EXHIBIT 10.71
HANOVER COMPRESSOR COMPANY
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is entered into between
HANOVER COMPRESSOR COMPANY, a Delaware corporation (the "Company"), and (the
"Optionee") on this ___ day of ______,______. In consideration of the mutual
promises and covenants made herein, the parties hereby agree as follows:
1. Grant of Option. Under the terms and conditions set forth
herein, the Company grants to Optionee an option to purchase the Shares at a
purchase price of $ ____ per share (the "Option"). The "Shares" shall consist of
___ shares of the Company's common stock, par value $.001 per share (the "Common
Stock").
The Option is a non-statutory option and is not intended to qualify for
any special tax benefits in the hands of Optionee. The Option is not intended to
qualify as an incentive stock option described in Section 422 of the Internal
Revenue Code of 1986, as amended. All provisions of this Agreement are to be
construed in conformity with this intention.
2. Term. Except as provided below, the Option shall be valid for a
term commencing on the date hereof (the "Date of Grant") and ending 10 years
from the Date of Grant (the "Termination Date").
(a) Option Rights Upon Termination of Employment. If
Optionee ceases to be employed by the Company or any subsidiary or
affiliate for any reason other than Cause, the Option shall be
exercisable (to the extent exercisable on the date of termination of
employment) at any time prior to the earlier of (i) the Termination Date
or (ii) within 30 days after the date of termination of employment.
(b) Termination of Employment for Cause. If Optionee ceases
to be employed by the Company or any subsidiary or affiliate of the
Company because Optionee is terminated for Cause, the Option shall
automatically expire, and, notwithstanding the provisions of Section 3,
Optionee shall forfeit any previously vested Option.
3. Vesting. The Option will vest according to the following
schedule:
Number of Years
Since June 30, 1993 Vested Percentage
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Fewer than one 0%
One but fewer than two 20%
Two but fewer than three 40%
Three but fewer than four 60%
Four but fewer than five 80%
Five or more 100%
If Optionee terminates employment with the Company prior to becoming
fully vested, he will forfeit the non-vested portion of the Option.
Notwithstanding the foregoing vesting schedule, if Optionee's employment is
terminated because for Cause, Optionee's vested percentage shall be 0% and he
shall forfeit the Option. Notwithstanding the foregoing vesting schedule, upon
occurrence of a Capital Event, then the Optionee shall be 100% fully vested in
his Option. The Company shall notify Optionee at least 10 days prior to a
contemplated Capital Event.
4. Restriction on Exercise. The Option may not be exercised during
any period in which Optionee is in default under the terms of any loan or other
obligation that Optionee may have with the Company. Upon cure of such default,
the restrictions of this Section 4 will lapse and the Option shall be
exercisable to the extent vested and otherwise exercisable under the terms of
this Agreement.
5. Procedure for Exercise. Exercise of the Option or a portion
thereof shall be effected by the giving of written notice to the Company by
Optionee at its principal office and payment of the pro rata portion of the
purchase price prescribed in Section 1 for the number of Shares to be acquired
pursuant to the exercise.
6. Payment for Shares. Payment of the purchase price for any
shares purchased pursuant to the exercise of the Option shall be made in (i)
cash; (ii) by certified or cashier's check, (iii) by shares of Common Stock,
subject to the consent of the Board, by cash or certified or cashier's check for
the par value of the Shares plus a promissory note for the balance of the
purchase price, which shall not provide for full personal liability of Optionee
and shall contain such other terms and provisions as the Board of Directors may
determine, including, without limitation, the right to repay the note partially
or wholly with Common Stock or (v) by delivery of a copy of irrevocable
instructions from the Optionee to a broker or dealer, reasonably acceptable to
the Company, to sell certain of the Shares purchased upon the exercise of the
Option or to pledge them as collateral for a loan and promptly to deliver to the
Company the amount of sale or loan proceeds necessary to pay such purchase
price. If any portion of the purchase price or a note given at the time of
exercise is paid in shares of Common Stock, those shares shall be valued at
their then Fair Market Value.
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7. Option Not Transferable and Subject to Certain Restrictions. The
Option may not be sold, pledged, assigned, or transferred in any manner other
than by will or the laws of descent and distribution and may be exercised during
the lifetime of Optionee only by Optionee or by his legally authorized
representative. Following the death of Optionee, the Option may be exercised by
Optionee's personal representative or by the distributee to whom Optionee's
rights under the Option shall pass by will or by the laws of descent and
distribution.
8. Non-Competition and Confidential Information. In consideration
hereof, Optionee agrees that during the term of this Agreement and for a period
of one year thereafter, he (i) will not compete with any business of the Company
or its subsidiaries or affiliates and (ii) will not disclose to persons outside
the Company confidential information concerning the Company or its subsidiaries
or affiliates without the Company's express written consent.
9. Consent to Stockholders' Agreement. Optionee hereby acknowledges
and confirms that the Shares purchased upon exercise of the Option are subject
to the terms and conditions of the Stockholders' Agreement. Optionee further
acknowledges and agrees that prior to delivery of any Shares by the Company,
Optionee will execute such instruments as are necessary to be bound by the terms
and conditions of the Stockholders' Agreement.
10. Investment Purpose. Upon exercise of the Option, Optionee shall
represent and warrant to the Company that he is acquiring the Shares for his own
account for investment and not with a view to or for sale in connection with any
distribution of the Shares and that he consents to be bound by any transfer
restrictions imposed by law, legend, condition or otherwise. The Option consents
to the imposition of the following legend on all stock certificates representing
the Shares:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES LAWS. THE
SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR OFFERED
FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SHARES UNDER THE SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED. IN ADDITION, THE SALE, TRANSFER, PLEDGE OR
OTHER DISPOSITION OF THE SHARES EVIDENCED BY THIS CERTAIN AMENDED AND
RESTATED STOCKHOLDERS' AGREEMENT DATED AS OF AUGUST 7, 1995 AMONG THE
COMPANY AND EACH OF THE STOCKHOLDERS SPECIFIED THEREIN, WHICH AMENDED
AND RESTATED STOCKHOLDERS' AGREEMENT MAY BE EXAMINED AT THE PRINCIPAL
OFFICES OF THE COMPANY. THE SHARES OF COMMON STOCK REPRESENTED BY THIS
CERTIFICATE MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT
IN ACCORDANCE WITH (I) SAID SECURITIES LAWS OR AN APPLICABLE
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EXEMPTION THEREFROM AND (II) SAID AMENDED AND RESTATED STOCKHOLDERS'
AGREEMENT.
11. Tax Withholding.
(a) Option Conditioned upon Satisfaction of Withholding
Obligation. The issuance, delivery, exercise or vesting of the Option is
subject to the condition that if at any time the Board of Directors
shall determine, in its discretion, that the satisfaction of withholding
tax or other withholding liabilities under any state or federal law is
necessary or desirable as a condition of, or in connection with, the
issuance, delivery, exercise or vesting of the Option, then the
issuance, delivery, exercise or vesting of the Options shall not be
effective unless the withholding shall have been effected or obtained in
a manner acceptable to the Company.
(b) Manner of Satisfying Withholding Obligation. If Optionee
is required to pay to the Company an amount required to be withheld
under applicable income tax laws in connection with the exercise of an
Option, subject to Section 11(c), he may satisfy the obligation, in
whole or in part, by electing to (i) have the Company withhold a portion
of the Shares acquired upon the exercise of the Option and having a Fair
Market Value on the date the amount of tax to be withheld is to be
determined (the "Tax Date") equal to the amount required to be withheld
or (ii) deliver to the Company shares of Common Stock already owned and
having a Fair Market Value on the Tax Date equal to the amount required
to be withheld. The amount to be withheld shall be the minimum amount
that is required to be withheld under applicable federal and state
income tax laws; provided, however, in the event a request is made by
Optionee, the amount of federal and state income taxes that will be
incurred by Optionee with respect to such issuance, delivery, exercise
or vesting of Options under the this Agreement.
(c) Special Rules for Use of Stock. An election to have
Shares or other shares of Common Stock withheld or delivered out of
already-owned Common Stock for this purpose (i) must be made prior to
the Tax Date, and (ii) must be irrevocable.
12. Compliance with Securities Laws. Shares shall not be issued
unless the exercise of the Option and the issuance and delivery of the Shares
shall comply with all applicable provisions of state and federal law (including,
without limitation, (a) the Securities Act, the Exchange Act, Rule 16b-3, and
the rules and regulations promulgated thereunder and (b) the requirements of any
stock exchange upon which the Shares may then be listed and shall be further
subject to the approval of counsel for the Company with respect to such
compliance. Optionee shall furnish evidence satisfactory to the Company,
including a written and signed representation.
13. Employment of Optionee. Nothing in this Agreement shall confer
upon the Optionee any right to continued employment by the Company or any of its
subsidiaries or
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affiliates or limit in any way the right of the Company or any subsidiary or
affiliate at any time to terminate or alter the terms of such employment.
14. Adjustments. If the outstanding Common Stock of the Company is
increased, decreased, changed into, or exchanged for a different number or kind
of shares or securities through merger, consolidation, combination, exchange of
shares, other reorganization, recapitalization, reclassification, stock
dividend, stock split, or reverse stock split, an appropriate and proportionate
adjustment shall be made in the number and kind of Shares subject to the Option;
provided, however that no adjustment shall be made upon any conversion of
preferred stock to Common Stock. Any such adjustment in the Option shall be made
without change in the aggregate purchase price applicable to the unexercised
portion of the Option, but with a corresponding adjustment in the price for each
share covered by the Option. The foregoing adjustments and the manner of
application of the forgoing provisions shall be determined solely by the Board
of Directors and any such adjustments may provide for the elimination of
fractional share interests.
15. Shares Not Outstanding. Prior to issuance upon the exercise of
the Option, the Shares are not deemed to be outstanding for any purpose and
Optionee shall have no voting, preemptive or other shareholder rights with
respect to such Shares.
16. Number of Gender. Whenever used herein, nouns in the singular
shall include the plural where appropriate, and the masculine pronoun shall
include the feminine gender.
17. Headings. Headings of articles and sections hereof are inserted
for convenience of reference and constitute no part of the Agreement.
18. Binding on Successors. This Agreement shall be binding upon the
successors and assigns of the Company and on the heirs, personal
representatives, successors, assigns and distributees of Optionee.
19. Definitions. Unless otherwise defined herein, terms used herein
with initial capital letters, shall have the meanings hereinafter set forth
unless the context clearly indicates to the contrary:
(a) "Board" means the Board of Directors of the Company.
(b) "Capital Event" means the first to occur of:
(A) the date that GKH sells or otherwise
transfers more than 50% of its Common Stock interest
in the Company;
(B) the date all or substantially all the
assets or property of the Company are sold or otherwise
transferred to an unrelated third-party;
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(C) the effective date of a merger or
consolidation, under which the Company is not the
surviving entity or the surviving entity is not
controlled by GKH either individually or collectively;
(D) the dissolution or liquidation of the
Company; or
(E) the effective date (as declared by the
Securities and Exchange Commission) the Common Stock is
registered in a public offering and listed on a
nationally recognized stock exchange or national
inter-dealer quotation system.
(c) "Cause" means a termination of an Optionee's employment
by the Company, any subsidiary or affiliate due to (i) the commission by
such Optionee of an act of fraud, embezzlement or willful breach of a
fiduciary duty to the Company, any subsidiary or affiliate (including
the unauthorized disclosure of confidential or proprietary material
information of the Company, any subsidiary or affiliate), (ii) a
conviction of such Optionee (or a plea of nolo contendere in lieu
thereof) for a felony or a crime involving fraud, dishonesty or moral
turpitude, (iii) willful misconduct as an employee of the Company, any
subsidiary or affiliate, (iv) the willful failure of such Optionee to
render services to the Company, any subsidiary or affiliate in
accordance with his employment, which failure amounts to a material
neglect of his duties to the Company, any subsidiary or affiliate or (v)
substantial dependence, as determined by the Board, on alcohol or any
drug, immediate precursor or other substance listed in Schedule I-V of
the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970,
as amended.
(d) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(e) "Fair Market Value" means such value as determined by
the Board on the basis of such factors as it deems appropriate;
provided, however, that if the Common Stock is traded on a national
securities exchange or transactions in the Common Stock are quoted on
the NASDAQ National Market System, such value as shall be determined by
the Board on the basis of the average reported sales price for the
Common Stock for the ten days preceding the date for which such
determination is relevant, as reported on the national securities
exchange or the NASDAQ National Market System, as the case may be.
(f) "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.
(g) "Rule 16b-3" means Rule 16b-3 promulgated under the
Exchange Act or any successor rule.
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(h) "Securities Act" means the Securities Act of 1933, as
amended.
(i) "Stockholders' Agreement" means the Amended and
Restated Stockholders' Agreement dated as of August 7, 1995.
20. Governing Law. The construction and operation of this Agreement
are governed by the laws of the State of Delaware.
21. Amendment. This Agreement may be amended only by an instrument
in writing signed by both the Company and Optionee.
22. Entire Agreement. This Agreement constitutes the entire
agreement between the parties concerning the subject matter hereof and
supersedes all prior and contemporaneous agreements between the Company and
Optionee relating to the subject matter hereof.
Executed on the date first written above.
COMPANY:
HANOVER COMPRESSOR COMPANY,
a Delaware corporation
By: /s/ William S. Goldberg
-------------------------
William S. Goldberg
Executive Vice President
OPTIONEE:
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