VOTING AGREEMENT, dated as of February 20, 1998 (the
"Agreement"), by and among Universal Compression Holdings, Inc. ("Holdings"),
Xxxxxx Xxxxxx Partners III, L.P., a Delaware limited partnership ("CHPIII,"
and together with related accounts or funds managed by Xxxxxx Xxxxxx, Inc.
("CHI") or an Affiliate of CHI, referred to herein collectively as "CHP"), and
the undersigned (collectively, the "Co-Investors").
WHEREAS, Holdings and the Co-Investors are parties to a
Stock Purchase Agreement, dated as of the date hereof (the "Purchase
Agreement"), whereby the Co-Investors purchased from Holdings and Holdings
issued and sold to the Co-Investors (i) the number of shares of Common Stock,
par value $.01 per share ("Common Stock") of Holdings and (ii) the number of
shares of Series A Preferred Stock, par value $.01 per share ("Preferred
Stock") of Holdings set forth opposite the name of each Co-Investor on Annex
I.
WHEREAS, in connection with such purchase, CHPIII, Holdings
and the Co-Investors hereby wish to set forth their understanding with respect
to the manner in which each Co-Investor will exercise its voting rights as a
stockholder of Holdings in matters requiring the vote of the stockholders of
Holdings.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions.
"Affiliate" shall, as to Holdings or any other specified
Person, mean (i) any Person directly or indirectly controlling, controlled by
or under direct or indirect common control with Holdings (or other specified
Person), and (ii) any Person, directly or indirectly, having Beneficial
Ownership of at least 10% of any class of outstanding capital stock or other
evidence of Beneficial Ownership in Holdings or such other Person; provided,
however, that no holder of Holdings Securities shall by reason of such holding
be an Affiliate of Holdings or any of its Subsidiaries for purposes of this
Agreement, and (iii) any employee of CHI or Affiliates of CHI.
"Beneficial Ownership" shall be interpreted herein to have
the same meaning as set forth in Section 13(d) of the Exchange Act.
"Change in Control" shall mean any of the following: (i) a
majority of Holdings' board of directors shall be comprised of Persons other
than designees of the entities or persons constituted within CHP or Affiliates
of CHP and of CHP's Affiliates; (ii) CHP and the Affiliates of CHP shall cease
to have Beneficial Ownership, directly or indirectly, of equity securities of
Holdings representing at least 30% (until Holdings' initial public offering of
Common Stock has been consummated or, if no Change in Control has occurred
prior thereto, 15% thereafter, in each case) of the total combined ordinary
voting power of all equity securities of Holdings; (iii) the sole general
partner of CHPIII shall be neither Xxxxxx Xxxxxx Partners III GP, Inc. or an
entity controlling,
controlled by or under common control with Xxxxxx Xxxxxx Partners III GP,
Inc.; or (iv) all or substantially all the assets of Universal Compression,
Inc. and its Subsidiaries are directly or through transfer of equity interests
transferred or otherwise disposed of in one or a series of related
transactions to an entity in which CHP and its Affiliates fail to own the
foregoing percentages, as appropriate, and after which Holdings ceases to own
directly or indirectly substantially all equity interests of each entity
acquiring such assets.
"CHP" shall have the meaning set forth in the first
paragraph hereof.
"CHPIII" shall have the meaning set forth in the first
paragraph hereof.
"CHI" shall have the meaning set forth in the first
paragraph hereof.
"Common Stock" shall have the meaning set forth in the
recital hereto.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and all rules and regulations promulgated thereunder.
"Extraordinary Event" shall have the meaning set forth in
Section 2.
"Holdings" shall have the meaning set forth in the first
paragraph hereof.
"Holdings Securities" shall mean the Common Stock and the
Preferred Stock as collectively referred to herein.
"Preferred Stock" shall have the meaning set forth in the
recital hereto.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and all rules and regulations promulgated thereunder.
"Subsidiary" shall mean any Person of which Holdings or
other specified Person now or hereafter shall at the time own directly or
indirectly at least a majority of the outstanding capital stock (or other
evidence of Beneficial Ownership) entitled to vote generally or at least a
majority of the partnership, joint venture or similar interest, or in which
Holdings or other specified Person is a general partner or joint venturer
without limited liability.
2. Agreement to Vote Shares. From and after the date of this
Agreement until the occurrence of a Change in Control, in the event that there
shall be presented for a vote by the holders of Holdings Securities at any
regular or special meeting of the stockholders of Holdings, or in any written
consent executed by holders of Holdings Securities in lieu of such a meeting
of stockholders, any matter, proposition or proposal relating to any of:
(a) (i) an increase or decrease in the authorized
capital of Holdings, (ii) the creation or authorization of any class of
capital stock of Holdings, (iii) the issuance or sale of any shares of capital
stock or rights to acquire capital stock of
2
Holdings or any subsidiary of Holdings (by conversion, exercise of a warrant
or option or otherwise);
(b) any amendment of the certificate of
incorporation or by-laws of Holdings;
(c) the incurrence of any indebtedness for borrowed
money;
(d) the appointment, election, termination or
removal of any officer or director of Holdings;
(e) the declaration or payment of any dividend or
other distribution to the stockholders of Holdings;
(f) (i) entering into any transaction of merger,
consolidation or amalgamation, or liquidation, winding up or dissolution, (ii)
the conveyance, sale, lease, transfer or other disposition of, in a
transaction or related series of transactions, substantially all of Holdings'
or any of its Subsidiaries' property, business or assets, (iii) acquisition by
purchase or otherwise of all of the capital stock or other evidences of
Beneficial Ownership of Holdings or any of its Subsidiaries, or (iv) any
recapitalization or similar restructuring transaction;
(g) the acquisition, directly or indirectly, of a
significant amount of assets other than in the ordinary course of business;
(h) the sale or disposition of, directly or
indirectly, a significant amount of assets other than in the ordinary course
of business;
(i) adoption of any stock option plan for employees
or any material changes in any such stock option plan or any other executive
compensation plan of Holdings or any of its Subsidiaries;
(j) any change in the annual compensation of any
officer of Holdings;
(k) any other extraordinary transaction, including
any transaction that changes or would change the nature of the business of
Holdings or its Subsidiaries; and
(l) any other proposal to be voted on or consented
to by stockholders of Holdings;
each Co-Investor agrees (and, as a condition to its transfer of any Holdings
Securities to a Person not otherwise a party to this Agreement or to the
Voting Trust Agreement, dated the date hereof, by and among Holdings, Xxxx X.
Xxxxxx, as voting trustee, and certain of the stockholders of Holdings, shall
cause such transferee to agree) to vote and execute written consents for all
shares of Holdings Securities which it is or becomes entitled to
3
vote in the same proportion for and against such matter, proposition or
proposal as CHPIII shall vote, or execute written consents with respect to,
its shares of Holdings Securities with respect to such matter, proposition or
proposal.
3. Further Action. Each party hereto agrees to execute and
deliver any instrument and take any action that may reasonably be requested by
any other party for the purpose of effectuating the provisions of this
Agreement.
4. Miscellaneous Provisions.
(a) Assignment; Binding Effect. Except as otherwise
provided in this Agreement (and except for any transfer by Mellon Bank, N.A.
as trustee for the Xxxx Atlantic Master Trust to any successor trustee or
nominee for, or successor by reorganization of, such Trust), no right under
this Agreement shall be assignable and any attempted assignment in violation
of this provision shall be void. This Agreement, and the rights and
obligations of the parties hereunder, shall be binding upon and inure to the
benefit of any and all successors, permitted assigns, personal representatives
and all other legal representatives, in whatsoever capacity, by operation of
law or otherwise, of the parties hereto, in each case with the same force and
effect as if the foregoing persons were named herein as parties hereto.
(b) Notices. Any notice or other communication
required or which may be given hereunder shall be in writing and shall be
delivered personally, telecopied with confirmed receipt, sent by certified,
registered, or express mail, postage prepaid, or sent by a national next-day
delivery service to the parties at the following addresses or at such other
addresses as shall be specified by the parties by like notice, and shall be
deemed given when so delivered personally or telecopied, or if mailed, 2 days
after the date of mailing, or, if by national next-day delivery service, on the
day after delivery to such service as follows:
(i) If to Holdings, to it at the following address:
Xxxxxx Xxxxxx, Inc.
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
(ii) If to CHPIII or the other entities or persons
constituted within CHP, to any of them at the
following address:
Xxxxxx Xxxxxx Partners III, L.P.
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
4
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, Esq.
(iii) If to the Co-Investors, to them at their
respective addresses set forth next to their names
on Annex II hereto;
or at such other address or addresses as either party hereto shall have
specified by notice in writing to the other party (provided, that such notice
of change of address shall be deemed to have been duly given only when
actually received).
(c) Applicable Law; Consent to Jurisdiction. This
Agreement and the validity and performance of the terms hereof shall be
governed by and construed in accordance with the laws of the State of New York
without regard to principles of conflicts of law or choice of law. The parties
hereto hereby agree that all actions or proceedings arising directly or
indirectly from or in connection with this Agreement shall be litigated only
in the Supreme Court of the State of New York or the United States District
Court for the Southern District of New York located in New York County, New
York. To the extent permitted by applicable law, the parties hereto consent to
the jurisdiction and venue of the foregoing courts and consent that any
process or notice of motion or other application to either of said courts or a
judge thereof may be served inside or outside the State of New York or the
Southern District of New York by registered mail, return receipt requested,
directed to such party at its address set forth in this Agreement (and service
so made shall be deemed complete five days after the same has been posted as
aforesaid) or by personal service or in such other manner as may be
permissible under the rules of said courts.
(d) Entire Agreement; Amendments and Waivers. This
Agreement sets forth the entire understanding of the parties with respect to
the subject matter hereof. The failure of any party to seek redress for the
violation of or to insist upon the strict performance of any term of this
Agreement shall not constitute a waiver of such term and such party shall be
entitled to enforce such term without regard to such forbearance. This
Agreement may be amended only by the written consent of Holdings, CHPIII, and
the Co-Investors holding a majority of Holdings Securities (excluding Holdings
Securities held by CHPIII or any entity constituted within CHP), and each
party hereto may take any action herein prohibited or omit to take action
herein required to be performed by it, and any breach of or compliance with
any covenant, agreement, warranty or representation may be waived only by the
written waiver of the party against whom such action or inaction may
negatively affect, but, in any case, such consent or waiver shall only be
effective in the specific instance and for the specific purpose for which
given.
5
(e) Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
(f) Severability. If any term, provision, covenant
or restriction of this Agreement, or any part thereof, is held by a court of
competent jurisdiction or any foreign federal, state, county or local
government or any other governmental, regulatory or administrative agency or
authority to be invalid, void, unenforceable or against public policy for any
reason, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
(g) Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all
of which shall constitute one and the same instrument, and it shall not be
necessary in making proof of this Agreement to produce or account for more
than one such counterpart.
(h) Specific Performance. Each of the parties
hereto acknowledges and agrees that in the event of any breach of this
Agreement, the non-breaching party would be irreparably harmed and could not
be made whole by monetary damages. It is accordingly agreed that the parties
hereto shall and do hereby waive the defense in any action for specific
performance that a remedy at law would be adequate and that the parties
hereto, in addition to any other remedy to which they may be entitled at law
or in equity, shall be entitled to compel specific performance of this
Agreement in any action instituted in the Supreme Court of the State of New
York or the United States District Court for the Southern District of New
York, or, in the event such courts shall not have jurisdiction of such action,
in any court of the United States or any state thereof having subject matter
jurisdiction of such action.
(i) Survival of Covenants. All covenants,
agreements, representations and warranties made herein
or in any other document referred to herein or delivered to a party pursuant
hereto or in connection herewith shall survive the execution and delivery to
such party of this Agreement and the Holdings Securities.
(j) Legends. All certificates evidencing Common
Stock and Preferred Stock held by the Co-Investors shall bear a legend to the
effect that the holders thereof are subject to the voting obligations as set
forth in this Agreement.
6
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first set forth above.
XXXXXX XXXXXX PARTNERS III, L.P.
BY: XXXXXX XXXXXX INC.,
its Investment Manager
/s/ Xxxxxx Xxxxx
By: ________________________
Name: Xxxxxx Xxxxx
Title:
UNIVERSAL COMPRESSION
HOLDINGS, INC.
/s/ Xxxxx Xxxxxx
By: ________________________
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
7
CO-INVESTORS
MELLON BANK, N.A., AS TRUSTEE
FOR THE XXXX ATLANTIC MASTER
TRUST, AS DIRECTED BY XXXX
ATLANTIC CORPORATION
/s/ Xxxxxxxxxx Xxxx
By: ________________________
Name: Xxxxxxxxxx Xxxx
Title: Authorized Signature
FIRST UNION CAPITAL PARTNERS, INC.
/s/ Xxxxx X. Xxxx
By: ________________________
Name: Xxxxx X. Xxxx
Title: Senior Vice President
BT CAPITAL PARTNERS, INC.
/s/ Xxxxxxx X. Xxxxx III
By: ________________________
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
WILMINGTON TRUST, AS TRUSTEE OF
DU PONT PENSION TRUST
/s/ Xxxx Xxxxx Xxxxxx
By: ________________________
Name: Xxxx Xxxxx Xxxxxx
Title: Vice President
XXXXX UNIVERSITY THIRD
CENTURY FUND
/s/ Xxxxxx Xxxxxx
By: ________________________
Name: Xxxxxx Xxxxxx
Title: Vice Chairman
8
ANNEX I
Co-Investor Number of Shares Purchase Price
----------- ---------------- --------------
Common Preferred Common Preferred
Stock Stock Stock Stock
----- ----- ----- -----
Mellon Bank, N.A., as Trustee for 32,000 128,000 $1,600,000 $6,400,000
the Xxxx Atlantic Master Trust
First Union Capital Partners, Inc. 32,000 128,000 $1,600,000 $6,400,000
BT Capital Partners, Inc. 32,000 128,000 $1,600,000 $6,400,000
Wilmington Trust, as Trustee for Du 32,000 128,000 $1,600,000 $6,400,000
Pont Pension Trust
Xxxxx University Third Century Fund 2,000 8,000 $100,000 $400,000
9
ANNEX II
Co-Investor Address
----------- -------
Mellon Bank, N.A., as Trustee for the Xxxx One Mellon Bank Center
Atlantic Master Trust Room 3346
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxx
with a copy to:
Xxxx Atlantic Management Company
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: A. Xxx Xxxxxxx, Xxxxxx X. Xxxxxxx
and Xxxxx Xxxxxxxx, Esq.
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
First Union Capital Partners, Inc. One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
BT Capital Partners, Inc. Mail Stop 2255
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Wilmington Trust, as Trustee for the Du Pont Du Pont Pension Fund Investments
Pension Trust Delaware Corporate Center
0 Xxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Xxxxx University Third Century Fund 000 Xxxxxx Xxxxxx
Xxx X
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
10
