to the
Company and the Stockholders a written agreement assuming and agreeing to be
bound by all of the terms and conditions of this Agreement and to be a
Stockholder hereunder.
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ARTICLE III
ADDITIONAL AGREEMENTS
3.1 Business Opportunities and Conflicts. Each Stockholder
recognizes that each other Stockholder has or may have other business
interests, activities and investments and that, subject to this Section 3.1,
each such other Stockholder is entitled to carry on such other business
interests, activities and investments. No such other Stockholder shall be
obligated to devote all or any particular part of his or its time and effort to
the Company and its affairs.
ARTICLE IV
MISCELLANEOUS PROVISIONS
4.1 Endorsement on Stock Certificates. Each and every certificate
evidencing Stock shall contain upon its face, or on the reverse side thereof,
the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE (i) HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE PLEDGED, HYPOTHECATED, TRANSFERRED, OFFERED FOR
SALE OR SOLD EXCEPT PURSUANT TO A REGISTRATION UNDER SAID ACT
OR AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO COUNSEL
FOR THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
SAID ACT AND (ii) ARE SUBJECT TO THE PROVISIONS OF A
STOCKHOLDERS AGREEMENT COPIES OF WHICH ARE AVAILABLE AT THE
PRINCIPAL OFFICES OF THE COMPANY.
4.2 Termination. This Agreement shall terminate upon the earliest
to occur of the following events:
(a) Bankruptcy of the Company;
(b) the consummation of a publicly registered offering of
25% or more of the common stock of the Company;
(c) 100% of the Stock being owned by a single
Stockholder;
(d) the voluntary agreement, in writing, of all of the
Stockholders; or
(e) the Effective Date failing to occur by September 15,
1997; or
(f) September __, 2004.
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4.3 Effectiveness. Until occurrence of the Effective Date, the
Stockholders Agreement shall remain in full force and effect and in the event
of the termination of this Agreement pursuant to Section 4.2(e) hereof, the
Stockholders Agreement shall continue in full force and effect.
4.4 Stock Subject to this Agreement.
(a) This Agreement shall apply to all Stock currently or
hereinafter owned or acquired by the Stockholders, including, without
limitation, (i) the Stock held by the Stockholders on the date hereof, (ii) any
Stock issued to any Stockholder pursuant to Section 4.4(b) hereof, (iii) any
Stock issued to any Stockholder pursuant to such Stockholder's exercise of an
option or warrant and (iv) any Stock otherwise purchased, acquired or issued to
any Stockholder.
(b) If, at any time, and from time to time, the Company
shall declare and make a distribution upon any of the Stock, or shall validly
issue Stock in lieu of, or in exchange for, or in addition to, any of the Stock
without the receipt of additional consideration therefor, then any such Stock
subsequently issued with respect to the Stock then subject to this Agreement
shall constitute additional Stock subject to this Agreement.
4.5 Notices. Any and all notices or other communications provided
for herein shall be in writing and shall be considered duly given upon the
earliest to occur of (a) personal delivery, (b) 2 days after being delivered to
a national recognized overnight delivery courier or service, (c) 3 days after
being mailed by registered or certified mail, return receipt requested, postage
prepaid or (d) the delivering parties receipt of a written confirmation of a
facsimile transmission. All notices shall be addressed to the Stockholders at
their addresses listed on the signature pages of this Agreement. Any party
hereto may change his or its address by giving notice to the other parties
hereto as provided herein.
4.6 Pronouns and Headings. As used herein, all pronouns shall
include the masculine, feminine, neuter, singular and plural wherever the
context and facts require such construction. The descriptive headings in the
sections of this Agreement are inserted for convenience of reference only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
4.7 Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal or unenforceable, such
provision shall be severed and the remaining provisions hereof shall be
enforced to the extent possible or modified in such a way as to make it
enforceable, and the invalidity, illegality or unenforceability thereof shall
not affect the validity, legality or enforceability of the remaining provisions
of this Agreement.
4.8 Modification; Amendment. No modification or amendment of this
Agreement shall be valid unless the same shall be in writing executed by all of
the Stockholders.
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4.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to the conflict of laws provisions thereof
4.10 Binding Effect; Complete Agreement. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns. This
Agreement constitutes the entire agreement among the parties hereto and
supersede all prior agreements and understandings, oral or written, among the
parties hereto with respect to the subject matter hereof, except as provided in
Section 4.3 hereof.
4.11 Specific Performance. The parties acknowledge that given the
nature of the obligations of the parties hereto that any non-breaching party
will be irreparably damaged by a breach of this Agreement. The parties hereto
therefore acknowledge and agree that any non-breaching party hereto may seek
specific performance of the provisions hereof and that no party hereto may
assert adequacy of a remedy at law as a defense to an action for specific
performance hereunder.
4.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
4.13 Attorneys' Fees. If any legal action, including an action for
declaratory relief, is brought to enforce any provision of this Agreement, the
prevailing party or parties, as the case may be, shall be entitled to recover
his, its or their respective reasonable attorneys' fees from non-prevailing
party or parties, as the case may be. These fees, which may be set by the
court in the same action or in a separate action brought for that purpose, are
in addition to any other relief to which any prevailing party may be entitled.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties as of the date first above written.
THE COMPANY:
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HANOVER COMPRESSOR COMPANY
By:
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Title:
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THE STOCKHOLDERS:
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GKH PARTNERS, L.P., a Delaware limited partnership
By: JAKK HOLDING CORP., a general partner
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
GKH INVESTMENTS, L.P., a Delaware limited partnership
By: GKH Partners, L.P., its general partner
By: JAKK Holding Corp., a general partner
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
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under the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Declaration of Trust
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▇▇▇▇ ▇▇▇▇▇▇, solely in his capacity:
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IPP95, L.P.
BY: WESINVEST, INC., its General Partner
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By:
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Name:
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Its:
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The Simon Children's Trust
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