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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
SCHEDULE 13D
(AMENDMENT NO. 3)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
NGC CORPORATION
- -------------------------------------------------------------------------------
(NAME OF ISSUER)
COMMON STOCK, $0.01 PAR VALUE
- -------------------------------------------------------------------------------
(TITLE OF CLASS OF SECURITIES)
629121 10 4
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(CUSIP NUMBER)
Alan Talkington, Esq. Jack S. Mustoe
Orrick, Herrington & Sutcliffe LLP Senior Vice President and General Counsel
400 Sansome Street NOVA Corporation
San Francisco, CA 94111 801 Seventh Avenue S.W.
(415) 773-5762 Calgary, Alberta Canada T2P 2N6
(403) 290-7636
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(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND
COMMUNICATIONS)
AS OF JUNE 1, 1997
---------------------------------------------------------
(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
Check the following box if a fee is being paid with the statement [_]. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of this class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
CUSIP NO. 629121 10 4 Page 2 of 7 Pages
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NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
NOVA Gas Services (U.S.) Inc.
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_]
2 (b) [X]
- --------------------------------------------------------------------------------
SEC USE ONLY
3
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SOURCE OF FUNDS
4 WC,00
- --------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
5 PURSUANT TO ITEMS 2(d) or 2(e)
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CITIZENSHIP OR PLACE OR ORGANIZATION
6 Delaware
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SOLE VOTING POWER
7 38,789,876
NUMBER OF -----------------------------------------------------------------
SHARES SHARED VOTING POWER
BENEFICIALLY 8 -0-
OWNED BY EACH -----------------------------------------------------------------
REPORTING SOLE DISPOSITIVE POWER
PERSON 9 38,789,876
WITH -----------------------------------------------------------------
SHARED DISPOSITIVE POWER
10 -0-
- --------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11 38,789,876
- --------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES [X]
- --------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13 25.8%
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TYPE OF REPORTING PERSON
14 CO
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SCHEDULE 13D
CUSIP NO. 629121 10 4 Page 3 of 7 Pages
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NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
NOVA Corporation
- --------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_]
2 (b) [X]
- --------------------------------------------------------------------------------
SEC USE ONLY
3
- --------------------------------------------------------------------------------
SOURCE OF FUNDS
4 WC,00
- --------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
5 PURSUANT TO ITEMS 2(d) or 2(e)
- --------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OR ORGANIZATION
6 Alberta, Canada
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SOLE VOTING POWER
7 -0-
NUMBER OF -----------------------------------------------------------------
SHARES SHARED VOTING POWER
BENEFICIALLY 8 38,789,876
OWNED BY EACH -----------------------------------------------------------------
REPORTING SOLE DISPOSITIVE POWER
PERSON 9 -0-
WITH -----------------------------------------------------------------
SHARED DISPOSITIVE POWER
10 38,789,876
- --------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11 38,789,876
- --------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES [X]
- --------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13 25.8%
- --------------------------------------------------------------------------------
TYPE OF REPORTING PERSON
14 CO
================================================================================
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Page 4 of 7 Pages
NOVA Gas Services (U.S.) Inc., a Delaware corporation (the
"Reporting Person"), and NOVA Corporation, an Alberta, Canada corporation
("NOVA"), hereby amend the single joint statement on Schedule 13D, as amended
by Amendments No. 1 and 2 (the "Schedule 13D"), filed with the Securities
Exchange Commission, which statement relates to the shares of Common Stock,
with $0.01 per value (the "Shares") of NGC Corporation, a corporation
organized under the laws of the State of Delaware (the "Corporation"), as
follows:
Item 3. Source and Amount of Funds or Other Consideration
-------------------------------------------------
The following shall be added after the last paragraph of Item 3:
Since the date of the last purchase of Shares reported in the
Schedule 13D, the Reporting Person purchased an additional 166,665
Shares for an aggregate consideration of approximately $3,238,283. The
Reporting Person obtained the funds for these transactions from its
general corporate funds.
Item 4. Purpose of Transaction
----------------------
The following shall be added before the last paragraph of Item 4:
Effective June 1, 1997, the Reporting Person entered into an
agreement (the "Agreement") with British Gas Holdings, Inc. ("BG") and
Chevron U.S.A. Inc. ("Chevron") regarding the acquisition of additional
shares of the Issuer pursuant to the NGC Corporation Senior Management
Share Sale Plan (the "Senior Management Plan"). The Senior Management
Plan provides a mechanism to facilitate the private sale of Shares of
the Issuer by members of senior management of the Issuer to BG, Chevron
and the Reporting Person. Pursuant to the Senior Management Plan,
certain senior management may elect to sell Shares of the Issuer, and
BG, Chevron and the Reporting Person can each elect to purchase up to
one-third of the offered Shares. If BG, Chevron or the Reporting Person
does not elect to purchase their respective one-third than the others
shall have the right to purchase on a pro rata basis any offered shares
not purchased by one or both of the other.
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Page 5 of 7 Pages
Item 5. Interest in Securities of the Issuer.
------------------------------------
Item 5 shall be deleted and replaced with the following:
(a) In computing their respective aggregate percentage ownership of
Common Stock and the percentages of Common Stock owned by the
other parties to the Clearinghouse Owners Stockholders Agreement
for purposes of this Schedule 13D, the Reporting Person and NOVA
have relied on the quarterly report on Form 10-Q for the quarterly
period year ended March 31, 1997, (Commission File No.1-11156) in
which the Issuer reported that 150,415,605 shares of Common Stock
were to be outstanding. As of the close of business on June 1,
1997, the Reporting Person is the beneficial owner of 38,789,876
shares of Common Stock, constituting approximately 25.8% of the
shares of Common Stock outstanding.
In addition to the shares of Common Stock owned by the Reporting
Person, the Reporting Person believes that as of June 1, 1997, an
additional 77,579,752 shares of Common Stock (approximately 51.6%)
are subject to the New NGC Stockholders Agreement. The Reporting
Person and NOVA disclaim ownership of any of such shares of Common
Stock.
NOVA does not own any shares of the Issuer directly, but may be
deemed to share beneficial ownership of all of the shares of
Common Stock owned by the Reporting Person by virtue of the
ownership relationship described in Item 2.
(b) Subject to its obligations under the agreements described in this
Schedule 13D, the Reporting Person has the sole power to vote and
dispose of the 38,789,876 shares of Common Stock owned directly by
it. Although the Reporting Person has sole voting rights, NOVA
may be deemed to share voting and dispositive power with regard to
such shares by virtue of its ownership of 100% of the Reporting
Person.
(c) The Reporting Person had no transactions in the shares of Common
Stock in the sixty day period ended June 1, 1997.
(d) Except as described above, no other person is known to have the
right to receive or the power to direct the receipt of dividends
from or the proceeds from the sale of such shares of Common Stock
beneficially owned by the Reporting Person and NOVA.
(e) Not applicable.
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Page 6 of 7 Pages
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
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The following shall be added before the last paragraph of Item 6:
Effective June 1, 1997, the Reporting Person entered into an
agreement (the "Agreement") with British Gas Holdings, Inc. ("BG") and
Chevron U.S.A. Inc. ("Chevron") regarding the acquisition of additional
shares of the Issuer pursuant to the NGC Corporation Senior Management
Share Sale Plan (the "Senior Management Plan"). The Senior Management
Plan provides a mechanism to facilitate the private sale of Shares of
the Issuer by members of senior management of the Issuer to BG, Chevron
and the Reporting Person. Pursuant to the Senior Management Plan,
certain senior management may elect to sell Shares of the Issuer, and
BG, Chevron and the Reporting Person can each elect to purchase up to
one-third of the offered Shares. If BG, Chevron or the Reporting Person
does not elect to purchase their respective one-third than the others
shall have the right to purchase on a pro rata basis any offered shares
not purchased by one or both of the other.
Copies of the Agreement and the Senior Management Share Sale Plan
are filed as Exhibits 13 and 14 to this Schedule 13D and are
incorporated herein by reference. With respect to each contract,
agreement or other document referred to herein and filed with the
Securities and Exchange Commission as an exhibit to this report,
reference is made to the exhibit for a more complete description of the
matter involved, and each such statement shall be deemed qualified in
its entirety by such reference.
Item 7. Materials to be filed as Exhibits.
---------------------------------
The following shall be added after the last exhibit in Item 7:
13. Agreement, effective June 1, 1997, by and among British Gas
Holdings, Inc., Chevron U.S.A. Inc. and NOVA Gas Services (U.S.)
Inc.
14. NGC Corporation Senior Management Share Sale Plan, effective
January 1, 1997.
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Page 7 of 7 Pages
After reasonable inquiry and to the best of the undersigned's
knowledge and belief, the undersigned hereby certify that the information set
forth in this statement is true, complete and correct.
Dated: June 30, 1997.
NOVA CORPORATION
By: /s/ Jack S. Mustoe
--------------------------------------------------
Name: Jack S. Mustoe
Title: Senior Vice President and General Counsel
NOVA GAS SERVICES (U.S.) INC.
By: /s/ Richard Milner
--------------------------------------------------
Name: Richard Milner
Title: Director
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EXHIBIT INDEX
Exhibit Page
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13. Agreement, effective June 1, 1997, by and among
British Gas Holdings, Inc., Chevron U.S.A. Inc.
and NOVA Gas Services (U.S.) Inc.
14. NGC Corporation Senior Management Share Sale Plan,
effective January 1, 1997.
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EXHIBIT 13
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AGREEMENT
This Agreement is entered into by and among British Gas Holdings, Inc., a
Delaware corporation ("BG"), Chevron U.S.A. Inc., a Pennsylvania corporation
("Chevron"), and NOVA Gas Services (U.S.) Inc., a Delaware corporation ("NOVA"),
as of June 1, 1997.
WHEREAS, BG, Chevron and NOVA are parties to that certain Stockholders
Agreement, dated May 22, 1996 (the "Stockholders Agreement"), regarding the
stock of NGC Corporation, a Delaware corporation ("NGC");
WHEREAS, Section 3.6(b) of the Stockholders Agreement sets forth certain
requirements regarding the acquisition of additional shares of NGC common stock
by BG, Chevron and NOVA; and
WHEREAS, that certain NGC Corporation Senior Management Share Sale Plan,
effective as of January 1, 1997, sets forth a mechanism for the sale of shares
of the common stock of NGC by certain shareholders to BG, Chevron and NOVA (the
"Plan").
NOW THEREFORE, in consideration of the mutual covenants and obligations set
forth, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. With respect to any purchases of common stock of NGC made pursuant to
the Plan, the requirements of Section 3.6(b) of the Stockholders Agreement are
deemed to have been satisfied.
2. This agreement shall be effective as of the date hereof, and shall
terminate upon the termination of the Plan.
3. The terms and conditions shall inure to the benefit of and be binding
upon the parties and their permitted assigns.
4. This Agreement may be executed in two or more counterparts and each
counterpart shall be deemed to be an original and which counterparts together
shall constitute one and the same agreement of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BRITISH GAS HOLDINGS, INC.
By: /s/ P.N. Woollacott
--------------------------------
Name: P.N. Woollacott
------------------------------
Title: Authorized Signatory
-----------------------------
CHEVRON U.S.A. INC.
By: /s/ P.J. Robertson
--------------------------------
Name: P.J. Robertson
------------------------------
Title: President
-----------------------------
NOVA GAS SERVICES (U.S.) INC.
By: /s/ Richard Milner
--------------------------------
Name: Richard Milner
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Title: Director
-----------------------------
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EXHIBIT 14
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NGC CORPORATION
SENIOR MANAGEMENT SHARE SALE PLAN
1. PURPOSE
The NGC Corporation Senior Management Share Sale Plan (this "Plan") is
intended to provide members of senior management of NGC Corporation, a Delaware
corporation (the "Company"), British Gas Holdings, Inc., a Delaware corporation
("BG"), Chevron U.S.A. Inc. a Pennsylvania corporation ("Chevron") and NOVA Gas
Services (U.S.) Inc. a Delaware corporation ("NOVA"), with a well-defined
mechanism to facilitate the private sale of common shares of the stock of the
Company by members of senior management of the Company to BG, Chevron and NOVA.
2. DEFINITIONS
For purposes of this Plan, the following terms shall have the
respective meanings set forth below.
a. "BANKING DAY" means any day other than a Saturday or Sunday that
is neither a legal holiday nor a day on which banking institutions are
authorized or required by law or executive order to close in The City of New
York, London, England, or Calgary, Alberta, Canada.
b. "BOARD" means the Board of Directors of the Company, as
constituted from time to time.
c. "BUYER(S)" means with respect to any Offered Shares one or more
of BG, Chevron and NOVA who have elected to purchase shares of Common Stock
offered for sale by Management Members pursuant to this Plan.
d. "COMMON STOCK" means the class of stock, which, as of the
effective date of this Plan is designated as Common Stock of the Company.
e. "COMPANY" shall have the meaning set forth in Section 1.
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f. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any successor law.
g. "MANAGEMENT MEMBERS" means members of senior management of the
Company.
h. "NOTICE OF ACCEPTANCE" means a notice in the form of Exhibit B
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i. "NOTICE OF INSTRUCTION" means a notice in the form of Exhibit C
---------
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j. "NGC DESIGNATED PERSON" means the general counsel of the Company.
k. "OFFER DATE" means a day on which the NGC Designated Person
notifies BG, Chevron and NOVA, pursuant to Section 5(a), of the aggregate number
------------
of shares of Common Stock which the Management Members desire to sell.
l. "OFFERED SHARES" means the shares of Common Stock offered for
sale by Sellers from time to time pursuant to an Offer of Sale Notice pursuant
to this Plan.
m. "OFFER OF SALE NOTICE" means a notice in the form of Exhibit A.
---------
n. "PLAN" shall have the meaning set forth in Section 1.
---------
o. "PURCHASE PRICE" shall have the meaning set forth in Section 4(d).
------------
p. "SECURITIES ACT" means the Securities Act of 1933, as amended, or
any successor law.
q. "SELLER(S)" means with respect to any Offered Shares each
Management Member who has elected to offer for sale shares of Common Stock
pursuant to this Plan.
r. "TRANSFER AGENT" means ChaseMellon Shareholder Services L.L.C. or
any successor transfer agent appointed by the Company.
s. "WEIGHTED AVERAGE PRICE" means with respect to any Offered Shares
the volume weighted average price of the Common Stock on the New York Stock
Exchange as reported by the Bloomberg Average Quote Recap for the five trading
days preceding the Offer Date, the Offer Date and the five trading days
immediately following the Offer Date. In the event that the Bloomberg Average
Quote Recap is unavailable for the eleven trading day period consisting of the
five trading days preceding the Offer Date, the Offer Date and the five trading
days immediately following the Offer Date, then the weighted average price shall
be calculated by multiplying the price of each trade of Common Stock times the
volume of each such trade of Common Stock made during such eleven trading day
period on the New York Stock Exchange and dividing that product by the total
amount of Common Stock traded on the New York Stock Exchange during such eleven
day trading period, all as reported by the New York Stock Exchange. In the
event the Common Stock is not publicly traded on an Offer Date, the
determination of its market value shall be made by the Board in such manner as
it deems appropriate.
3. ELIGIBILITY AND PARTICIPATION
a. ELIGIBILITY. Subject to the provisions of this Plan, each
Management Member shall be entitled to offer to sell shares of Common Stock
under this Plan at any time and from time to time during the term of this Plan.
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b. PARTICIPATION RESTRICTIONS. Each Management Member hereby
acknowledges that this Plan merely establishes a convenient mechanism for the
sale of Common Stock. This Plan does not exempt any Management Member from any
law, rule, regulation or policy or any contractual restriction to which any such
Management Member may be subject, including, without limitation, the
requirements of Section 16 of the Exchange Act, restrictions on insider trading
and the Company's policies relating to the purchase and sale of its securities
by its directors, officers, employees and affiliates. Management Members
understand that they should consult with counsel prior to making any sale of
Common Stock.
4. TERM OF AGREEMENT
This Plan shall become effective on January 1, 1997, and shall
continue in effect until December 31, 1999, and thereafter shall continue in
effect until such date that any one of BG, Chevron and NOVA shall give the other
participants written notification of termination.
5. OFFER AND SALE OF COMMON STOCK
a. OFFER OF SALE NOTICE. Subject to the provisions of Section 3(b),
------------
each Management Member may elect to offer to sell shares of Common Stock at any
time during the term of this Plan by filling out and returning an Offer of Sale
Notice to the NGC Designated Person after the public release by the Company and
prior to the close of business on the ninth trading day following the public
release by the Company of its financial results for the preceding calendar
quarter indicating the number of shares of Common Stock which that Management
Member wishes to irrevocably offer to sell to BG, Chevron and NOVA. The NGC
Designated Person shall notify BG, Chevron and NOVA of the aggregate number of
Offered Shares on the ninth trading day following the public release by the
Company of its financial results for the preceding calendar quarter.
b. RESTRICTIONS ON MANAGEMENT MEMBER TRADING. Each Seller shall
refrain from trading his or her shares of Common Stock and engaging in any
activity other than in the ordinary course of the Company's business that could
influence the price of the Company's Common Stock from the date of public
release by the Company until following the fourteenth trading day following the
public release by the Company of its financial results for the preceding
calendar quarter.
c. ACCEPTANCE OF OFFER OF SALE. BG, Chevron and NOVA shall notify
the NGC Designated Person prior to the close of business on the third trading
day following the Offer Date of the number of shares of Common Stock which each
wishes to purchase by filling out and returning a Notice of Acceptance. If any
of BG, Chevron or NOVA does not return a Notice of Acceptance on a timely basis,
such entity shall be deemed to have refused to purchase any of the Offered
Shares. Each of BG, Chevron and NOVA shall have the right, but not the
obligation, to purchase one-third of the Offered Shares, and any of BG, Chevron
and NOVA that elects to purchase any of the Offered Shares shall have the right,
but not the obligation, to purchase on a pro rata basis (based on the number of
shares of
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Common Stock accepted for purchase pursuant to the Notice of Acceptance) any
Offered Shares not purchased by one or both of the other. If all Offered Shares
are not accepted for purchase, the unsold Offered Shares shall be returned to
the Sellers on a pro rata basis.
d. DETERMINATION OF TOTAL PURCHASE PRICE. The Purchase Price for
shares of Common Stock purchased pursuant to the Plan shall be the Weighted
Average Price of shares of Common Stock, less six cents ($0.06) per share of
Common Stock.
e. MINIMUM COLLECTIVE OFFERING OF SALE. Notwithstanding any other
terms in this Plan, if the aggregate number of shares of Common Stock that
Management Members desire to sell in any given quarter is less than 150,000
shares of Common Stock, no shares of Common Stock offered for sale by one or
more Management Members shall be offered or sold pursuant to this Plan during
such calendar quarter.
f. CLOSING OF PURCHASE. The closing of any sale made pursuant to
the Plan shall take place on the second Banking Day following the fifth trading
day following the Offer Date (the "Closing Date") if the closing conditions set
forth in Section 7 are satisfied.
g. LEGAL COMPLIANCE. No shares of the Common Stock shall be
purchased under this Plan unless legal counsel for the Company shall be
satisfied that such purchase will be in compliance with all applicable federal
and state securities laws and regulations and any other applicable laws or
regulations. If, at any time specified herein for the sale of Common Stock, any
law, rule, regulation or other requirement of any governmental authority or
agency shall require either the Company, its subsidiaries or any Management
Member (or any estate, designated beneficiary or other legal representative
thereof) to take any action in connection with any such shares to be sold, the
purchase shall be deferred until such required action is taken.
6. VOLUME LIMITATIONS
Except as set forth in Section 5(e), there shall be no limitation,
------------
either maximum or minimum, on the number of shares of Common Stock that may be
sold by Management Members pursuant to the Plan, individually or in the
aggregate.
7. CLOSING CONDITIONS FOR EACH PURCHASE OF COMMON STOCK
a. The following closing conditions must be satisfied or waived
prior to 10:00 a.m. (Houston time) on the Banking Day immediately preceding the
Closing Date:
(i) DEPOSIT OF SHARE CERTIFICATES. Each Seller shall deliver to
the NGC Designated Person or the Transfer Agent share certificates (the "Share
Certificates") representing at least the number of shares of Common Stock such
Seller has offered for sale and which one or more Buyers have elected to
purchase.
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(ii) NOTICE OF INSTRUCTION. Each Seller shall deliver to the NGC
Designated Person a Notice of Instruction.
(iii) CONFIRMATION OF RECEIPT. The NGC Designated Person shall
notify each Buyer by the close of business on the Banking Day immediately
preceding the Closing Date pursuant to the notice provisions set forth in
Section 9 that the Share Certificates and Notices of Instruction have been
- ---------
received.
b. PURCHASE PRICE. On the Closing Date, each Buyer shall pay the
Purchase Price of the number of shares of Common Stock such Buyer has elected to
purchase pursuant to this Plan by bank wire in immediately available funds of an
amount equal to the Purchase Price for the shares purchased to the escrow
account, as specified below, established by the NGC Designated Person for the
purpose of effecting the transactions contemplated under this Plan:
First Chicago NBO
Account Name: NGC Corporation
ABA No. 071000013
Acct. No. 5586577
8. ESCROW AGENT
The NGC Designated Person hereby agrees to serve as escrow agent for
the transactions contemplated by this Plan. Upon the satisfaction or waiver of
the closing conditions set forth in Section 7 above, the NGC Designated Person
---------
shall transfer from the escrow account to each Seller by bank wire in
immediately available funds the amount of the Purchase Price due to each Seller
for its sale of Common Stock pursuant to this Plan. In the event the closing
conditions set forth in Section 7 above have not been satisfied or waived by
---------
10:00 a.m. (Houston time) of the Closing Date, and such Closing Date has not
been extended pursuant to written instructions of Buyers and Sellers, the NGC
Designated Person shall return all Share Certificates to the respective Sellers
and shall return the money deposited in the escrow account to the depositing
party.
Notwithstanding the foregoing, to the extent all closing conditions
for the sale of Common Stock to any one or more Buyer (the "Closing Buyers") or
by one or more Sellers (the "Closing Sellers") have been satisfied or waived in
a timely manner, and the closing conditions not satisfied or waived relate to
sales to other Buyers or by other Sellers, the sale of Common Shares pursuant to
this Plan shall be unaffected as to the Closing Buyers and Closing Sellers.
9. NOTICES
Notices to any parties relating to this Plan shall be in writing and
effective when mailed by certified mail, delivered by courier, or personally
delivered to such party at the address shown below, or sent via facsimile
transmission to the facsimile number shown
5
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below, or to such other address or facsimile number provided in writing to each
of the following:
If to the Company or the NGC Designated Person:
(a) on or prior to April 4, 1997
NGC Corporation
Suite 1200
13430 Northwest Freeway
Houston, Texas 77040
U.S.A.
Attention: General Counsel
Facsimile: (713) 507-6808
(b) after April 4, 1997
NGC Corporation
1000 Louisiana, Suite 5800
Houston, Texas 77002
U.S.A.
Attention: General Counsel
Facsimile: (713) 507-6808
If to BG:
BG Holdings, Inc.
100 Thames Valley Park Drive
Redding, Berkshire RG6 1PT
United Kingdom
Attention: Nick Woolacott
Facsimile: 011-44-118-929-3650
If to Chevron:
Chevron U.S.A., Inc.
575 Market Street
6th Floor, Room 608
San Francisco, California
Attention: Jeff Price
Facsimile: 415-894-0593
6
<PAGE>
If to NOVA:
NOVA Gas Services (U.S.) Inc.
645 Seventh Avenue S.W.
Calgary, Alberta, Canada
T2P 2N6
Attention: Vice President, Legal, NOVA Gas,
International Ltd.
Facsimile: 403-294-4059
10. REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Management Member electing to offer for sale shares of Common
Stock pursuant to this Plan shall represent and warrant to each Buyer that, as
of the date of the Offer for Sale Notice and the Closing Date, with such
representations and warranties surviving the Closing Date, that:
a. The Management Member has good and marketable title to the
Offered Shares, free and clear of any liens, pledges, encumbrances, options,
charges or claims of any kind whatsoever; and
b. The Management Member has the full right, power and authority to
sell, assign, transfer and deliver the Offered Shares to the Buyers.
11. REPRESENTATIONS AND WARRANTIES OF BUYERS
Each Buyer electing to purchase Offered Shares shall represent and
warrant to each Seller, as of the date of the Notice of Acceptance and the
Closing Date, that:
a. The Buyer is acquiring the Offered Shares for its own account,
for investment purposes only and not with a view to, and not for offer or sale
in connection with, any distribution or resale of the Offered Shares, and no one
other than the Buyer has any beneficial interest in the Offered Shares;
b. The Buyer is a major stockholder of the Company and has had
access to and has reviewed such information concerning the Company which the
Buyer considers necessary or appropriate to evaluate the risks and merits of an
investment in the Offered Shares;
c. The Buyer has had the opportunity to question, and has
questioned, to the extent deemed necessary or appropriate, representatives of
the Company so as to receive answers and verify information obtained in the
Buyer's examination of the Company, including the information referred to in
Subsection 11.b and any other documents or information that the Buyer has
reviewed in relation to its investment in the Company;
7
<PAGE>
d. No oral or written representations have been made to the Buyer in
connection with the Buyer's acquisition of the Offered Shares which were in any
way inconsistent with the information reviewed by the Buyer;
e. The Buyer has such knowledge and experience in financial, tax and
business matters generally that it is capable of evaluating the merits and risks
of its acquisition of the Offered Shares;
f. The Buyer understands that the Offered Shares that it acquires
shall be restricted securities and may not, without full compliance with the
registration and prospectus delivery requirements of the Securities Act, be
offered, sold or delivered except in a transaction exempt from, or not subject
to, the registration and prospectus delivery requirements of the Securities Act;
g. The Buyer will not transfer or pledge any or all of the Offered
Shares in violation of the Securities Act or any applicable Blue Sky Laws and in
the event that the Buyer pledges any of the Offered Shares, Buyer will advise
the pledgee of the transfer restrictions imposed on the Offered Shares by this
Plan and will use its best efforts to obtain an undertaking from such pledgee
not to transfer such Offered Shares in violation of the Securities Act or
applicable Blue Sky Laws; and
h. The Buyer has full power and authority to purchase the Offered
Shares and to invest in the Common Stock, and such purchase, including any terms
and conditions applicable to purchases by the Buyer pursuant to this Plan,
constitutes the valid and legally binding obligation of the Buyer, enforceable
against the Buyer in accordance with its terms.
12. LEGENDS TO SHARE CERTIFICATES
The parties acknowledge that the share certificates representing the
shares of Common Stock issued to a Buyer following a purchase under this Plan
shall bear the following legends:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED OR SOLD, UNLESS IT HAS BEEN REGISTERED UNDER THE
SECURITIES ACT OR UNLESS AN EXEMPTION FROM REGISTRATION IS
AVAILABLE (AND, IN SUCH CASE, AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY SHALL HAVE BEEN DELIVERED TO THE
COMPANY TO THE EFFECT THAT SUCH OFFER OR SALE IS NOT REQUIRED
TO BE REGISTERED UNDER THE SECURITIES ACT).
THIS SECURITY IS SUBJECT TO CERTAIN VOTING AGREEMENTS,
RESTRICTIONS ON TRANSFER, AND
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OTHER TERMS AND CONDITIONS SET FORTH IN A STOCKHOLDERS
AGREEMENT, DATED AS OF MAY 22, 1996, A COPY OF WHICH IS ON
FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
THIS SECURITY IS SUBJECT TO CERTAIN TERMS AND CONDITIONS SET
FORTH IN THE NGC CORPORATION SENIOR MANAGEMENT SHARE SALE
PLAN, EFFECTIVE AS OF JANUARY 1, 1997, A COPY OF WHICH IS ON
FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
13. MISCELLANEOUS
a. GOVERNING LAW. This Plan and all actions taken hereunder shall
be governed by and construed in accordance with the laws of the State of
Delaware without regard to principles of conflict of laws thereunder.
b. CAPTIONS AND HEADINGS. Any titles and headings herein are for
reference purposes only, and shall in no way limit, define or otherwise affect
the meaning, construction or interpretation of any provisions of this Plan.
c. SEVERABILITY. In the event any provision of the Plan shall be
held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining part of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provisions had not been included.
d. OBLIGATIONS SEVERAL, NOT JOINT. The obligations of Sellers under
this plan shall be several and not joint. The obligation of Buyers under this
plan shall be several and not joint.
Exhibit A: Form of Offer of Sale Notice
Exhibit B: Form of Notice of Acceptance
Exhibit C: Form of Notice of Instruction
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EXHIBIT A
Any Management Member who desires to sell shares of Common Stock pursuant
to the Plan shall fill out and deliver the following (i) by telecopy to Kenneth
E. Randolph at telecopy number (713) 507-6808, and confirm the receipt thereof
by telephone at (713) 507-6816 (ii) by overnight courier to the address
specified below:
FORM OF OFFER OF SALE NOTICE
__________________, 19__
NGC Corporation
13430 Northwest Freeway
Houston, Texas 77040
Attention: Kenneth E. Randolph
Dear Mr. Randolph:
The undersigned Management Member under the NGC Corporation Senior
Management Share Sale Plan (the "Plan"), hereby advises you that I hereby elect
to sell the following number of shares of Common Stock, subject to all terms and
conditions set forth in the Agreement:
________________ Shares
I hereby expressly represent and warrant to the Buyers that the
representations and warranties set forth in Section 10 of the Plan are true and
correct as of this date and as of the Closing Date.
Very truly yours,
----------------------------------
Printed Name: --------------------
----------------------------------
Spouse Name:
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EXHIBIT B
If BG, Chevron or NOVA desires to purchase shares of Common Stock
offered for sale by Sellers pursuant to the Plan, they shall fill out and
deliver the following (i) by telecopy to Kenneth E. Randolph at telecopy number
(713) 507-6808, and confirm the receipt thereof by telephone at (713) 507-6816
and (ii) by overnight courier to the address specified below:
FORM OF NOTICE OF ACCEPTANCE
__________________, 19__
NGC Corporation
13430 Northwest Freeway
Houston, Texas 77040
Attention: Kenneth E. Randolph
Dear Mr. Randolph:
The undersigned, _________________________, under the NGC Corporation
Senior Management Share Sale Plan (the "Plan"), hereby advises you that the
undersigned hereby elects to purchase the following number of shares of Common
Stock being offered for sale by Management Members, subject to all terms and
conditions set forth in the Plan.
(Check all applicable boxes)
[_] _________________ shares (check this box only if less than one-
third of the Offered Shares).
[_] One-third of Offered Shares.
[_] One-third of Offered Shares, and
---
[_] pro rata share of any Offered Shares not purchased by
another Buyer or possible Buyer; or
[_] pro rata share of any Offered Shares not purchased by
another Buyer or possible Buyer up to ____________
additional shares.
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I hereby expressly represent and warrant to the Sellers the
representations and warranties set forth in Section 11 of the Agreement are true
and correct as of this date and as of the Closing Date.
Very truly yours,
_______________________________________,
a ________________ corporation
By:_______________________________
Name:_____________________________
Title:____________________________
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EXHIBIT C
NOTICE OF INSTRUCTION
To: Kenneth E. Randolph
General Counsel
NGC Corporation
On behalf of __________________________________, I hereby irrevocably
authorize and instruct you to direct ChaseMellon Shareholders Services L.L.C.
(the "Transfer Agent") to effect the following transfers of Common Shares of NGC
Corporation immediately following your wire transfer of payment to me for such
shares.
(i) ____________________________________
(ii) ____________________________________
(iii) ____________________________________
In connection with the foregoing transfers, you are further authorized
and directed to tender to the Transfer Agent share certificates for Common
Shares of NGC Corporation which I have deposited with you.
Dated this ____ day of _________________, 19___
_____________________________________
Seller Name: _______________________
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