Exhibit 10.1
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
by and among
COMPRESSCO, INC.,
COMPRESSCO FIELD SERVICES, INC.,
COMPRESSCO CANADA, INC.,
COMPRESSCO DE MEXICO, S. DE R.L. DE C.V.,
COMPRESSCO PARTNERS GP INC.,
COMPRESSCO PARTNERS, L.P.,
COMPRESSCO PARTNERS OPERATING, LLC,
COMPRESSCO NETHERLANDS B.V.,
COMPRESSCO HOLDINGS, LLC,
COMPRESSCO NETHERLANDS COÖPERATIEF U.A.,
COMPRESSCO PARTNERS SUB, INC.,
TETRA INTERNATIONAL INCORPORATED,
PRODUCTION ENHANCEMENT MEXICO, S. DE R.L. DE C.V.,
and
TETRA TECHNOLOGIES, INC.
Dated as of June 20, 2011
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
This Contribution, Conveyance and Assumption Agreement, dated as of June 20, 2011 (this
Agreement
), is by and among Compressco, Inc., a Delaware corporation and wholly owned subsidiary
of TETRA (
Compressco
), Compressco Field Services, Inc., an Oklahoma corporation and wholly owned
subsidiary of Compressco (
CFSI
), Compressco Canada, Inc., an Alberta corporation and wholly owned
subsidiary of Compressco (
Cansub
), Compressco de Mexico, S. de R.L. de C.V., a Mexico limited
liability company of variable capital
(sociedad de responsibilidad limitada de capital variable)
and subsidiary of Mexico Sub I and Mexico Sub II (
CP Mexico
), Compressco Partners GP Inc., a
Delaware corporation and wholly owned subsidiary of CFSI (the
General Partner
), Compressco
Partners, L.P., a Delaware limited partnership and subsidiary of CFSI and the General Partner (the
Partnership
), Compressco Partners Operating, LLC, a Delaware limited liability company and wholly
owned subsidiary of CFSI (
OPCO
), Compressco Netherlands B.V., a Netherlands private limited
liability company and wholly owned subsidiary of CFSI (
Compressco Dutch BV
), Compressco Holdings,
LLC, a Delaware limited liability company and wholly owned subsidiary of CFSI (
Compressco
Holdings
), Compressco Netherlands Coöperatief U.A., a Netherlands coöperatief and subsidiary of
CFSI and Compressco Holdings (
Compressco Dutch Co-op
), Compressco Partners Sub, Inc., a Delaware
corporation and a wholly owned subsidiary of the Partnership (
MLP Sub
), TETRA International
Incorporated, a Delaware corporation and wholly owned subsidiary of TETRA (
TII
), Production
Enhancement Mexico, S. de R.L. de C.V., a Mexico limited liability company of variable capital
(sociedad de responsibilidad limitada de capital variable)
(
PE Mexico
) and a subsidiary of TII
and Providence Natural Gas, LLC, and TETRA Technologies Inc., a Delaware corporation (
TETRA
).
The above-defined entities are sometimes referred to in this Agreement singularly as a
Party
and
collectively as the
Parties
. Capitalized terms used herein shall have the meanings assigned to
such terms in Article I.
RECITALS
WHEREAS
, the General Partner and CFSI have formed the Partnership, pursuant to the Delaware
Revised Uniform Limited Partnership Act (the
Delaware LP Act
), for the purpose of engaging in any
business activity that is approved by the General Partner and that lawfully may be conducted by a
limited partnership organized pursuant to the Delaware LP Act.
WHEREAS
, concurrently with or immediately following the completion of the transactions
contemplated hereby, the Partnership shall consummate an initial public offering (the
IPO
) of its
Common Units.
WHEREAS
, in furtherance of the objectives and purposes set forth in the preceding recitals,
the Parties hereby acknowledge that each of the following actions was taken prior to the date
hereof:
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A.1
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CFSI formed Compressco Leasing, LLC (
Leaseco
) under the terms of the Delaware
Limited Liability Company Act (the
Delaware LLC Act
) and contributed $1,000 to
Leaseco in exchange for all of the membership interests in Leaseco (all such membership
interests, the
Leaseco Interests
).
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1
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A.2
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CFSI sold to Leaseco all of CFSIs right, title and interest in and to the
Compressor Units owned and used by CFSI to conduct CFSIs U.S.-based production
enhancement services business, including, but not limited to, Compressor Units set
forth on
Schedule 1
(such Compressor Units, the
U.S. Service Compressor
Units
) in exchange for an obligation by Leaseco to pay to CFSI an amount of
$11,931,204.91 (such obligation, the
Leaseco Loan
) under that Inter-Company Loan
Agreement by and between CFSI and Leaseco, dated as of March 31, 2011 (the
Leaseco
Loan Agreement
), and thereafter Leaseco leased the U.S. Service Compressor Units to
CFSI.
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A.3
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CFSI formed Compressco Mexico Investment I, LLC (
Mexico Sub 1
) under the
terms of the Delaware LLC Act and contributed $1,000 to Mexico Sub 1 in exchange for
all of the membership interests in Mexico Sub 1 (all such membership interests, the
Mexico Sub 1 Interests
).
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A.4
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CFSI formed Compressco Mexico Investment II, LLC (
Mexico Sub 2
) under the
terms of the Delaware LLC Act and contributed $1,000 to Mexico Sub 2 in exchange for
all of the membership interests in Mexico Sub 2 (all such membership interests, the
Mexico Sub 2 Interests
).
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A.5
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Mexico Sub 1 and Mexico Sub 2 formed CP Mexico under Mexico laws and
contributed MXN $1,530 and MXN $1,470, respectively, to CP Mexico, in exchange for 51%
and 49% of the membership interests, respectively, in CP Mexico.
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A.6
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CFSI formed the General Partner under the terms of the Delaware General
Corporation Law (the
DGCL
) and contributed $1,000 to the General Partner in exchange
for all of the shares of common stock of the General Partner.
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A.7
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CFSI and the General Partner formed the Partnership under the terms of the
Delaware LP Act and contributed $999 and $1, respectively, to the Partnership in
exchange for a 99.9% limited partner interest (the
Initial LP Interest
) and a 0.1%
general partner interest (the
Initial GP Interest
), respectively, in the Partnership.
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A.8
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CFSI formed OPCO under the terms of the Delaware LLC Act and contributed $1,000
to OPCO in exchange for all of the membership interests in OPCO (all such membership
interests, the
OPCO Interests
).
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A.9
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CFSI formed Compressco Field Services International, LLC (
Argentina Sub 1
)
under the Delaware LLC Act and contributed $1,000 to Argentina Sub 1 in exchange for
all of the membership interests in Argentina Sub 1 (all such membership interests, the
Argentina Sub 1 Interests
).
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A.10
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CFSI formed Compressco International, LLC (
Argentina Sub 2
) under the
Delaware LLC Act and contributed $1,000 to Argentina Sub 2 in exchange for all of the
membership interests in Argentina Sub 2 (all such membership interests, the
Argentina
Sub 2 Interests
).
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2
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A.11
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CFSI and TII formed Compressco de Argentina S.R.L. (
Compressco Argentina
)
under Argentina laws and contributed $12,600, represented by 3,600 limited liability
company interests, and $1,400, represented by 400 limited liability company interests,
respectively, to Compressco Argentina in exchange for 90% and 10% of the limited
liability company interests, respectively, in Compressco Argentina, and thereafter CFSI
contributed its 90% limited liability company interest in Compressco Argentina to
Argentina Sub 1 and TII sold its 10% limited liability company interest in Compressco
Argentina to Argentina Sub 2.
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A.12
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CFSI formed Compressco Dutch BV under the laws of the Netherlands and
contributed 18,000.00 to Compressco Dutch BV in exchange for all of the ownership
interests in Compressco Dutch BV (the
Compressco Dutch BV
Interests
).
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A.13
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CFSI formed Compressco Holdings under the Delaware LLC Act and contributed
$1,000 in exchange for all of the membership interests in Compressco Holdings (all such
membership interests, the
Compressco Holdings Interests
).
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A.14
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CFSI and Compressco Holdings formed Compressco Dutch Co-op under the laws of
the Netherlands, and contributed 990 and 10, respectively, in exchange for 99% and
1%, respectively, of the membership interests in Compressco Dutch Co-op.
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A.15
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The Partnership formed MLP Sub under the terms of the DGCL and contributed
$1,000 to MLP Sub in exchange for all of the shares of common stock of MLP Sub.
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WHEREAS
, in furtherance of the objectives and purposes set forth in the first two recitals
hereto, the Parties desire that each of the following transactions shall occur on the Closing Date
(as hereinafter defined):
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B.1
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CFSI shall convey and contribute to the General Partner all of CFSIs right,
title and interest in and to the Initial LP Interest.
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B.2
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TETRA shall convey and contribute to Compressco all of TETRAs right, title and
interest in all of the Intellectual Property owned by TETRA and used by CFSI and its
subsidiaries to conduct their businesses (such Intellectual Property, the
TETRA
Intellectual Property
).
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B.3
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Compressco shall convey and contribute to CFSI all of Compresscos right, title
and interest in (a) all of the Intellectual Property owned by Compressco and used by
CFSI and its subsidiaries to conduct their businesses (such Intellectual Property, the
Compressco Intellectual Property
) and (b) all of the TETRA Intellectual Property.
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3
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B.4
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Compressco shall convey and contribute to CFSI all of Compresscos right, title
and interest in all of the outstanding shares of common stock of Cansub, no par value
(the
Cansub Shares
).
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B.5
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CFSI shall sell to Cansub all of CFSIs right, title and interest in (a) all of
the Equipment owned and leased by CFSI to Cansub to conduct Cansubs Canada-based
production enhancement equipment rental business, including, but not limited to,
Equipment set forth on
Schedule 2
(such Equipment, the
Cansub Equipment
), (b)
all of the Equipment owned and used by CFSI to conduct CFSIs Indonesia-based
production enhancement equipment rental business, including, but not limited to,
Equipment set forth on
Schedule 3
(such Equipment, the
Indonesian Equipment
)
and (c) the production enhancement rental contracts pursuant to which CFSI conducts its
Indonesia-based production enhancement equipment rental business and all accounts
receivable associated with such contracts, including, but not limited to, production
enhancement rental contracts set forth on
Schedule 3
(such contracts and
accounts receivable, the
Indonesian Contracts
and, together with the Cansub Equipment
and Indonesian Equipment, the
Cansub Assets
) in exchange for $3,600,000 and an
obligation by Cansub to pay to CFSI an amount equal to $8,036,377 (such obligation, the
Cansub Loan
) under that Inter-Company Loan Agreement by and between CFSI and Cansub,
dated as of even date herewith (the
Cansub Loan Agreement
).
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B.6
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CFSI shall convey and contribute to Compressco Dutch BV all of CFSIs right,
title and interest in (a) all of the Cansub Shares, (b) all of the Mexico Sub 1
Interests, and (c) all of the Mexico Sub 2 Interests.
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B.7
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CFSI shall convey and contribute to Compressco Dutch Co-op and Compressco
Holdings all of CFSIs right, title and interest in 99.0% and 1.0% of the Compressco
Dutch BV Interests, respectively, and Compressco Holdings shall convey and contribute
to Compressco Dutch Co-op all of Compressco Holdings right, title and interest in such
1.0% of the Compressco Dutch BV Interests.
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B.8
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CFSI shall (a) convey and contribute to OPCO all of CFSIs right, title and
interest in (i) the production enhancement services contracts pursuant to which CFSI
conducts its U.S.-based production enhancement services business, including, but not
limited to, production enhancement services contracts set forth on
Schedule 4
(such contracts, the
Domestic Services Contracts
), (ii) all of CFSIs leasehold
interests in the U.S. Service Compressor Units, including, but not limited to,
leasehold interests set forth on
Schedule 5
(such leasehold interests, the
U.S. Leasehold Interests
), (iii) the Equipment owned and used by CFSI to conduct
CFSIs U.S.-based production enhancement services business, including, but not limited
to, Equipment set forth on
Schedule 6
(such Equipment, the
U.S. Service
Equipment
), (iv) all of the Leaseco Interests, (v) all of the membership interests in
Compressco Dutch Co-op that are owned by CFSI (the
CFSI Dutch Co-op Interest
), (vi)
all of the Compressco Holdings Interests, (viii) all of the Argentina Sub 1 Interests
and (viii) all of the Argentina Sub 2 Interests; and (b)
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assign to OPCO all of CFSIs right, title and interest in (i) the Leaseco Loan and
(ii) the Cansub Loan.
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B.9
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CFSI shall convey and contribute to the General Partner all of CFSIs right,
title and interest in (a) all of the OPCO Interests, (b) all of the CFSI Intellectual
Property, (c) all of the assets (other than any CFSI Intellectual Property, Indonesian
Equipment or Indonesian Contracts) and liabilities constituting CFSIs (i)
manufacturing business and (ii) production enhancement equipment rental business,
including, but not limited to, Assets & Liabilities set forth on
Schedule 7
(such assets and liabilities, the
MLP Sub Business
), and (d) all of CFSIs remaining
assets and liabilities that are not conveyed with the Previously Contributed Assets,
including, but not limited to, Assets & Liabilities set forth on
Schedule 8
(such assets and liabilities, collectively, the
Other Assets & Liabilities
and,
together with such OPCO Interests, the CFSI Intellectual Property and the MLP Sub
Business, the
GP Contribution
), in exchange for the assumption by the General Partner
of a $32.2 million liability owed by CFSI to Tetra Financial Services, Inc. (the
Intercompany Liability
).
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B.10
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The Partnership shall (a) redeem the Initial LP Interest and the Initial GP
Interest in the Partnership held by the General Partner and (b) refund and distribute
to the General Partner the initial capital contributions made by CFSI and the General
Partner to the Partnership, along with any interest or other profit that resulted from
the investment or other use of such initial capital contributions.
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B.11
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The General Partner shall convey and contribute to the Partnership all of the
General Partners right, title and interest in the GP Contribution, in exchange for (a)
a 2.0% general partner interest in the Partnership, (b) the Incentive Distribution
Rights, (c) 5,303,546 Common Units, (d) 5,521,094 Subordinated Units, (e) a right to
receive the proceeds from the Over-Allotment Option (as hereinafter defined) and/or
additional Common Units (to the extent the Over-Allotment Option is not exercised) and
(f) the assumption by the Partnership of the Intercompany Liability.
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B.12
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TII shall (a) cancel its lease agreements with respect to the Equipment that
TII currently leases to CP Mexico and PE Mexico, including, but not limited to,
Equipment set forth on
Schedule 9
(such Equipment, the
TII Equipment
), and
convey and contribute to the Partnership all of TIIs right, title and interest in and
to the TII Equipment, and (b) convey and contribute to the Partnership all of TIIs
right, title and interest in all of the membership interests (such membership
interests, the
Providence Interest
) of Providence Natural Gas, LLC, an Oklahoma
limited liability company and wholly owned subsidiary of TII, and TIIs 0.002%
ownership interest in the membership interests of PE Mexico (such 0.002%, the
PE
Mexico Interest
) (such TII Equipment, the Providence Interest and the PE Mexico
Interest, together, the
TII Contribution
) in exchange for 723,211 Common Units and
752,876 Subordinated Units.
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B.13
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The Partnership shall convey and contribute to OPCO all of the Partnerships
right, title and interest in and to (a) the TII Contribution, (b) a Joint Intellectual
Property Interest and (c) the Other Assets & Liabilities.
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B.14
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OPCO shall (a) convey and contribute (i) to Compressco Holdings all of OPCOs
right, title and interest in 1.0% of the Providence Interest, and Compressco Holdings
shall convey and contribute to Compressco Dutch Co-op all of Compressco Holdings
right, title and interest in such 1.0% of the Providence Interest, (ii) to Compressco
Dutch Co-op all of OPCOs right, title and interest in 99.0% of the Providence
Interest, and (iii) to Leaseco all of OPCOs right, title and interest in and to the
TII Equipment, and (b) sell to Compressco Dutch BV all of OPCOs right, title and
interest in the PE Mexico Interest, in exchange for $526
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B.15
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Compressco Dutch Co-op shall convey and contribute to Compressco Dutch BV all
of Compressco Dutch Co-ops right, title and interest in the Providence Interest.
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B.16
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Pursuant to the Underwriting Agreement (as hereinafter defined), the
Underwriters (as hereinafter defined) shall contribute $53.4 million in cash to the
Partnership in exchange for 2,670,000 Common Units.
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B.17
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The public shall purchase, through the Underwriters, 2,670,000 Common Units for
an aggregate price of $53.4 million in cash, less amounts of (a) $3,417,600 in the
aggregate (the
Spread
), payable to the Underwriters for the Underwriters discount of
6.4%, and (b) $133,500 in the aggregate (the
Structuring Fee
), payable to Raymond
James & Associates, Inc. and J.P. Morgan Securities, Inc. for a structuring fee.
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B.18
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The Partnership shall use a portion of the net proceeds received from the IPO
to (a) pay IPO-related transaction expenses (excluding the Spread and the Structuring
Fee) estimated to be approximately $7.3 million, (b) pay TETRA Financial Services, Inc.
to retire the Intercompany Liability, and (c) pay financing fees and related
transactions costs incurred in connection with the placement of a new revolving credit
facility of the Partnership, and the Partnership shall convey and contribute to OPCO
the remaining net proceeds of the IPO for use in growing its wellhead compression-based
and other related production enhancement services business.
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B.19
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The Partnership shall convey and contribute to MLP Sub all of the Partnerships
right, title and interest in (a) the MLP Sub Business and (b) a Joint Intellectual
Property Interest.
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B.20
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Leaseco and Compressco Dutch BV shall enter into a Equipment Rental Contract,
dated of even date herewith (the
Lease Agreement
), pursuant to which Leaseco shall
lease to Compressco Dutch BV the TII Equipment.
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B.21
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Compressco Dutch BV, CP Mexico and PE Mexico shall enter into a Equipment
Rental Subcontract, dated of even date herewith (a
Sublease Agreement
),
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pursuant to which Compressco Dutch BV shall sublease to CP Mexico and PE Mexico the
TII Equipment.
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B.22
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If the Underwriters exercise the Over-Allotment Option, in whole or in part,
the Partnership shall distribute the exercise proceeds (excluding the Spread and the
Structuring Fee) to the General Partner. If the Over-Allotment Option is not exercised
or is partially exercised, then the Partnership shall distribute any and all Common
Units not sold pursuant to the exercise of the Over-Allotment Option to the General
Partner.
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NOW
,
THEREFORE
, in consideration of the mutual covenants, representations, warranties and
agreements herein contained, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
The terms set forth below in this ARTICLE I shall have the meanings ascribed to them below:
Assets & Liabilities
means, with respect to any business, all Equipment, Owned Real
Property, Tangible Personal Property, Intellectual Property, Permits, Contracts, Books and Records,
Rights and Claims, Other Intangible Assets, all accrued expenses and any scheduled liabilities of
the business.
Books and Records
means collectively books, records, ledgers, files, invoices, documents,
work papers, correspondence, lists (including customer lists and supplier lists), all tangible and
digital or electronic copies of technology, designs, formulae (chemical and otherwise), copies of
software, databases, procedures, schedules, methods, discoveries, processes, techniques, research
and development, technical data, tools, materials, specifications, information technology
infrastructure, apparatuses, creations, improvements, works of authorship in any media,
confidential, proprietary or non-public information, and other similar materials.
CFSI Intellectual Property
means (i) all Intellectual Property owned by CFSI and used or
held by CFSI and used by CFSI to conduct its businesses, (ii) the TETRA Intellectual Property and
(iii) the Compressco Intellectual Property.
Closing Date
has the meaning assigned to such term in the Underwriting Agreement.
Commission
means the U.S. Securities and Exchange Commission.
Common Unit
has the meaning assigned to such term in the Partnership Agreement.
Compressor Unit
means a wellhead compressor unit, including GasJack
®
compressor units and
VJack compressor units.
Contract
means any contract, agreement, option, right to acquire, preferential purchase
right, preemptive right, warrant, indenture, debenture, note, bond, loan, loan agreement,
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collective bargaining agreement, lease, mortgage, franchise, license, purchase order, bid,
commitment, letter of credit, guaranty, surety or any other legally binding arrangement, whether
oral or written.
Effective Time
means the time at which the Registration Statement is declared effective by
the Commission.
Equipment
means all Compressor Units, well monitoring assets, automated sand separation
assets, together with any tangible components thereof, all related appliances, parts, accessories,
appurtenances, accessions, additions, improvements and replacements thereto, all other equipment or
components of any nature from time to time incorporated or installed therein and all substitutions
for any of the foregoing.
Incentive Distribution Rights
has the meaning assigned to such term in the Partnership
Agreement.
Intellectual Property
means all of the following intellectual property owned or held by the
conveying entity: (a) patents and patent applications; (b) registered and unregistered copyrights
and copyright applications; (c) trademarks, service marks, trade names, logos, and trade dress,
common law or statutory, together with the goodwill associated therewith, and any registrations or
applications for the foregoing; (d) domain names; (e) trade secrets and confidential information,
including but not limited to, confidential manufacturing and marketing information; and (f) the
right to sue and collect for past, present and future infringement and misappropriation of all such
intellectual property.
Joint Intellectual Property Interest
shall mean a joint and undivided interest in and to the
CFSI Intellectual Property, which joint and undivided interest is subject to terms and conditions
of the Joint Ownership Interest Agreement, dated of even date hereof, by and between MLP Sub and
OPCO.
Other Intangible Assets
means any other intangible assets included in the balance sheet of
the conveying entity, including all goodwill associated therewith.
Over-Allotment Option
has the meaning assigned to such term in the Partnership Agreement.
Owned Real Property
means all real property owned and used in connection with the ownership
and operations of the business.
Partnership Agreement
means the Amended and Restated Agreement of Limited Partnership of the
Partnership, dated as of the date hereof.
Permits
means all permits, licenses, certificates, authorizations and approvals granted by
any governmental authority and used or held in connection with the operation of the business.
Previously Contributed Assets
means the Initial LP Interest, the Cansub Shares, the Cansub
Assets, the Mexico Sub 1 Interest, the Mexico Sub 2 Interest, the Cansub Loan and Cansub Loan
Agreement, the Compressco Dutch BV Interests, the Domestic Services Contracts,
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the U.S. Leasehold Interests, the U.S. Service Equipment, the Leaseco Interests, the CFSI
Dutch Co-op Interest, the Compressco Holdings Interests, the Argentina Sub 1 Interests, the
Argentina Sub 2 Interests, the Leaseco Loan and Leaseco Loan Agreement, the OPCO Interests, the
CFSI Intellectual Property and the MLP Sub Business and all Assets & Liabilities conveyed
therewith.
Registration Statement
means the Registration Statement on Form S-1 filed with the
Commission (Registration No. 333-155260), as amended and effective at the Effective Time.
Rights and Claims
means all of the conveying entitys rights, claims, counterclaims, cross
claims, credits, causes of action or rights of set-off against third parties relating to the other
Assets & Liabilities, including, without limitation, unliquidated rights under manufacturers and
vendors warranties and claims under or against insurance policies.
Securities Act
means the Securities Act of 1933, as amended.
Subordinated Unit
has the meaning assigned to such term in the Partnership Agreement.
Tangible Personal Property
means all of the Equipment, tools, machinery, parts, products,
materials, supplies, cars, trucks, trailers and other rolling stock and each other item of tangible
personal property used or owned in the conduct of the business.
Underwriters
means those underwriters listed in the Underwriting Agreement.
Underwriting Agreement
means that certain Underwriting Agreement between Raymond James &
Associates, Inc. and J.P. Morgan Securities, Inc., as representatives of the Underwriters, the
General Partner and the Partnership, dated as of June 14, 2011.
ARTICLE II
CONTRIBUTION, SALE, ACKNOWLEDGEMENTS AND DISTRIBUTIONS
Section 2.1
Contribution of CFSIs Limited Partner Interest in the Partnership to the
General Partner
. CFSI hereby grants, contributes, conveys, assigns, transfers, sets over and
delivers to the General Partner, its successors and assigns, for its and their own use forever, all
of CFSIs right, title and interest in and to the Initial LP Interest, and the General Partner
hereby accepts all of CFSIs right, title and interest in and to the Initial LP Interest.
Section 2.2
Contribution of Intellectual Property by TETRA to Compressco
. TETRA
hereby grants, contributes, conveys, assigns, transfers, sets over and delivers to Compressco, its
successors and its assigns, for its and their own use forever, all of TETRAs right, title and
interest in and to all of the TETRA Intellectual Property, and Compressco hereby accepts all of
TETRAs right, title and interest in and to the TETRA Intellectual Property.
Section 2.3
Contribution of Intellectual Property by Compressco to CFSI
. Compressco
hereby grants, contributes, conveys, assigns, transfers, sets over and delivers to CFSI, its
successors and its assigns, for its and their own use forever, all of Compresscos right, title and
interest in and to all of the Compressco Intellectual Property, and CFSI hereby accepts all of
Compresscos right, title and interest in and to the Compressco Intellectual Property.
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Section 2.4
Contribution of the Cansub Shares by Compressco to CFSI
. Compressco
hereby grants, contributes, conveys, assigns, transfers, sets over and delivers to CFSI, its
successors and its assigns, for its and their own use forever, all of Compresscos right, title and
interest in and to all of the Cansub Shares, and CFSI hereby accepts all of Compresscos right,
title and interest in and to the Cansub Shares.
Section 2.5
Sale of the Cansub Assets by CFSI to Cansub
. CFSI hereby grants,
contributes, conveys, assigns, transfers, sets over and delivers to Cansub, its successors and its
assigns, for its and their own use forever, all of CFSIs right, title and interest in and to the
Cansub Assets, and Cansub hereby accepts all of CFSIs right, title and interest in and to the
Cansub Assets, in exchange for $3,600,000 and the Cansub Loan, and Cansub hereby agrees to pay,
perform and discharge, as and when due, all of the obligations of Cansub under the Cansub Loan
Agreement accruing on and after the date of this Agreement.
Section 2.6
Contribution of the Cansub Shares, the Mexico Sub 1 Interests and the Mexico
Sub 2 Interests by CFSI to Compressco Dutch BV
. CFSI hereby grants, contributes, conveys,
assigns, transfers, sets over and delivers to Compressco Dutch BV, its successors and its assigns,
for its and their own use forever, all of CFSIs right, title and interest in and to (a) all of the
Cansub Shares, (b) all of the Mexico Sub 1 Interests and (c) all of the Mexico Sub 2 Interests, and
Compressco Dutch BV hereby accepts all of CFSIs right, title and interest in and to such ownership
interests.
Section 2.7
Contribution and Transfer of Ownership Interests in Compressco Dutch BV by
CFSI to Compressco Dutch Co-op and Compressco Holdings
. (a) CFSI hereby agrees to contribute
and transfer the full legal and beneficial title to 17,820 shares in the issued share capital of
Compressco Dutch BV (being 99.0% of the total issued share capital) to Compressco Dutch Co-op, its
successors and its assigns, for its and their own use forever, and Compressco Dutch Co-op hereby
agrees to accept the full legal and beneficial title to such shares, each by executing a Dutch
notarial deed of transfer of shares, as a result of which the membership account of CFSI shall be
credited with the value of the 17,820 contributed shares in accordance with article 14 paragraph 2
of the articles of association of Compressco Dutch Co-op, and (b) CFSI hereby agrees to contribute
and transfer the full legal and beneficial title to 180 shares in the issued share capital of
Compressco Dutch BV (being 1.0% of the total issued share capital) to Compressco Holdings, its
successors and its assigns, for its and their own use forever, and Compressco Holdings hereby
agrees to accept the full legal and beneficial title to such shares, each by executing a Dutch
notarial deed of transfer of shares. Compressco Dutch BV undertakes to acknowledge the transfers of
the shares by co-signing the Dutch notarial deeds of transfer and hereby agrees to enter the
transfers of the shares in its shareholders register forthwith.
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Section 2.8
Contribution of 1.0% of Ownership Interests in Compressco Dutch BV by
Compressco Holdings to Compressco Dutch Co-op
. Compressco Holdings hereby agrees to contribute
and transfer the full legal and beneficial title to 180 shares in the issued share capital of
Compressco Dutch BV (being 1.0% of the total issued share capital) to Compressco Dutch Co-op, its
successors and its assigns, for its and their own use forever, and Compressco Dutch Co-op hereby
agrees to accept the full legal and beneficial title to such shares, each by executing a Dutch
notarial deed of transfer of shares, as a result of which the membership account of Compressco
Holdings shall be credited with the value of the 180 contributed shares in accordance with article
14 paragraph 2 of the articles of association of Compressco Dutch Co-op. Compressco Dutch BV
undertakes to acknowledge the transfer of the shares by co-signing the Dutch notarial deed of
transfer and hereby agrees to enter the transfer of the shares in its shareholders register
forthwith.
Section 2.9
Contribution of the Domestic Services Contracts, U.S. Leasehold Interests,
U.S. Service Equipment, Leaseco Loan, Leaseco Interests, Ownership Interests in Dutch Co-op,
Compressco Holdings Interest, Cansub Loan, Argentina Sub 1 Interests and Argentina Sub 2 Interests
by CFSI to OPCO
. CFSI hereby grants, distributes, conveys, assigns, transfers, sets over and
delivers to OPCO, its successors and assigns, for its and their own use forever, all of CFSIs
right, title and interest in and to (a) the Domestic Services Contracts, (b) the U.S. Leasehold
Interests, (c) the U.S. Service Equipment, (d) the Leaseco Loan, (e) all of the Leaseco Interests,
(f) the CFSI Dutch Co-op Interest, (g) all of the Compressco Holdings Interests, (h) the Cansub
Loan; (i) all of the Argentina Sub 1 Interests and (j) all of the Argentina Sub 2 Interests, and
OPCO hereby accepts all of CFSIs right, title and interest in and to each of the items set forth
in clauses (a) through (j) above, assumes all of CFSIs duties and obligations under each of the
items set forth in clauses (a), (b), (d) and (h) above, and agrees to pay, perform and discharge,
as and when due, all of CFSIs obligations under each of the agreements governing the items set
forth in clauses (a), (b), (d) and (h) accruing on and after the date of this Agreement.
Section 2.10
Contribution of the GP Contribution by CFSI to the General Partner
. CFSI
hereby grants, contributes, conveys, assigns, transfers, sets over and delivers to the General
Partner, its successors and its assigns, for its and their own use forever, all of CFSIs right,
title and interest in and to the GP Contribution, and the General Partner hereby accepts all of
CFSIs right, title and interest in and to the GP Contribution, assumes all of CFSIs duties and
obligations under the liabilities of the MLP Sub Business and the Other Assets & Liabilities, and
agrees to pay, perform and discharge, as and when due, all of the obligations of CFSI under the
agreements governing the liabilities of the MLP Sub Business and the Other Assets & Liabilities
accruing on and after the date of this Agreement, in exchange for the assumption by the General
Partner of the Intercompany Liability, and the General Partner hereby accepts the Intercompany
Liability, assumes all of CFSIs duties and obligations under the Intercompany Liability, and
agrees to pay, perform and discharge, as and when due, all of CFSIs obligations under the
Intercompany Liability accruing on and after the date of this Agreement.
Section 2.11
Redemption of the Initial Partner Interests in the Partnership and the Return
of Initial Capital Contributions
. The Partnership (a) hereby redeems the Initial LP Interest
and the Initial GP Interest in the Partnership held by the General Partner and (b) hereby refunds
and distributes to the General Partner the initial capital contributions made by CFSI and
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the General Partner to the Partnership along with any interest or other profit that resulted
from the investment or other use of such initial capital contributions.
Section 2.12
Contribution of the GP Contribution by the General Partner to the
Partnership.
The General Partner hereby grants, contributes, conveys, assigns, transfers, sets
over and delivers to the Partnership, its successors and its assigns, for its and their own use
forever, all of the General Partners right, title and interest in and to the GP Contribution, and
the Partnership hereby accepts all of the General Partners right, title and interest in and to the
GP Contribution, assumes all of the General Partners duties and obligations under the liabilities
of the MLP Sub Business and the Other Assets & Liabilities, and agrees to pay, perform and
discharge, as and when due, all of the obligations of the General Partner under the agreements
governing the liabilities of the MLP Sub Business and the Other Assets & Liabilities accruing on
and after the date of this Agreement, in exchange for (a) the assumption of the Intercompany
Liability by the Partnership, and the Partnership hereby accepts the Intercompany Liability,
assumes all of the General Partners duties and obligations under the Intercompany Liability, and
agrees to pay, perform and discharge, as and when due, all of the obligations of the General
Partner under the Intercompany Liability accruing on and after the date of this Agreement, and (b)
(i) a 2.0% general partner interest in the Partnership (ii) the Incentive Distribution Rights,
(iii) 5,303,546 Common Units, (iv) 5,521,094 Subordinated Units, and (v) the right to receive
proceeds from the Over-Allotment Option and/or additional Common Units (to the extent the
Over-Allotment Option is not exercised), and the General Partner hereby accepts each of the items
set forth in clauses (i) through (v) above.
Section 2.13
Cancellation of TII Equipment Rental Contracts by TII, CP Mexico and PE
Mexico
.
(a) Each of TII and CP Mexico hereby acknowledge the cancellation and termination of
that Equipment Rental Contract, dated November 1, 2008, by and between TII and CP Mexico, pursuant
to which TII leased compressor units and related equipment to CP Mexico, and (b) each of TII and PE
Mexico hereby acknowledge the cancellation and termination of that Equipment Rental Contract, dated
November 1, 2008, by and between TII and PE Mexico, pursuant to which TII leased compressor units
and related equipment to PE Mexico.
Section 2.14
Contribution of the TII Contribution by TII to the Partnership
. TII
hereby grants, contributes, conveys, assigns, transfers, sets over and delivers to the Partnership,
its successors and its assigns, for its and their own use forever, all of TIIs right, title and
interest in and to the TII Contribution, and the Partnership hereby accepts all of TIIs right,
title and interest in and to the TII Contribution, in exchange for (a) 723,211 Common Units, and
(b) 752,876 Subordinated Units, and TII hereby accepts such Common Units and Subordinated Units.
Section 2.15
Contribution of the TII Contribution and the Other Assets & Liabilities by
the Partnership to OPCO
. The Partnership hereby grants, contributes, conveys, assigns,
transfers, sets over and delivers to OPCO, its successors and its assigns, for its and their own
use forever, all right, title and interest in and to the TII Contribution, a Joint Intellectual
Property Interest and the Other Assets & Liabilities, and OPCO hereby accepts all of the
Partnerships right, title and interest in and to the TII Contribution, such Joint Intellectual
Property Interest, and the Other Assets & Liabilities, assumes all of the Partnerships duties and
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obligations under the liabilities of the Other Assets & Liabilities, and agrees to pay,
perform and discharge, as and when due, all of the obligations of the Partnership under the
liabilities of the Other Assets & Liabilities accruing on and after the date of this Agreement.
Section 2.16
Contribution of Ownership Interests in Providence by OPCO to Compressco
Holdings and Compressco Dutch Co-op
. (a) OPCO hereby grants, contributes, conveys, assigns,
transfers, sets over and delivers to Compressco Holdings, its successors and its assigns, for its
and their own use forever, all of OPCOs right, title and interest in and to 1.0% of the Providence
Interest, and Compressco Holdings hereby accepts all of OPCOs right, title and interest in and to
such 1.0% of the Providence Interest, and (b) OPCO hereby grants, contributes, conveys, assigns,
transfers, sets over and delivers to Compressco Dutch Co-op, its successors and its assigns, for
its and their own use forever, all of OPCOs right, title and interest in and to 99.0% of the
Providence Interest, and Compressco Dutch Co-op hereby accepts all of OPCOs right, title and
interest in and to such 99.0% of the Providence Interest, as a result of which the membership
account of OPCO shall be credited with the total value of the above-mentioned contribution of 99.0%
of the Providence Interest, in accordance with article 14 paragraph 2 of the articles of
association of Compressco Dutch Co-op.
Section 2.17
Contribution of Ownership Interests in Providence by Compressco Holdings to
Compressco Dutch Co-op
. Compressco Holdings hereby grants, contributes, conveys, assigns,
transfers, sets over and delivers to Compressco Dutch Co-op, its successors and its assigns, for
its and their own use forever, all of Compressco Holdings right, title and interest in and to 1.0%
of the Providence Interest, and Compressco Dutch Co-op hereby accepts all of Compressco Holdings
right, title and interest in and to such 1.0% of the Providence Interest, as a result of which the
membership account of Compressco Holdings shall be credited with the total value of the
above-mentioned contribution of 1.0% of the Providence Interest, in accordance with article 14
paragraph 2 of the articles of association of Compressco Dutch Co-op.
Section 2.18
Contribution of the TII Equipment by OPCO to Leaseco
. OPCO hereby
grants, contributes, conveys, assigns, transfers, sets over and delivers to Leaseco, its successors
and its assigns, for its and their own use forever, all right, title and interest in and to the TII
Equipment, and Leaseco hereby accepts all of OPCOs right, title and interest in and to the TII
Equipment.
Section 2.19
Sale of PE Mexico Interest by OPCO to Compressco Dutch BV
. OPCO hereby
grants, contributes, conveys, assigns, transfers, sets over and delivers to Compressco Dutch BV,
its successors and its assigns, for its and their own use forever, all of OPCOs right, title and
interest in and to the PE Mexico Interest, and Compressco Dutch BV hereby accepts all of OPCOs
right, title and interest in and to the PE Mexico Interest, in exchange for $526.
Section 2.20
Contribution of Ownership Interests in Providence by Compressco Dutch Co-op
to Compressco Dutch BV
. Compressco Dutch Co-op hereby grants, contributes, conveys, assigns,
transfers, sets over and delivers to Compressco Dutch BV, its successors and its assigns, for its
and their own use forever, all of Compressco Dutch Co-ops right, title and interest in and to the
Providence Interest, and Compressco Dutch BV hereby accepts all of Compressco Dutch Co-ops right,
title and interest in and to such ownership interests.
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Section 2.21
Underwriters Cash Contribution
. The Parties hereby acknowledge that the
Underwriters have, pursuant to the Underwriting Agreement, made a capital contribution to the
Partnership of $53.4 million in cash (or, a net capital contribution to the Partnership of
$49,848,900 after the Spread and the Structuring Fee payable to Raymond James & Associates, Inc.
and J.P. Morgan Securities, Inc), in exchange for the issuance by the Partnership to the
Underwriters of 2,670,000 Common Units.
Section 2.22
Payment of Transaction Expenses by the Partnership and Contribution of Net
Proceeds by the Partnership to OPCO
. The Parties hereby acknowledge (a) the payment by the
Partnership, in connection with the transactions contemplated hereby, of estimated transaction
expenses in the amount of approximately $7.3 million (exclusive of the Spread and the Structuring
Fee), (b) the payment of $32.2 million to TETRA Financial Services to retire the Intercompany
Liability, (c) the payment of $375,000 of financing fees and related transactions costs incurred in
connection with the placement of a new revolving credit facility of the Partnership, and (d) the
contribution by the Partnership to OPCO of $9.93 million of the net proceeds received from the IPO
for use in growing the Partnerships wellhead compression-based and other related production
enhancement services business.
Section 2.23
Contribution of the MLP Sub Business by the Partnership to MLP Sub
. The
Partnership hereby grants, contributes, conveys, assigns, transfers, sets over and delivers to MLP
Sub, its successors and its assigns, for its and their own use forever, all right, title and
interest in and to the MLP Sub Business and a Joint Intellectual Property Interest, and MLP Sub
hereby accepts such MLP Sub Business and such Joint Intellectual Property Interest, assumes all of
the Partnerships duties and obligations under the liabilities of the MLP Sub Business, and agrees
to pay, perform and discharge, as and when due, all of the obligations of the Partnership under the
liabilities of the MLP Sub Business accruing on and after the date of this Agreement.
Section 2.24
Lease Agreement by and between Leaseco and Compressco Dutch BV
. Leaseco
and Compressco Dutch BV hereby acknowledge the effectiveness of the Lease Agreement, pursuant to
which Leaseco shall lease to Compressco Dutch BV the TII Equipment.
Section 2.25
Sublease Agreement by and among Compressco Dutch BV, CP Mexico and PE
Mexico
. Compressco Dutch BV, CP Mexico and PE Mexico hereby acknowledge the effectiveness of
the Sublease Agreement, pursuant to which Compressco Dutch BV shall sublease to CP Mexico and PE
Mexico the TII Equipment.
ARTICLE III
ADDITIONAL TRANSACTIONS
Section 3.1
Sale and Purchase of Additional Common Units
. If the Over-Allotment
Option is exercised in whole or in part, the Underwriters shall contribute additional cash to the
Partnership (the
Proceeds
), in exchange for up to an additional 400,500 Common Units on the basis
of the IPO price per Common Unit set forth in the Registration Statement, net of the Spread and the
Structuring Fee.
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Section 3.2
Exercise of the Over-Allotment Option
. The Parties hereby acknowledge
that, if the Underwriters elect to exercise the Over-Allotment Option, the Partnership shall
distribute that portion of the Proceeds to the General Partner that is equal in value to the amount
by which the value of the GP Contribution exceeded the value of the Common Units and Subordinated
Units received by the General Partner in exchange for the GP Contribution. If the Underwriters do
not exercise or partially exercise the Over-Allotment Option, the Partnership shall distribute to
the General Partner the Common Units that are not purchased by the Underwriters pursuant to the
Over-Allotment Option.
ARTICLE IV
FURTHER ASSURANCES
From time to time after the Closing Date, and without any further consideration, the Parties
hereby agree to execute, acknowledge and deliver all such additional deeds, assignments, bills of
sale, conveyances, instruments, notices, releases, acquittances and other documents, and to do all
such other acts and things, all in accordance with applicable law, as may be necessary or
appropriate (a) more fully to assure that the applicable Parties own all of the properties, rights,
titles, interests, estates, remedies, powers and privileges granted by this Agreement, or which are
intended to be so granted, (b) more fully and effectively to vest in the applicable Parties and
their respective successors and assigns beneficial and record title to the interests contributed
and assigned by this Agreement or intended to be so and (c) more fully and effectively to carry out
the purposes and intent of this Agreement.
ARTICLE V
CLOSING DATE
Notwithstanding anything contained in this Agreement to the contrary, none of the provisions
of ARTICLE II and ARTICLE III of this Agreement shall be operative or have any effect until the
Closing Date, at which time all the provisions of ARTICLE II of this Agreement shall be effective
and operative in accordance with ARTICLE VI, without further action by any Party hereto.
ARTICLE VI
MISCELLANEOUS
Section 6.1
Order of Completion of Transactions
. The transactions provided for in
Article II and Article III of this Agreement shall be completed on the Closing Date in the
following order: first, the transactions provided for in Article II shall be completed on the
Closing Date in the order set forth therein; and second, following the completion of the
transactions provided for in Article II, the transactions provided for in Article III, if they
occur, shall be completed.
Section 6.2
Headings; References; Interpretation
. All Article and Section headings in
this Agreement are for convenience only and shall not be deemed to control or affect the meaning or
construction of any of the provisions hereof. The words hereof, herein and hereunder and
words of similar import, when used in this Agreement, shall refer to this Agreement as a whole,
including, without limitation, all Schedules and Exhibits attached hereto,
15
and not to any particular provision of this Agreement. All references herein to Articles,
Sections, Schedules and Exhibits shall, unless the context requires a different construction, be
deemed to be references to the Articles and Sections of this Agreement and the Schedules and
Exhibits attached hereto, and all such Schedules and Exhibits attached hereto are hereby
incorporated herein and made a part hereof for all purposes. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall include all other
genders, and the singular shall include the plural and vice versa. The use herein of the word
including following any general statement, term or matter shall not be construed to limit such
statement, term or matter to the specific items or matters set forth immediately following such
word or to similar items or matters, whether or not non-limiting language (such as without
limitation, but not limited to, or words of similar import) is used with reference thereto, but
rather shall be deemed to refer to all other items or matters that could reasonably fall within the
broadest possible scope of such general statement, term or matter.
Section 6.3
Successors and Assigns
. This Agreement shall be binding upon and inure to
the benefit of the Parties and their respective successors and assigns.
Section 6.4
No Third-Party Rights
. The provisions of this Agreement are intended to
bind the Parties as to each other and are not intended to and do not create rights in any other
person or confer upon any other person any benefits, rights or remedies, and no person is or is
intended to be a third party beneficiary of any of the provisions of this Agreement.
Section 6.5
Counterparts
. This Agreement may be executed in any number of counterparts
with the same effect as if all signatories had signed the same document. All counterparts shall be
construed together and shall constitute one and the same instrument.
Section 6.6
Choice of Law
. This Agreement shall be subject to and governed by the laws
of the State of Delaware. Each Party hereby submits to the jurisdiction of the state and federal
courts in the State of Delaware.
Section 6.7
Severability
. If any of the provisions of this Agreement are held by any
court of competent jurisdiction to contravene, or to be invalid under, the laws of any political
body having jurisdiction over the subject matter hereof, such contravention or invalidity shall not
invalidate the entire Agreement. Instead, this Agreement shall be construed as if it did not
contain the particular provisions or provisions held to be invalid and an equitable adjustment
shall be made and necessary provision added so as to give effect to the intention of the Parties as
expressed in this Agreement at the time of execution of this Agreement.
Section 6.8
Amendment or Modification
. This Agreement may be amended or modified from
time to time only by the written agreement of all the Parties. Each such instrument shall be
reduced to writing and shall be designated on its face as an amendment to this Agreement.
Section 6.9
Integration
. This Agreement and the instruments referenced herein
supersede all previous understandings or agreements among the Parties, whether oral or written,
with respect to the subject matter of this Agreement and such instruments. This Agreement and such
instruments contain the entire understanding of the Parties with respect to the subject matter
16
hereof and thereof. No understanding, representation, promise or agreement, whether oral or
written, is intended to be or shall be included in or form part of this Agreement unless it is
contained in a written amendment hereto executed by the Parties after the date of this Agreement.
Section 6.10
Deed; Bill of Sale; Assignment and Assumption Agreement
. To the extent
required and permitted by applicable law, this Agreement shall also constitute a deed, bill of
sale or assignment and assumption agreement of the assets, interests and obligations granted,
contributed, conveyed, assigned, transferred, set over and delivered herein.
(Remainder of page intentionally left blank. Signature pages follow.)
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the date
first above written.
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COMPRESSCO, INC.
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By:
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/s/
Ronald J. Foster
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Name:
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Ronald J. Foster
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Title:
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President
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COMPRESSCO FIELD SERVICES, INC.
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By:
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/s/
Ronald J. Foster
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Name:
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Ronald J. Foster
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Title:
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President
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COMPRESSCO CANADA, INC.
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By:
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/s/
Ronald J. Foster
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Name:
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Ronald J. Foster
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Title:
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President
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COMPRESSCO DE MEXICO, S. DE R.L. DE C.V.
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By:
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/s/
Philip N. Longorio
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Name:
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Philip N. Longorio
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Title:
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President
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COMPRESSCO PARTNERS GP INC.
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By:
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/s/
Ronald J. Foster
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Name:
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Ronald J. Foster
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Title:
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President
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CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
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COMPRESSCO PARTNERS, L.P.
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By:
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Compressco Partners GP Inc.,
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its general partner
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By:
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/s/ Ronald J. Foster
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Name:
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Ronald J. Foster
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Title:
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President
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COMPRESSCO PARTNERS OPERATING, LLC
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By:
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Compressco Field Services, Inc.,
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its sole member
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By:
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/s/ Ronald J. Foster
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Name:
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Ronald J. Foster
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Title:
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President
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COMPRESSCO NETHERLANDS B.V.
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By:
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Intertrust (Netherlands) B.V.
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By:
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/s/
A. Konijn
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Name:
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A. Konijn
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Title:
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Managing Director
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COMPRESSCO HOLDINGS, LLC
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By:
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Compressco Field Services, Inc.,
its sole member
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By:
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/s/ Ronald J. Foster
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Name:
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Ronald J. Foster
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Title:
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President
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CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
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COMPRESSCO NETHERLANDS
COÖPERATIEF U.A.
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By:
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Intertrust (Netherlands) B.V.
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By:
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/s/
A.Konijn
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Name:
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A.Konijn
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Title:
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Managing Director
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COMPRESSCO PARTNERS SUB, INC.
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By:
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/s/ Ronald J. Foster
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Name:
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Ronald J. Foster
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Title:
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President
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TETRA INTERNATIONAL INCORPORATED
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By:
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/s/ Stuart M. Brightman
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Name:
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Stuart M. Brightman
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Title:
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President
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PRODUCTION ENHANCEMENT MEXICO,
S.
DE R.L. DE C.V.
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By:
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/s/ Bass C. Wallace
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Name:
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Bass C. Wallace
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Title:
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Secretary
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TETRA TECHNOLOGIES INC.
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By:
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/s/
Stuart M. Brightman
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Name:
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Stuart M. Brightman
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Title:
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President and Chief Executive Officer
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CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
SCHEDULE 1
U.S. SERVICE COMPRESSOR UNITS
1-1
SCHEDULE 2
CANSUB EQUIPMENT
2-1
SCHEDULE 3
INDONESIAN EQUIPMENT and INDONESIAN CONTRACTS
3-1
SCHEDULE 4
DOMESTIC SERVICES CONTRACTS
4-1
SCHEDULE 5
U.S. LEASEHOLD INTERESTS
5-1
SCHEDULE 6
U.S. SERVICE EQUIPMENT
6-1
SCHEDULE 7
MLP SUB BUSINESS
7-1
SCHEDULE 8
OTHER ASSETS & LIABILITIES
8-1
SCHEDULE 9
TII EQUIPMENT
9-1
Exhibit 10.2
OMNIBUS AGREEMENT
among
TETRA TECHNOLOGIES, INC.,
COMPRESSCO PARTNERS GP INC.,
and
COMPRESSCO PARTNERS, L.P.
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TABLE OF CONTENTS
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ARTICLE I
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DEFINITIONS
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1.1 Definitions
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1
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ARTICLE II
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SERVICES
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2.1 Services and Personnel Provided to the Partnership Group
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6
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2.2 Subcontract Services Provided between the Partnership Entities and TETRA Entities
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8
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ARTICLE III
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EQUIPMENT TRANSFERS
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3.1 Equipment Transfers between the Partnership Entities and TETRA Entities
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8
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ARTICLE IV
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INDEMNIFICATION
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4.1 Environmental Indemnification
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9
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4.2 Additional Indemnification
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10
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4.3 Limitations Regarding Indemnification
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11
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4.4 Indemnification Procedures
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11
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ARTICLE V
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MISCELLANEOUS
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5.1 Choice of Law; Submission to Jurisdiction
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12
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5.2 Notice
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12
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5.3 Entire Agreement
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13
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5.4 Termination
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13
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5.5 Effect of Waiver or Consent
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13
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5.6 Amendment or Modification
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13
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5.7 Assignment; Third Party Beneficiaries
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13
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5.8 Counterparts
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13
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5.9 Severability
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14
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5.10 Gender, Parts, Articles and Sections
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14
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5.11 Further Assurances
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14
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5.12 Withholding or Granting of Consent
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14
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5.13 Laws and Regulations
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14
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5.14 Negation of Rights of Limited Partners, Assignees and Third Parties
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14
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5.15 No Recourse Against Officers or Directors
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14
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SCHEDULES AND EXHIBITS
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Schedule 1.1 Fixed Margin Amount Percentage
|
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Schedule 2.1(c) SG&A Services
|
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i
OMNIBUS AGREEMENT
THIS OMNIBUS AGREEMENT is entered into on, and effective as of, the Closing Date (as defined
herein), by and among TETRA Technologies, Inc., a Delaware corporation (
TETRA
), Compressco
Partners GP Inc., a Delaware corporation (the
General Partner
), and Compressco Partners, L.P., a
Delaware limited partnership (the
Partnership
). The above-named entities are sometimes referred
to in this Agreement singularly as a
Party
and collectively as the
Parties
.
RECITALS:
The Parties desire by their execution of this Agreement to evidence their understanding:
1. As more fully set forth in Article II, with respect to: (a) the reimbursement obligations
of the Partnership Group to: (i) the General Partner for all direct and indirect expenses incurred
by the General Partner in providing all personnel and services reasonably necessary to manage the
Partnership Entities operations and conduct the Partnership Groups business and (ii) TETRA for
all direct and indirect expenses incurred by the TETRA Entities in providing all personnel and
services reasonably necessary to conduct the Partnership Groups Mexico-based business and all
corporate and general and administrative services reasonably necessary to assist in the operation
of the business of the Partnership Group; and (b) subcontract services that may, from time to time,
be provided between any Partnership Entity and any TETRA Entity.
2. As more fully set forth in Article III, with respect to the purchase and sale, lease or
like-kind exchange of PES Equipment between any Partnership Entity and any TETRA Entity as is
needed or desired by the entity obtaining such PES Equipment to meet its production enhancement
services obligations.
3. As more fully set forth in Article IV, with respect to certain indemnification rights and
obligations among the Parties.
In consideration of the premises and the covenants, conditions, and agreements contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1
Definitions
.
(a) Capitalized terms used herein but not defined shall have the meanings given them in the
Partnership Agreement.
(b) As used in this Agreement, the following terms shall have the respective meanings set
forth below:
Affiliate
has the meaning given to such term in the Partnership Agreement.
Agreement
means this Omnibus Agreement, as it may be amended, modified or
supplemented from time to time in accordance with the terms hereof.
Books and Records
means collectively books, records, ledgers, files, invoices,
documents, work papers, correspondence, lists (including customer lists and supplier lists),
all tangible and digital or electronic copies of technology, designs, formulae (chemical and
otherwise), copies of software, databases, procedures, schedules, methods, discoveries,
processes, techniques, research and development, technical data, tools, materials,
specifications, information technology infrastructure, apparatuses, creations, improvements,
works of authorship in any media, confidential, proprietary or non-public information, and
other similar materials.
Business Day
means any day other than a Saturday, a Sunday or a day on which banking
institutions in Oklahoma City, Oklahoma are authorized or are obligated by law, executive
order or governmental decree to be closed.
Change of Control
means, with respect to any Person (the
Applicable Person
), any of
the following events: (i) any sale, lease, exchange or other transfer (in one transaction or
a series of related transactions) of all or substantially all of the Applicable Persons
assets to any other Person, unless immediately following such sale, lease, exchange or other
transfer such assets are owned, directly or indirectly, by the Applicable Person or such
Applicable Person owns or controls such other Person; (ii) the dissolution or liquidation of
the Applicable Person; (iii) the consolidation or merger of the Applicable Person with or
into another Person, other than any such transaction where (a) the outstanding Voting
Securities of the Applicable Person are changed into or exchanged for Voting Securities of
the surviving Person or its parent and (b) the holders of the Voting Securities of the
Applicable Person immediately prior to such transaction own, directly or indirectly, not
less than a majority of the outstanding Voting Securities of the surviving Person or its
parent immediately after such transaction; and (iv) a person or group (within the
meaning of Sections 13(d) or 14(d)(2) of the Exchange Act) being or becoming the beneficial
owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of more than 50% of all
of the then outstanding Voting Securities of the Applicable Person, except in a merger or
consolidation that would not constitute a Change of Control under clause (iii) above.
Closing Date
means the date of the closing of the initial public offering of Common
Units.
Common Unit
has the meaning given such term in the Partnership Agreement.
Compressco
means Compressco, Inc., a Delaware corporation.
Compressor Unit
means a wellhead compressor unit used by the Partnership to provide
natural gas wellhead compression-based production enhancement services, including GasJack
®
compressor units and VJack compressor units.
Conflicts Committee
has the meaning given such term in the Partnership Agreement.
2
Contribution Agreement
means that certain Contribution, Conveyance and Assumption
Agreement, dated as of the Closing Date, by and among Compressco, Compressco Field Services,
Inc., Compressco Canada, Inc., Compressco de Mexico, S. de R.L. de C.V., the General
Partner, the Partnership, OPCO, Compressco Netherlands B.V., Compressco Holdings, LLC,
Compressco Netherlands Coöperatief U.A., MLP Sub, TETRA International Incorporated,
Production Enhancement Mexico, S. de R.L. de C.V. and TETRA Technologies Inc., together with
the additional conveyance documents and instruments contemplated or referenced thereunder,
as such may be amended, supplemented or restated from time to time.
Covered Environmental Losses
has the meaning given to such term in Section 4.1(a).
Environmental Laws
means all federal, state, and local laws, statutes, rules,
regulations, orders and ordinances, legally enforceable requirements and rules of common law
relating to protection of the environment including, without limitation, the federal
Comprehensive Environmental Response, Compensation, and Liability Act, the Superfund
Amendments Reauthorization Act, the Resource Conservation and Recovery Act, the Clean Air
Act, the Federal Water Pollution Control Act, the Toxic Substances Control Act, the Oil
Pollution Act, the Safe Drinking Water Act, the Hazardous Materials Transportation Act and
other environmental conservation and protection laws, each as amended through and existing
on the Closing Date.
Exchange Act
means the Securities Exchange Act of 1934, as amended.
Fabricated Cost
means the total costs (other than any allocations of general and
administrative expenses) incurred in fabricating a particular item of PES Equipment, as
determined by the books and records of the Partnership, prepared in accordance with GAAP.
Fixed Margin Amount
means (a) with respect to newly fabricated PES Equipment, the
amount resulting from the product of (i) the Fabricated Cost and (ii) the percentage,
expressed as a decimal, set forth on
Schedule 1.1
to this Agreement (the
Fixed
Margin Amount Percentage
), which Schedule may be amended from time to time with the
approval of the Conflicts Committee, and (b) with respect to previously fabricated PES
Equipment, the amount resulting from the product of (i) the Net Book Value and (ii) the
Fixed Margin Amount Percentage.
Fabricated Margin Amount Percentage
has the meaning given to such term in the
definition of the Fixed Margin Amount.
GAAP
means generally accepted accounting principles in the United States,
consistently applied.
General Partner
has the meaning given to such term in the preamble to this Agreement.
General Partner Services
has the meaning given to such term in Section 2.1(a).
3
Hazardous Substance
means (a) any substance that is designated, defined or classified
as a hazardous waste, hazardous material, pollutant, contaminant or toxic or hazardous
substance, or that is otherwise regulated under any Environmental Law, including, without
limitation, any hazardous substance as such term is defined under the Comprehensive
Environmental Response, Compensation, and Liability Act, as amended, (b) petroleum,
petroleum products, crude oil, gasoline, fuel oil, motor oil, waste oil, diesel fuel, jet
fuel and other petroleum hydrocarbons, whether refined or unrefined, and (c) asbestos,
whether in a friable or a non-friable condition, and polychlorinated biphenyls.
Indemnified Party
means either the Partnership Group or the TETRA Entities, as the
case may be, each in its capacity as a party entitled to indemnification in accordance with
Article IV.
Indemnifying Party
means either the Partnership Group or the TETRA Entities, as the
case may be, each in its capacity as a party from whom indemnification may be required in
accordance with Article IV.
Intellectual Property
means all of the following intellectual property: (a) patents
and patent applications; (b) registered and unregistered copyrights and copyright
applications; (c) trademarks, service marks, trade names, and trade dress, together with the
goodwill associated therewith, and any applications for the foregoing; (d) domain names; (e)
trade secrets and confidential information; and (f) the right to sue and collect for past,
present and future infringement and misappropriation of all such intellectual property.
Jointly-Owned Intellectual Property
shall mean the Intellectual Property jointly
owned by MLP Sub and OPCO pursuant to the Contribution Agreement, each of MLP Sub and OPCO
holding a joint and undivided interest in such Intellectual Property.
Losses
has the meaning given to such term in Section 4.2.
Mexico Services
has the meaning given to such term in Section 2.1(b).
Mexico-based TETRA Entities
has the meaning given to such term in Section 2.1.
MLP Sub
has the meaning given to such term in the definition of the Partnership
Group.
Net Book Value
means the net book value of a particular item of PES Equipment, as
determined by the books and records of the Partnership, prepared in accordance with GAAP.
OPCO
has the meaning given to such term in the definition of the Partnership Group.
4
Partnership
has the meaning given to such term in the preamble to this Agreement.
Partnership Agreement
means the First Amended and Restated Agreement of Limited
Partnership of the Partnership, dated as of the Closing Date, as amended from time to time,
to which reference is hereby made for all purposes of this Agreement.
Partnership Assets
means the wellhead compression-based production enhancement
services and any related well monitoring and automated sand separation services contracts
(including any subcontracts for the provision of such services), manufacturing operations,
customer relationships, Compressor Units, well monitoring assets, automated sand separation
assets and other related equipment and assets, including leases of real property, directly
or indirectly conveyed, contributed or otherwise transferred to the Partnership Group as of
the Closing Date pursuant to the Contribution Agreement.
Partnership Entities
means the General Partner and each member of the Partnership
Group; and Partnership Entity means any of the Partnership Entities.
Partnership Entity Intellectual Property
has the meaning given to such term in
Section 2.1(f).
Partnership Group
means the Partnership, Compressco Partners Sub, Inc., a Delaware
corporation (
MLP Sub
), Compressco Partners Operating, LLC, a Delaware limited liability
company (
OPCO
) and any Subsidiary of the Partnership, MLP Sub or OPCO.
Party
or
Parties
have the meanings given to such terms in the preamble to this
Agreement.
Person
has the meaning given to such term in the Partnership Agreement.
PES Equipment
means Compressor Units, well monitoring assets, automated sand
separation assets and other equipment and assets, together with any tangible components
thereof, all related appliances, parts, accessories, appurtenances, accessions, additions,
improvements and replacements thereto, all other equipment or components of any nature from
time to time incorporated or installed therein and all substitutions for any of the
foregoing.
Services
has the meaning given to such term in Section 2.1(c).
SG&A Services
has the meaning given to such term in Section 2.1(c).
Subsidiary
has the meaning given to such term in the Partnership Agreement.
TETRA
has the meaning given to such term in the preamble to this Agreement.
5
TETRA Entities
means TETRA and any Person (other than the Partnership Entities)
controlled, directly or indirectly, by TETRA; and
TETRA Entity
means any one of the TETRA
Entities.
Transfer
has the meaning given to such term in Section 3.1.
Voluntary Cleanup Program
means a program of the United States or a state of the
United States enacted pursuant to Environmental Laws that provides for a mechanism for the
written approval of, or authorization to conduct, voluntary remedial action for the
clean-up, removal or remediation of contamination that exceeds actionable levels established
pursuant to Environmental Laws.
Voting Securities
of a Person means securities of any class of such Person entitling
the holders thereof to vote in the election of, or to appoint, members of the board of
directors or other similar governing body of the Person; provided, that if such Person is a
limited partnership, Voting Securities of such Person shall be the general partner interest
in such Person.
ARTICLE II
SERVICES
2.1
Services and Personnel Provided to the Partnership Group
. On and as of the Closing Date,
(i) all of Compresscos U.S. employees will become employees of the General Partner and be
dedicated to managing the Partnership Entities operations and conducting the Partnership Groups
business on a full-time basis and (ii) the Partnership Groups operations in Mexico will be
supported on a part-time basis by the employees and consultants of Mexico-based TETRA Entities
(such TETRA Entities, the
Mexico-based TETRA Entities
). The Partnership will reimburse the
General Partner and TETRA for all direct and indirect expenses incurred by the General Partner, the
Mexico-based TETRA Entities and TETRA on the Partnership Groups behalf on the following terms:
(a) The General Partner shall provide the Partnership Group with all personnel and
services reasonably necessary to manage the Partnership Entities operations and conduct the
Partnership Groups business (such personnel and services, the
General Partner Services
).
The General Partner Services shall be substantially similar in nature and quality to the
services previously provided by Compresscos U.S. employees to Compressco in connection with
Compresscos management and operation of the Partnership Assets prior to the Closing Date
and no lower in quantity than is reasonably necessary to manage the Partnership Entities
operations and conduct the Partnership Groups business, even if greater in quantity than
previously provided prior to the Closing Date.
(b) TETRA shall cause the Mexico-based TETRA Entities to provide the Partnership Group
with all personnel and services reasonably necessary to conduct the Partnership Groups
Mexico-based business (such personnel and services, the
Mexico Services
). The Mexico
Services shall be substantially similar in nature and quality to the services previously
provided by the Mexico-based TETRA Entities personnel to
6
Compressco in connection with Compresscos management and operation of the Partnership
Assets prior to the Closing Date and no lower in quantity than is reasonably necessary to
conduct the Partnership Groups Mexico-based business, even if greater in quantity than
previously provided prior to the Closing Date.
(c) TETRA shall provide the Partnership Entities with certain corporate and general and
administrative services reasonably necessary for the operation of the business of the
Partnership Group, which services may include (without limitation), at the Partnerships
request, those services set forth on
Schedule 2.1(c)
(such services, collectively,
the
SG&A Services
and, together with the General Partner Services and the Mexico Services,
the
Services
). The SG&A Services shall be substantially similar in nature and quality to
the services previously provided by TETRA to Compressco in connection with Compresscos
management and operation of the Partnership Assets prior to the Closing Date and no lower in
quantity than is reasonably necessary to assist in the operation of the business of the
Partnership Group, even if greater in quantity than previously provided prior to the Closing
Date.
(d) In connection with providing the Services, the General Partner and TETRA shall be
entitled to allocate to the Partnership Group any costs and expenses incurred by the
General Partner, the Mexico-based TETRA Entities or TETRA, as the case may be, on any
reasonable basis determined by the General Partner or TETRA, as the case may be.
(e) The Partnership hereby agrees to reimburse the General Partner and TETRA for all
costs and expenses allocated to the Partnership Group in accordance with Section 2.1(d).
(f) With respect to all Intellectual Property authored, created, invented, conceived,
reduced to practice or developed by the General Partner arising out of the General Partner
Services or by TETRA or the Mexico-based TETRA Entities arising out of the Mexico Services
or the SG&A Services that is related to the business of a Partnership Entity (the
Partnership Entity Intellectual Property
), the General Partner or TETRA, as the case may
be, hereby assigns, sells and transfers, and TETRA hereby agrees to cause any applicable
Mexico-based TETRA Entity to assign, sell and transfer, to the applicable Partnership
Entity or Entities all of the General Partners, TETRAs or such applicable Mexico-based
TETRA Entitys, as the case may be, right, title, and interest in and to such Partnership
Entity Intellectual Property. With respect to Partnership Entity Intellectual Property
that is an improvement or modification of the Jointly-Owned Intellectual Property of OPCO
and MLP Sub, the General Partner or TETRA, as the case may be, hereby assigns, sells, and
transfers, and TETRA hereby agrees to cause any applicable Mexico-based TETRA Entity to
assign, sell and transfer, joint and undivided interests in and to such Partnership Entity
Intellectual Property to OPCO and MLP Sub in the General Partners, TETRAs or such
applicable Mexico-based TETRA Entitys, as the case may be, right, title, and interest in
and to such Partnership Entity Intellectual Property.
7
(g) Each of the General Partner and TETRA, as the case may be, shall execute, shall
cause its respective employees and contractors to execute, and TETRA shall cause any
applicable Mexico-based TETRA Entity to execute, any documents reasonably necessary to
effectuate and record such assignment, sale and transfer to the applicable Partnership
Entity or Entities.
(h) Each Partnership Entity shall own title to all tangible and electronic or digital
copies of the Books and Records relating to such Partnership Entity, in each case,
including all rights of copyright and other Intellectual Property in and to such Books and
Records, or in the case of the Books and Records that disclose or embody the Jointly-Owned
Intellectual Property of OPCO and MLP Sub, each of OPCO and MLP Sub shall hold a joint and
undivided interest in and to any Intellectual Property in and to such Books and Records.
The Partnership shall cause each Partnership Entity to grant a royalty-free license to the
General Partner to use and modify hereunder its Intellectual Property and Books and
Records, whether held solely or jointly, in furtherance of the provision of services to the
Partnership Entities pursuant to this Agreement and grants the General Partner the right to
retain such Books and Records in connection therewith for the purposes of providing
services to the Partnership Entities pursuant to this Agreement. During the term of this
Agreement, the General Partner shall, upon reasonable request, make available or deliver,
or cause to be made available or delivered, to a Partnership Entity, its Books and Records.
2.2
Subcontract Services Provided between the Partnership Entities and TETRA Entities
.
Notwithstanding anything to the contrary in this Agreement, any Partnership Entity or any TETRA
Entity may, but shall be under no obligation to, perform for any TETRA Entity or any Partnership
Entity, respectively, and any TETRA Entity or any Partnership Entity may, but shall be under no
obligation to, obtain from any Partnership Entity or any TETRA Entity, respectively, such
production enhancement or other oilfield services on a subcontract basis as are needed or desired
by the entity obtaining such services, for such periods of time and in such amounts as may be
mutually agreed upon by TETRA and the General Partner; provided, however, that in any such case,
such services are performed on terms that are (i) approved by the Conflicts Committee, (ii) no less
favorable to the Partnership Group than those generally being provided to or available from
non-affiliated third parties, as determined by the General Partner, or (iii) fair and reasonable to
the Partnership Group, taking into account the totality of the relationships between the parties
involved (including other transactions that may be particularly favorable or advantageous to the
Partnership Group), as determined by the General Partner.
ARTICLE III
EQUIPMENT TRANSFERS
3.1
Equipment Transfers between the Partnership Entities and TETRA Entities
. Notwithstanding
anything to the contrary in this Agreement, any Partnership Entity or any TETRA Entity may, but
shall be under no obligation to, sell, lease or like-kind exchange (each such sale, lease or
exchange, for purposes of this Section 3.1, a
Transfer
) to any TETRA Entity or any Partnership
Entity, respectively, and any TETRA Entity or any Partnership Entity may, but shall be under no
obligation to, obtain from any Partnership Entity or any TETRA
8
Entity, respectively, such newly fabricated or previously fabricated PES Equipment as is
needed or desired by the obtaining entity to meet its production enhancement services obligations,
in such amounts, in such conditions and for such periods of time, if applicable, as may be mutually
agreed upon by TETRA and the General Partner; provided, however, that, in any such case, such
Transfer is on terms that are (i) approved by the Conflicts Committee, (ii) no less favorable to
the Partnership Group than those generally being provided to or available from non-affiliated third
parties, as determined by the General Partner, or (iii) fair and reasonable to the Partnership
Group, taking into account the totality of the relationships between the parties involved
(including other transactions that may be particularly favorable or advantageous to the Partnership
Group), as determined by the General Partner; provided, further, that, notwithstanding anything to
the contrary in this Section 3.1, any TETRA Entity may purchase from any Partnership Entity newly
fabricated PES Equipment only for a price that is not less than the Fabricated Cost plus the Fixed
Margin Amount; and provided, further, that, notwithstanding anything to the contrary in this
Section 3.1, any TETRA Entity may purchase from any Partnership Entity previously fabricated PES
Equipment only for a price that is not less than the Net Book Value plus the Fixed Margin Amount.
ARTICLE IV
INDEMNIFICATION
4.1
Environmental Indemnification
.
(a) Subject to Section 4.3, TETRA shall indemnify, defend and hold harmless the
Partnership Group from and against any environmental claims, losses and expenses
(including, without limitation, court costs and reasonable attorneys and experts fees) of
any and every kind or character suffered or incurred by the Partnership Group by reason of
or arising out of:
(i) any violation of Environmental Laws associated with ownership or operation of the
Partnership Assets; or
(ii) any event or condition associated with ownership or operation of the Partnership
Assets (including, without limitation, the presence of Hazardous Substances on, under, about
or migrating to or from the Partnership Assets or the disposal or release of Hazardous
Substances generated by operation of the Partnership Assets) including, without limitation,
(A) the cost and expense of any investigation, assessment, evaluation, monitoring,
containment, cleanup, repair, restoration, remediation, or other corrective action required
or necessary under Environmental Laws or to satisfy any applicable Voluntary Cleanup
Program, (B) the cost or expense of the preparation and implementation of any closure,
remedial, corrective action or other plans required or necessary under Environmental Laws or
to satisfy any applicable Voluntary Cleanup Program and (C) the cost and expense for any
environmental pre trial, trial or appellate legal or litigation support work; provided, in
the case of clauses (A) and (B) such cost and expense shall not include the costs of and
associated with project management and soil and ground water monitoring;
9
but only to the extent that such violation complained of under Section 4.1(a)(i) or such
events or conditions included under Section 4.1(a)(ii) occurred before or existed on the
Closing Date (collectively,
Covered Environmental Losses
).
(b) The Partnership Group shall indemnify, defend and hold harmless the TETRA Entities
from and against any Covered Environmental Losses suffered or incurred by TETRA and its
Affiliates relating to the Partnership Assets (as well as any assets acquired by the
Partnership after the Closing Date) occurring on or after the Closing Date, except to the
extent that the Partnership Group is indemnified with respect to any of such Covered
Environmental Losses under Section 4.1(a).
(c) Except for claims for Covered Environmental Losses made before the third
anniversary of the Closing Date, which shall not terminate, all indemnification obligations
in this Section 4.1 shall terminate on the third anniversary of the Closing Date.
4.2
Additional Indemnification
. In addition to and not in limitation of the indemnification
provided under Section 4.1(a), subject to Section 4.3, TETRA shall indemnify, defend and hold
harmless the Partnership Group from and against any claims, losses and expenses (including, without
limitation, court costs and reasonable attorneys and experts fees) of any and every kind or
character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Group
(such claims, losses and expenses, together with the Covered Environmental Losses, the
Losses
))
by reason of or arising out of:
(a) failure to convey good and defensible title to the Partnership Assets to one or more
members of the Partnership Group to the extent any such failure renders the Partnership Group
unable to use or operate the Partnership Assets in substantially the same manner as they were
operated by the TETRA Entities immediately prior to the Closing Date; or
(b) all federal, state and local income tax liabilities attributable to the operation of the
Partnership Assets prior to the Closing Date, including any such income tax liabilities of TETRA
that may result from the consummation of the formation transactions for the Partnership Entities;
or
(c) the failure of the Partnership Group to have on the Closing Date any consent or
governmental permit necessary to allow the transfer of any of the Partnership Assets or any such
Partnership Assets to the extent any such failure renders the Partnership Group unable to use or
operate the Partnership Assets in substantially the same manner that the Partnership Assets were
owned or operated immediately prior to the Closing Date,
provided, however
, that in the case of clause (a) and (c) above, such indemnification obligations
shall terminate on the third anniversary of the Closing Date; and that in the case of clause (b)
above, such indemnification obligations shall survive until 60 days after the termination of any
applicable statute of limitations.
10
4.3
Limitations Regarding Indemnification
.
(a) The aggregate liability of TETRA under Section 4.1(a) shall not exceed $5.0
million.
(b) No claims may be made against TETRA for indemnification pursuant to Sections
4.1(a) or 4.2 unless the aggregate dollar amount of the Losses suffered or incurred by the
Partnership Group exceeds $250,000, and thereafter TETRA shall be liable for the full
amount of such Losses, subject to the limitations of Section 4.3(a).
(c) Notwithstanding anything herein to the contrary, in no event shall TETRA have any
indemnification obligations under Section 4.1(a) for claims made as a result of additions
to or modifications after the Closing Date of Environmental Laws existing as of the Closing
Date or new Environmental Laws promulgated after the Closing Date.
4.4
Indemnification Procedures
.
(a) The Indemnified Party agrees that promptly after it becomes aware of facts giving
rise to a claim for indemnification under this Article IV, it will provide notice thereof
in writing to the Indemnifying Party, specifying the nature of and specific basis for such
claim.
(b) The Indemnifying Party shall have the right to control all aspects of the defense
of (and any counterclaims with respect to) any claims brought against the Indemnified Party
that are covered by the indemnification under this Article IV, including, without
limitation, the selection of counsel, determination of whether to appeal any decision of
any court and the settling of any such matter or any issues relating thereto; provided,
however, that no such settlement shall be entered into without the consent of the
Indemnified Party (with the concurrence of the Conflicts Committee in the case of the
Partnership Group) unless it includes a full release of the Indemnified Party from such
matter or issues, as the case may be, and does not include the admission of fault,
culpability or a failure to act, by or on behalf of such Indemnified Party.
(c) The Indemnified Party agrees to cooperate fully with the Indemnifying Party, with
respect to all aspects of the defense of any claims covered by the indemnification under
this Article IV, including, without limitation, the prompt furnishing to the Indemnifying
Party of any correspondence or other notice relating thereto that the Indemnified Party may
receive, permitting the name of the Indemnified Party to be utilized in connection with
such defense, the making available to the Indemnifying Party of any files, records or other
information of the Indemnified Party that the Indemnifying Party considers relevant to such
defense and the making available to the Indemnifying Party, at no cost to the Indemnifying
Party, of any employees of the Indemnified Party; provided, however, that in connection
therewith the Indemnifying Party agrees to use reasonable efforts to minimize the impact
thereof on the operations of the Indemnified Party and further agrees to endeavor to
maintain the confidentiality of all files, records and other information furnished by the
Indemnified Party pursuant to this Section 4.4. In no event shall the obligation of the
Indemnified Party to cooperate
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with the Indemnifying Party as set forth in the immediately preceding sentence be
construed as imposing upon the Indemnified Party an obligation to hire and pay for counsel
in connection with the defense of any claims covered by the indemnification set forth in
this Article IV; provided, however, that the Indemnified Party may, at its own option, cost
and expense, hire and pay for counsel in connection with any such defense. The
Indemnifying Party agrees to keep any such counsel hired by the Indemnified Party informed
as to the status of any such defense, but the Indemnifying Party shall have the right to
retain sole control over such defense.
(d) In determining the amount of any loss, cost, damage or expense for which the
Indemnified Party is entitled to indemnification under this Agreement, the gross amount of
the indemnification will be reduced by (i) any insurance proceeds realized by the
Indemnified Party and (ii) all amounts recovered by the Indemnified Party under contractual
indemnities from third Persons. The Partnership hereby agrees to use commercially
reasonable efforts to realize any applicable insurance proceeds or amounts recoverable
under such contractual indemnities.
ARTICLE V
MISCELLANEOUS
5.1
Choice of Law; Submission to Jurisdiction
. This Agreement shall be subject to and
governed by the laws of the State of Delaware, excluding any conflicts-of-law rule or principle
that might refer the construction or interpretation of this Agreement to the laws of another state.
Each Party hereby submits to the jurisdiction of the state and federal courts in the State of
Delaware and to venue in Delaware.
5.2
Notice
. All notices, requests or consents provided for or permitted to be given pursuant
to this Agreement must be in writing and must be given by depositing same in the United States
mail, addressed to the Person to be notified, postpaid, and registered or certified with return
receipt requested or by delivering such notice in person or by facsimile to such Party. Notice
given by personal delivery or mail shall be effective upon actual receipt. Notice given by
facsimile shall be effective upon actual receipt if received during the recipients normal business
hours, or at the beginning of the recipients next Business Day after receipt if not received
during the recipients normal business hours. All notices to be sent to a Party pursuant to this
Agreement shall be sent to or made at the address set forth below or at such other address as such
Party may stipulate to the other Parties in the manner provided in this Section 5.2.
For notices to any of the TETRA Entities:
TETRA Technologies, Inc.
24955 Interstate 45 North
The Woodlands, TX 77380
Phone: 281-367-1983
Fax: 281-364-4398
Attention: General Counsel
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For notices to any of the Partnership Entities:
Compressco Partners, L.P.
101 Park Avenue, Suite 1200
Oklahoma City, OK 73102
Phone: 405-677-0221
Fax: 405-619-9244
Attention: President
5.3
Entire Agreement
. This Agreement constitutes the entire agreement of the Parties relating
to the matters contained herein, superseding all prior contracts or agreements, whether oral or
written, relating to the matters contained herein.
5.4
Termination
. This Agreement, other than the provisions set forth in Articles IV and V
hereof, shall terminate upon the earlier to occur of (i) a Change of Control of the General Partner
or TETRA or (ii) the third anniversary of the Closing Date.
5.5
Effect of Waiver or Consent
. No waiver or consent, express or implied, by any Party to or
of any breach or default by any Person in the performance by such Person of its obligations
hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or
default in the performance by such Person of the same or any other obligations of such Person
hereunder. Failure on the part of a Party to complain of any act of any Person or to declare any
Person in default, irrespective of how long such failure continues, shall not constitute a waiver
by such Party of its rights hereunder until the applicable statute of limitations period has run.
5.6
Amendment or Modification
. This Agreement may be amended or modified from time to time
only by the written agreement of all the Parties; provided, however, that the Partnership may not,
without the prior approval of the Conflicts Committee, agree to any amendment or modification of
this Agreement that the General Partner determines will adversely affect the holders of Common
Units. Each such instrument shall be reduced to writing and shall be designated on its face an
Amendment or an Addendum to this Agreement.
5.7
Assignment; Third Party Beneficiaries
. Any Party shall have the right to assign its
rights under this Agreement without the consent of any other Party, but no Party shall have the
right to assign its obligations under this Agreement without the consent of the other Parties.
Subject to the limitations set forth in Section 5.14, each of the Parties hereto specifically
intends that each entity comprising the TETRA Entities and each entity comprising the Partnership
Entities, as applicable, whether or not a Party to this Agreement, shall be entitled to assert
rights and remedies hereunder as third-party beneficiaries hereto with respect to those provisions
of this Agreement affording a right, benefit or privilege to any such entity.
5.8
Counterparts
. This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, with the same effect as if all signatory Parties had signed the same
document. All counterparts shall be construed together and shall constitute one and the same
instrument.
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5.9
Severability
. If any provision of this Agreement or the application thereof to any Person
or circumstance shall be held invalid or unenforceable to any extent, the remainder of this
Agreement and the application of such provision to other Persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
5.10
Gender, Parts, Articles and Sections
. Whenever the context requires, the gender of all
words used in this Agreement shall include the masculine, feminine and neuter, and the number of
all words shall include the singular and plural. All references to Article numbers and Section
numbers refer to Articles and Sections of this Agreement.
5.11
Further Assurances
. In connection with this Agreement and all transactions contemplated
by this Agreement, each Party agrees to execute and deliver such additional documents and
instruments and to perform such additional acts as may be necessary or appropriate to effectuate,
carry out and perform all of the terms, provisions and conditions of this Agreement and all such
transactions.
5.12
Withholding or Granting of Consent
. Except as otherwise expressly provided in this
Agreement, each Party may, with respect to any consent or approval that it is entitled to grant
pursuant to this Agreement, grant or withhold such consent or approval in its sole and uncontrolled
discretion, for any reason, and subject to such conditions as it shall deem appropriate.
5.13
Laws and Regulations
. Notwithstanding any provision of this Agreement to the contrary,
no Party shall be required to take any act, or fail to take any act, under this Agreement if the
effect thereof would be to cause such Party to be in violation of any applicable law, statute, rule
or regulation.
5.14
Negation of Rights of Limited Partners, Assignees and Third Parties
. The provisions of
this Agreement are enforceable solely by the Parties, and no shareholder, limited partner, member,
or assignee of TETRA, the General Partner or the Partnership or other Person shall have the right,
separate and apart from TETRA, the General Partner or the Partnership, to enforce any provision of
this Agreement or to compel any Party to comply with the terms of this Agreement.
5.15
No Recourse Against Officers or Directors
. For the avoidance of doubt, the provisions of
this Agreement shall not give rise to any right of recourse against any officer or director of
TETRA or any Partnership Entity.
(
Signature pages follow
.)
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IN WITNESS WHEREOF, the Parties have executed this Agreement on, and effective as of, the
Closing Date.
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TETRA TECHNOLOGIES, INC.
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By:
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/s/ Stuart M. Brightman
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Name:
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Stuart M. Brightman
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Title:
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President and Chief Executive
Officer
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COMPRESSCO PARTNERS GP INC.
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By:
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/s/ Ronald J. Foster
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Name:
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Ronald J. Foster
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Title:
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President
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COMPRESSCO PARTNERS, L.P.
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By:
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Compressco Partners GP Inc., its general partner
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By:
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/s/ Ronald J. Foster
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Name:
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Ronald J. Foster
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Title:
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President
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Omnibus Agreement
SCHEDULE 1.1
Fixed-Margin Amount Percentage
0.25 (or 25.0%)
SCHEDULE 2.1(c)
SG&A Services
Pursuant to Section 2.1(c) of this Agreement, TETRA shall provide the Partnership Entities
with corporate and general and administrative services reasonably necessary to assist in the
operation of the business of the Partnership Group, which services shall include, without
limitation, the following services:
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(a)
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secretarial and general office services;
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(b)
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employee benefits administration services (including, without limitation,
equity plan administration services);
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(c)
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investor relations services;
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(d)
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human resources and payroll processing services;
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(e)
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financial services;
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(f)
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information and technology services;
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(g)
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audit services;
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(h)
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legal services;
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(i)
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engineering and technical services;
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(j)
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insurance and risk management services;
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(k)
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global supply chain and procurement services;
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(l)
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accounting services;
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(m)
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tax services;
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(n)
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health, safety and environmental (HSE) services;
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(o)
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facilities management services;
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(p)
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international business development; and
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(q)
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general sales/marketing services.
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